JUDGMENT
R.K. Dash, J.
1. This appeal by the plaintiff arises out of a suit for recovery of possession and realisation of damages at the rate of Rs. (sic) per day in respect of a house situated over the property described in the schedule appended to the plaint. Pramod Kumar Patra, defendant No. 1 was the main contestant in the suit. His father Kandha Patra was defendant No. 2 and upon his death, his 5 daughters were substituted as defendants 2/a to 2/e.
2. Plaintiff’s case, shortly stated, was that Kandha Patra, defendant No. 2 out of his own earning had purchased the suit property and the house standing thereon and since purchase he had been possessing the same as owner thereof.
After death of his wife, he married Hema Patra, defendant No. 3. During his life time he transferred a portion of the suit house (7 cubitas x 100 cubitas) by registered sale deed D/- 21 -6-1972 in favour of defendant No. 3 and put her in possession. It was asserted that both defendants 2 and 3 sold the suit property and the house standing thereon by two different sale deeds dated 4-5 1973 to the plaintiff and left for Belaguntha. Since purchase, plaintiff acquired title thereto and possessed the same on her own right. Since defendant No. 1 had no house of his own he occupied the suit house with the permission of the plaintiff for a week. Thereupon he did not vacate the suit house. As a consequence he was served with a registered notice to give vacant possession. When he did not pay any head to such notice, plaintiff filed the present suit claiming the reliefs as aforesaid.
3. Defendants 2 and 3 did not file written statement and were set ex parte. Upon death of defendant No. 2, his legal representatives were substituted and of them minor defendants 2/c and 2/d filed written statement through G.A.I, supporting the case of defendant No. 1. The other substituted defendants did not appear. The main contesting defendant, namely, defendant No. 1 while denying title of defendants 2 and 3 to the suit property pleaded, inter alia, that his maternal grand-father Brundaban Choudhury had purchased the aforesaid property in the name of his father (defendant No. 1) for the benefit of his mother Saraswati. He further urged that his father being a poor man had no means to purchase the property in question and his mother Saraswati being the exclusive owner thereof was possessing the same on her own right. Upon her death it devolved upon his sisters and they are occupying the same as owners. He denied the plaintiff s case that defendant No. 3 is the legally married wife of his father. According to him, she is the widow of one Harihar Pande. Upon the death of his mother Saraswati, she (D-3) was brought by his father to look after his children. In the year 1971 his father suffered from paralysis and high blood pressure and thus was totally dependent on defendant No. 3 who having prevailed upon him got a nominal sale deed in respect of a part of the suit property (7 cubits x 100 cubits) executed on 21-6-1972 in her name. He specifically urged that though the suit property comes within Beguda Sub-registry,
but in order to get the sale deed registered at Bhanjanagar, defendant No. 3 got 1 cent of land in Bajaragada included therein and this being a fraud on registration, no title to the said property did pass to her. The deed is a fraudulent one and the same was got executed from defendant No. 2 when he was physically unwell and mentally imbalanced. By the aforesaid deed no title having passed to defendant No, 3, the plaintiff did not acquire any right or title in respect of the very same property which she alleged to have purchased from her. As regards the remaining portion of the suit property, defendant No. 1 stoutly denied the plaintiff’s assertion that she purchased the same from defendant No. 2 on the very day defendant No. 3 registered the sale deed. He also denied and disputed the plaint averment that his possession of the suit property was permissive one, that is to say, on his request the plaintiff permitted him to occupy the suit house for 7 days only and thereafter he did not give vacant possession to her. Since his possession was not permissive, he denied his liability to pay any damage to the plaintiff as claimed.
4. On the above pleadings, learned trial Court struck several issues of which 2 were major issues, namely, (1) whether the sale deed in favour of defendant No. 2 was benami for defendant No. 1’s mother ? and (2) whether the sale deed executed by defendant No. 2 in favour of defendant No. 3 and the sale deeds in favour of plaintiff executed by defendants 2 and 3 separately were fraudulent?
5. Both parties in support of their respective cases led evidence, both oral and documentary, and the learned trial Court upon consideration of the same held that defendant No. 2 was the real purchaser of the suit property and thus had acquired title to it. As regards the second issue, it held that on the strength of the sale deed executed by defendant No. 2 in respect of 5 cubit x 100 cubits of the suit property the plaintiff acquired title and thus is entitled to recover possession of the same from defendant No. 1. In so far as the sale deed obtained from defendant No. 3 is concerned, learned trial Court held that since the same was registered in Bhanjanagar Sub-registry by including 1 cent of land which did not belong to him, no title in respect of the property (7 cubits x 100 cubits) covered under the sale deed did pass to the plaintiff, the reason being that it was a fraud
on registration. With regard to other issues, the court answered the same in favour of the plaintiff. So far as plaintiff’s claim of damage is concerned, since she was held to have not acquired title in respect of whole of the suit property, the Court allowed the same @ Re. 1/- per day. Having held thus, it decreed the suit in part as aforesaid and it is against those parts of the judgment and decree, which have gone against the plaintiff, the present appeal is filed.
