JUDGMENT
Kanhaiya Singh, J.
1. This a second appeal by the plaintiffs from the judgment and decree of the Additional Subordinate Judge of Hazaribagh, dated 4th June, 1955, which reversed the decree of the Munsif of Giridih, dated 29th August, 1953.
2. The facts necessary for the disposal of the present appeal may be shortly stated as follows. The disputed lands are situate in two villages, Dewandih and Manjhidih and belong to Lekha Ram, defendant No. 18. By registered sale deeds dated 6th August, 1941, Lekha Ram conveyed these lands to Bharat Sao, defendant 19, Four years later, Bharat in his turn transferred these lands by registered sale deeds dated 3rd July, 1945, to Damini Devi, defendant 20. Subsequently, in 1950 by two registered sale deeds dated 1st March, 1950, Damint Devi in her turn transferred these lands to the plaintiffs. The plaintiffs’ case was that they acquired good title to the disputed lands and entered into possession thereof, and their predecessors were, in possession before Prior to the plaintiffs purchase defendants 6 and 17 had obtained a sale deed in respect of these lands from Lekha Ram on 16th February, 1949.
They asserted title to these lands on the strength of their prior sale deed from Lekha Ram, with the result that only about three months after the plaintiffs’ purchase, dispute about possession arose, giving rise to serious apprehension of the breach of the peace, information whereof was lodged by the chaukidar at the Gandey police station on 24th May, 1950. A proceeding under Section 144 or the Code of Criminal Procedure was instituted, which was later converted into a proceeding under Section 145 of the Code. It was decided in favour of the defendants respondents. Hence the present suit by the plaintiffs. In their written statement, the defendants denied the title of the plaintiffs and characterised the sale deeds in their favour as farzi.
They also pleaded that those sale deeds were invalid and illegal. Defendants 6 and 17, the main contesting defendants asserted their title and possession on the strength of the sale deed dated 16-2-1949 executed in their favour by Lekha Ram, I may state here that defendant 17 is the wife of Lekha Ram.
3. Both the Courts below held that the plaintiffs were the real purchasers and the sale deeds in their favour were genuine. On the question of the legality of the sale deeds, they differed. The defendants attacked the legality of the sale deeds on the ground of contravention of Section 46 of the Chota Nagpur Tenancy Act. Their case was that the disputed lands were situate within the police station of Gandey, that Bharat Sao had no residence therein and that, therefore, the sale deeds executed by Lekha Ram in favour of Bharat Sao, being contrary to the provisions of Section 46 of the said Act, were invalid and illegal and passed no good title to him, and consequently, the Vendee, his successor-in-interest, Damini Devi, and the plaintiffs also acquired no good title.
The learned Munsif held that Bharat Sao had residence within the Gandey police station and negatived the defence. The learned additional Subordinate Judge, on the other hand, held that Bharat Sao had no permanent residence within that police station, and, therefore, the plaintiffs had not acquired good title, and accordingly dismissed the suit.