6. The sole question for consideration in the present appeal is whether the sale deed executed by defendant No, 2 in favour of defendant No. 3 in respect of that part of the suit property covered thereunder is invalid, because of the reason that registration was effected in Sub-Registrar’s office at Bhajanagar and not at Bugude within whose jurisdiction the said property is situate. If this question is answered in the affirmative, then it has to be held that subsequent transfer of the very same property by defendant No. 3 in favour of the plaintiff did not confer any title on her. In the sale deed marked Ext. B, one cent of land of village Bajragada, situated within the jurisdiction of sub-Registrar, Bhanjanagar, was included. The consistent case of defendant No. 1 is that the said small patch of land appertaining to plot No. 140(2) under Khata No. 41 of village Bajragada did not belong to defendant No. 2, the transferor and in order to confer jurisdiction on the Sub-Registrar of Bhanjanagar to register the sale deed in question, the same was included in the deed. Plaintiff led no evidence either by examining her vendor, defendant No. 3 or any of the witnesses to the sale deed. Ext. B or by bringing in documentary evidence on record to prove that defendant No. 2 had either title or possession over the said small patch of land. Reference may be made to her own evidence who being examined as P. W. 4 did not whisper anything that the said land is belonged to defendant No. 2 or that he was in possession of the same till he transferred it to defendant No. 3 under the sale deed, Ext. B. Section 28 of the Indian Registration Act says that all documents which are compulsorily registerable under Section 17 shall be presented for registration in the office of the Sub-Registrar within whose sub-district the whole or some portion of the property to which the document relates is situate. It is of course not disputed or denied by defendant No. 1 that the aforesaid
small patch of land is not situated in village Bajragada. But what he alleges is that the said property did not belong to defendant No. 2 and he only included the same in the deed in order to confer jurisdiction on the sub-registrar, Bhanjanagar to register the same. The evidence available on record does not show that defendant No. 2 had either title or possession in respect of the said property. In that view of the matter, the question arises as to what would be the effect of the sale deed, inasmuch as to whether the same is invalid since defendant No. 2 having no title or possession in respect of the said small patch of land, included it to enable the registration being effected in Bhanjanagar Sub-Registrar’s office and thus it amounted to fraud on registration.
7. Various circumstances may arise for unwanted inclusion of a property in a deed. For example, a property may not in fact exist at all and still it is included to enable registration being effected in a particular place. In such a case the registration is invalid. Secondly, the property
may exist, but the grantor has neither any title nor possession to it and both parties did not intend to include it as a subject matter of the deed. In such a case the registration is also invalid. Thirdly, the property though exists but it is not proved that it belongs to the grantor yet there is a bona fide belief on the part of the grantee that it belongs to the grantor. In that case the registration is not invalid and the burden lies on the party challenging the validity to prove that the inclusion of the property was intended to be fictitious by both the
parties.
8. The Privy Council had the occasion to deal with a similar type of case like the present one reported in AIR 1914 Privy Council 67 : Harendra Lal Roy Chowdhury v. Smt. Haridasi Devi, where there had been inclusion of certain properties in a mortgage deed which was found to be nonexistent. The question arose what would be the effect of the mortgage deed. Lord Moulton delivering the judgment observed (at p. 71):
“x x x Their Lordships hold that this parcel is in fact a fictitious entry, and represents no property that the mortgagor possessed or intended to mortgage, or that the mortgagee intended to form part of his security. Such an entry intentionally made use of by the parties for the purpose of obtaining registration in a district where no part of the property actually charged and intended to
be charged in fact exists, is a fraud on the Registration Law, and no registration obtained by means thereof is valid, x x x”
In another decision reported in AIR 1921 Privy Council 8, Mathura Prasad v. Chandra Narayan Chowdhury, the view expressed in Harendra Lal (supra) was followed. In that case one cowri share in the property situated in a village was included in the mortgage deed which was registered in Mozufferpur district. The defendants asserted that the cowri share included in the deed did not belong to the executant of the deed and it was so included for the purpose of getting the deed registered in Mozufferpur district. Admittedly the mortgagor had no property of his own in the said district. It was, however, alleged that one of the witnesses to the deed had sold one cowri of share to the mortgagor which was included in the mortgage deed. In support of the same no sale deed was produced and no foundation was laid for giving secondary evidence of the contents of any such deed. Moreover, there was no delivery of possession of the said one cowri share. In such circumstances, the Court concurred with the view expressed by the High Court that the deed was a mere device to evade the Registration Act.
9. This Court had occasion to deal with similar question in the case of Narayan Prasad Maity v. Dailari Das reported in (1972) 38 CLT 511. In that case property to the extent of Ac. 5.34 dec. was the subject matter of the suit. The said property situated within the Sub-Registry of Chandbali was transferred under a sale deed registered in the Sub-Registrars’ Office at Soro by including one dec. of land situated in mouza Anantapur, which village comes within the jurisdiction of the said Sub-Registrar. The contesting defendants challenged the validity of the said sale deed contending that the said one decimal of land did not belong to the vendors and they included the same with the sole object of conferring jurisdiction on the Sub-Registrar, Soro, to register the document. The trial Court found that the vendors had no title to the said one decimal of land of village Anantapur included in the sale deed. Despite that, it held that there was no fraud on registration because of the fact that the vendors intended to sell one decimal of land and the vendee in good faith believed the vendors to have title to it. On appeal, the learned appellate Court
reversed the aforesaid finding of the trial Court and held that inclusion of one decimal of land in the sale deed was with the sole object of conferring jurisdiction on the Sub-Registrar, Soro to register the document, and consequently declared the sale deed to be invalid. Ultimately the matter came to this Court in Second Appeal. The Court relying on the decisions of the Privy Council referred to above and on the basis of the findings of facts that the said one decimal of land did not belong to the vendors and that they were never in possession of it, held that the vendors neither intended to sell the aforesaid one decimal of land nor the vendee intended to purchase the same and the sole object with which the land was included in the deed was to confer jurisdiction on the Sub-Registrar, Soro and thus agreed with the finding of the first appellate Court that the sale deed being invalid case, did not confer title upon the plaintiff in respect of the suit properly.
10. The view expressed in Narayan Prasad (supra) has been distinguished by a later decision in the case of Bhagabat Basudev v. Api Bewa, AIR 1974 Orissa 180. In the said case, validity of a deed of gift executed by plaintiff No. 1 in respect of Ac. 1.85 dec. of land situated within the jurisdiction of the sub-registry, Cop was challenged on the ground that in order to get the said deed registered in Pipli Sub-Registrar’s office, two decimals of land lying within the jurisdiction of the said sub-Registry was included. It was urged by the contesting defendants that a small area of two decimals of land included in the deed not belong to plaintiff No. 1 and therefore, the registration effected at Pipli amounted to fraud on registration and consequently rendered the deed invalid. In order to prove the deed to be a valid one, plaintiff examined the, owner of the aforesaid two decimals of land as P. W. 7 who stated that he had orally sold the said land to the plaintiff No. 1 for a consideration of Rs. 20/- and subsequently he cultivated the same under her as a bhag tenant. This evidence was assailed by the counsel for the contesting defendants-appellants urging that in absence of any evidence that the oral sale was followed by delivery of possession, it must be held that there was no valid sale. Evidence of P. W. 7 was also challenged on another ground, that the said two decimals of land alleged to have been transferred appertained to sikim khata and sikim right being not transferrable it must be held that the transferee did not acquire any title to the said property. In the foot of the gift deed, validity of which was challenged, it was mentioned that the said two decimals of land appertained to sikim khata, P. W. 7 when cross-examined with reference to the deed stated that the word ‘sikim’ written therein was incorrect- Relying on the said statement the Court held that in absence of anything more, it cannot be said that P. W. 7 had no right to transfer the said land. On a reading of the aforesaid judgment it is not borne out whether P. W. 7 was an occupancy raiyat or a sikim tenant in respect of the aforesaid two decimals of land. If he was an occupancy raiyat, transfer could not have been made by oral sale as alleged, the reason being that Section 31 of the Orissa Tenancy Act, 1913 which applies also to the district of Puri (the land in dispute in the said case was situated in that district) envisages that every transfer of occupancy holding or a portion or share thereof whether by sale, exchange or gift shall be made by registered instrument. Though Section 54 of the Transfer of Property Act permits sale of immovable property of a value less than rupees one hundred by delivery of possession, but the Orissa Tenancy Act being a special statute, Section 31 of the said Act overrides Section 54 of the Transfer of Property Act which is a general statute. Had this provision of law been brought to the notice of the Court, evidence of P. W. 7 regarding oral sale of two decimals of land would not have been accepted. In any view of the matter, since the ultimate conclusion accepting the oral sale was based on appreciation of evidence, the principle decided therein is confined to the facts and circumstances of that case only.
11. Regard being had to the evidence in the present case, as discussed earlier and keeping in mind the judicial pronouncement of the Privy Council as also of this Court in Narayan Prasad (supra). I would hold that the sale deed Ext. B executed by defendant No. 2 in favour of defendant No. 3 being invalid one, transfer of that part of the suit property by defendant No. 3 to the plaintiff did not confer any title on her. Resultantly, the appeal fails and the same is dismissed. Since there is no appearance of the contesting defendants, the respondents herein, at the time of argument, there shall be no order as to costs.