Section 46 (1) of the Chota Nagpur Tenancy Act prohibits transfer by a rajyat of his right in his holding or any portion thereof by sale or gift and also by mortgage or lease for any period exceeding five years. Sub-section (4) (a) lays down one of the exceptions to this general law and permits sale of occupancy holdings between non-aboriginal occupancy raiyats, provided they are residents within the local limits of the police station within which the holdings are situate. It is in the following terms:-
“(4) (a) An occupancy raiyat, who is not an aboriginal or a member of a scheduled Caste, may transfer his right in his holding or any portion thereof to any person who is resident within the local limits of the police station area within which the holding is situate by sale, exchange, gift, will, mortgage or lease,”
There is no dispute that Lekha Ram, Damini Devi and the plaintiffs resided within the local limits of the Gandey police station wherein the disputed lands lay. The controversy centres round the residence of Bharat Sao. If Bharat Sao was not a resident within the local limits of the Gandey police station, the sale deeds executed by Lekha Ram in his favour were invalid and passed no good title. Ex hypothesi, Damini Devi and the plaintiffs also acquired no title to the disputed lands. Mr. Lalnarayan Sinha appearing for the appellants contended that this defence was not available to the defendants, because it was not specifically pleaded. He also urged that the evidence on the record did not justify the conclusion of the learned Subordinate Judge that Bharat Sao had no residence within the Gandey police station. I am inclined to accept this contention as correct. The sale deeds described Bharat Sao as a resident of village Kuanr dib, which is within the Gandey police station., The plaintiffs also called witnesses to testify to this fact. The evidence indicated that Bharat Sao had a hut at Kuanrdih. The learned Munsif relied upon this evidence. The learned Subordinate Judge upset the finding of the learned Munsif on the ground that ‘residence’ within the meaning of Section 46. of the Chota Nagpur Tenancy Act meant permanent place of abode and did not include a temporary residence, that ‘hut’ did not import ‘permanent residence’ and that the plaint showed that Bharat Sao was a resident of Giridih.
It appears that the conclusion of the learned Subordinate Judge was largely coloured by the present residence of Bharat Sao, as given in the plaint. The learned Subordinate Judge was clearly wrong in attaching undue importance to the description of Bharat’s residence in the plaint. In order to Judge the legality of the transaction of sale, the residence of Bharat on the date of the sale and not on the date on which the plaint was filed, was material. It may be that on the date the plaint was filed, that is, on 9-6-1951, he was residing at Giridih.
This does not conclude the question whether or not he resided within the Gandey police station on the date of sale in 1941. It is tine that, as laid down by a Bench of this court in Chand Manjhi v. Surja Manjhi, 1955 BLJR 275 ‘resident’ as used in Sub-section (4) (a) of Section 46 means one having permanent place of abode and does not include temporary residence. But ‘hut’ as wrongly assumed by the “learned Subordinate Judge, does not necessarily mean “temporary residence’. The nature of the building used by any person is not decisive of the question whether the residence was permanent or temporary. It depends upon the status of the person and the conditions and usage obtaining in the locality. It is not unusual even for a well placed man to have a hut house in a particular locality.
It is really a question of fact whether or not Bharat Sao had residence at Kuanrdih, whether it was his permanent residence or whether his residences at both Giridih and Kuanrdih were permanent. There is no evidence on the record to show that his residence at Kuanrdih wan a temporary residence. In fact, defendants led no evidence on that point and wanted to build argument on disconnected facts elicited in evidence which, taken singly or conjointly, do not establish impermanence of his Kuanrdih residence. The sale deeds showed his residence both at Giridih and Kuanrdih. This circumstance also does not lead necessarily to the conclusion that one of his residences was temporary, namely, the one at Kuanrdih, nor is such a conclusion derivable from his present permanent residence of Giridih.
It is Hot uncommon that a person has two permanent residences. It is not unlikely that on the date of the sale his residences at Kuanrdih and Giridih were both permanent. Any way, this is also a question of fact which has to be pleaded and established. In fact, there is no material at all to demolish the correctness of the recital in the sale deeds regarding his residence. It is manifest, therefore, that the circumstances relied upon by the learned Subordinate Judge are inconclusive, and his finding that Bharat Sao had no permanent residence at Kuanrdih is not warranted on the evidence on the record. In the circumstances, there is no reason why the plaintiffs’ evidence relied upon by the learned Munsif should not be accepted as correct. It must be held, therefore, that Bharat Sao had permanent residence at Kuanrdih,, Accordingly the sale deeds did not contravene the provisions of Section 46 of the Chota Nagpur Tenancy Act, and were not illegal.
4. Apart from this, in the absence of pleading, the defendants should not have been permitted to raise this question, at the time of hearing or at the time of argument. They did not plead in their written statements that Bharat Sao had no residence at Kuanrdih or that his residence there was temporary. As laid down by their Lordships of the Privy Council in Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) where a claim has never been made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward.
Their Lordships of the Judicial Committee affirmed this principle subsequently in the case of Hem Chand v. Pearey Lal, AIR 1942 PC 64. They have observed therein that the procedure adopted by the trial Court of allowing the parties to adduce evidence on points not raised in the pleadings or issues was irregular and should not have been allowed without amending the pleadings and raising the necessary issues. Relying upon these Privy Council decisions, a Bench of this court laid downs a similar principle in Jaigobind v. Nagesar Prasad, AIR 1953 Pat 326.
It is plain, therefore, that the evidence was insufficient and inconclusive to hold that Bharat Sao had no residence within the Gandey police station and that in absence of pleadings, the defendants are not entitled in law to challenge the validity of the sale deeds on the ground of non-residence of Bharat Sao within the Gandey police station.
5. Mr. B.Q. De for the respondents, however, contended that the onus was upon the plaintiffs appellants to plead and establish by proper evidence that Sub-section (4) (a) of Section 46 of the Act operated in this case and that the bar imposed by the main ‘section did not apply. He relied upon a decision of the Privy Council in Jagdish Narain v. Ahmad Khan, AIR 1946 PC 59. In my opinion, this contention is not sound and cannot be accepted as correct.
It is evident that the residence of Bharat Sao within the local limits of the Gandey police station was a condition precedent to the validity of the sale deeds. The important question is who should have pleaded the performance of this condition in the pleadings. When there is no evidence to establish conclusively that Bharat Sao resided within the Gandey police station, the question hag to be decided according to the rule of pleading. The anile of pleading bearing on this question is contained in rule 6 of Order 6 and rule 2 of Order 8 of the Code of Civil Procedure. Rule 6 of Order 6 provides as follows:-
“Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.”
Rule 2 of Order 8 is in the following terms :-
“The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such, grounds of defence as if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.”
It Will be observed that Rule 6 of Order 6 applies to both, the plaintiff and the defendant, whereas Rule 2 of Order 8 relates to the pleadings by the defendants and emphasises the duty of a defendant to particularise in his defence all questions of fact and law which he desires to contend. Therefore, where a defendant is concerned, Order 6, Rule 6 must be read along with Order 8, Rule 2. Order 6, Rule 6 lays down that any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant.
Under this rule it is not necessary for the plaintiff or the defendant to plead expressly the performance of a condition precedent. An averment of the due performance of all conditions precedent is implied in every pleading, and, therefore the opposite party must specify distinctly any condition, the performance or occurrence of which he intends to contest. Further, under Rule 2 of Order 8 the defendant has to plead all facts showing illegality of any transaction. Where, however, a party contests the performance of a condition precedent, the onus lies on the other party to prove the performance of that condition I would refer to a Bench decision of this Court in Krishna Prasad v. Adyanath Ghatak, AIR 1944 Pat 77. In that case the plaintiff sought to eject the defendant from the disputed land and the building standing thereon. The question was whether notice had been served.
The argument put forward in that case was that notice in writing had been neither proved nor even pleaded, and, therefore, the suit for ejectment could not succeed. This point was raised for the first time in the High Court and their Lordships negatived this argument and held that by virtue of Order 6, Rule 6 read along with Order 8, Rule 2, it was for the defendant to raise in his written statement the plea of want of notice. They have observed as follows :
“Moreover, Order 6, Rule 6 must be read along with Order 8, Rule 2. It is for the defendant to raise by his pleading all matters which show the suit not to be maintainable. Order 6, Rule 6 merely says any condition ‘precedent”, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading. Subject to that, all conditions precedent are to be taken as implied in the pleading. The plaintiff could not, in the first instance, anticipate any contest on this point. Therefore, it was not for him to plead the condition precedent in the first instance. It was for the defendant to raise the point if he wished to contest it, and this he did not do. Hence no issue upon the point was framed or decided. A general avennent of the performance of all conditions precedent is implied in every pleading, and, therefore, it need not be alleged.”
In the present case, the residence of Bharat Sao within the Gandey police station was a condition precedent to the validity of the sale in his favour. Accordingly, the performance of this condition, must be implied in the plaint under Order 6, Rule 6 of the Code, and, therefore, both under Order 6, Rule 6, and Order 8, Rule 2 it was incumbent upon the defendants to deny the performance of the said condition and also to plead all facts which establish the illegality of the transaction of sale; in other words it was for the defendants to plead in the written statement that Bharat Sao never resided within the Gandey police station. In the absence of such pleading the performance of the above condition must be implied, and, therefore, the sale cannot be said to be invalid on that ground. Had the defendants raised such plea, the onus would undoubtedly have been on the plaintiffs to prove the fulfilment of that condition, and then the facts relied upon by Mr. De would have been used to show that the onus had not been discharged by the plaintiffs effectively. It follows that on the pleadings and on the evidence, it is not open to the defendants to challenge the validity of the sale deeds on the ground of non-residence of Bharat Sao within the Gandey police station.
6. The decision of their Lordships of the Privy Council in the case of Jagdish Narain, AIR 1946 PC 59, referred to above, has no bearing on this case. Mr. De referred to the following observations of their Lordships in that Case:-
“The plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiffs title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs’ title, and under this plea they could avail themselves of any defect which such title disclosed.”
His contention is that the defendants had challenged the legality of the sale in favour of the plaintiffs, and they were not required to plead anything more. The defendants could take advantage of any defect; in the title of the plaintiffs as disclosed in the evidence. It is clear that their Lordships of the Privy Council were not considering in that case the rule of pleadings, and the effect of Order 6, Rule 6 and Order 8, Rule 2 was not in dispute.
It Cannot be urged that their Lordships meant to abrogate the provisions of those rules. When it was not necessary for the plaintiffs to plead expressly the performance of the said condition, and the defendants had not contested its performance, it is difficult to unsuit the plaintiffs, as contended by Mr. De because the residence of Bharat Sao within the Gandey police station had not been proved. The plaintiffs were armed with the legal assumption of the performance of that condition. Their Lordships of the Privy Council do not mean to deprive such a plaintiff of this legal advantage in his favour. The position would have been different if the defendants had pleaded non-performance of the said advantage.
In the present case, the defendants had not challenged the residence of Bharat Sao within the Gandey police station. Therefore, they could not take advantage of that circumstance to prove the illegality of the sale. To such a case the said observations of their Lordships of the Privy Council do not apply, and the contention of Mr. De must be overruled.
7. Before I conclude, it will be necessary to dispose of a preliminary point that the appeal has abated, on the ground that Nageshwar Rai, Umesh-war Raj and Radha Devi, the legal representatives of appellant Babulal Rai deceased had not been substituted in his place on his death. A report was called for from the lower Court whether the aforesaid three persons are still alive and are the legal representatives of Babul’al Raj. The learned Munsif has submitted his report that Radha Devi is not the daughter of Babulal Rai, that Nageshwar Rai and Umeshwar Rai are not the sons of Mathura Devi and Ajhola Devi, respectively, and that Mathura Devi and Ajhola Devi are not the daughters of Babulal Rai.
In other words, he has found that Radha Devi, Nageshwar Rai and Umeshwar Rai are alive, but they are not the legal representatives of Babulal Rai. The respondents filed an objection to this report, but at the time of hearing it was not pressed. The report of the learned Munsif is sufficiently supported by the evidence on record and must be accepted as correct. It must be held, therefore, that the aforesaid persons are not the legal representatives of Babulal Raj and accordingly there is no abatement of the appeal.
8. For these reasons, this appeal is allowed with costs throughout. The decree of the lower appellate Court is set aside and that of the learned Munsif restored.
Ramaswami, C.J.
9. I agree,