JUDGMENT
Mahapatra, J.
1. Some of the defendants of first, second and ninth parties are appellants in this appeal. The plaintiffs and other defendants are the respondents. The original suit was for declaration of title, and recovery of possession with mesne profits in respect of 134 bighas of land in village Pursotimpur in tauzi No. 11840 in the district of Muzaffarpur. All the plaintiff did not claim interest in all the suit lands. Different items were mentioned in schedule 6 of the plaint to show which portions of the suit lands were claimed by which of the plaintiffs. It was alleged that the plaintiffs had been dispossessed by the defendants first party following a judgment passed in a case under Section 145, Criminal Procedure Code, on the 13th of July 1950 in which the present plaintiffs and defendants first to sixth parties were involved. 175 bighas of lands were the subject-matter of that proceeding and possession in that was found by that Court to be with the present defendants first, second and third parties. It will be convenient to indicate here the groups of the defendants in the present suit; Defendants first party-defendants 1 to 21a, defendants second party-defendants 22 to 29a, defendant third party-defendant No. 30, defendants fourth party-defendants 31 to 37, defendants fifth party-defendant No. 38, defendants sixth party-defendant No. 39, defendants seventh party-defendant No. 40, defendant eighth party-defendant No. 41 and defendants ninth party-defendants 42 and 43.
2. The case of the plaintiffs was that village Pursotimpur is situate on the bank of river Ganges and belonged to Syed Mohammad Hussain and others of Patna. It had an area of more than 417 bighas which was recorded as gairmazrua malik and constituted Diara lands, being subject to alluvion and diluvion. The milkiat interest of the village was sold for arrears of revenue to four persons, Ganesh Prasad, Ram Pratap Singh, Amir Singh and Baijnath Prasad Singh. They carved out separate pattis for their respective shares in Partition suit No. 11 of 1929 in the Court of the Subordinate Judge, 2nd Court, Muzaffarpur, and retained their possession accordingly. Amir Singh’s share came to be sold for arrears of revenue and purchased by Baijnath Prasad Singh defendant No. 40, who thus acquired 12 annas patti in the tauzi. By that time, about 32 bighas of land had become cultivable, the rest remaining under water or covered by sand.
In 1943 some more land became cultivable and then a dispute arose between Baijnath Prasad Singh and the ancestors of the present defendants first and second parties, leading to a proceeding under Section 145, Criminal Procedure Code, in respect of 223 bighas of land claimed in the patti of Baijnath Prasad Singh in lieu of his 12 annas share in the milkiat. That proceeding, however, was dropped on compromise on the 13th January 1947, when the present defendants second party admitted the title and possession of Baijnath Prasad Singh over the disputed land and the latter agreed to settle 36 bighas of land with them under registered deeds of lease. The defendants second party took the lease on the 5th of February 1947 for 28 bighas 18 kathas from Baijnath Prasad Singh and remained in possession of the same. On the same day, defendant third party took a similar lease for 7 bighas 2 kathas. Schedule 2 of the plaint describes those lands. Another 267 bighas of land was settled by Baijnath Prasad Singh with the plaintiffs on the 5th and 10th of February 1947 by registered documents and the description of those lands is given in schedule 3. Plaintiffs claimed that they came in possession of that.
The settlement taken in the name of plaintiff No. 1 was for the joint family consisting of himself and plaintiffs 1(a) to 1(e). The other plaintiffs took separate settlement of separate portions of lands as detailed in Schedule 6. The milkiat interest of Ganesh Prasad devolved on his son Ram Prasad who transferred his entire interest to plaintiff No. 1 by a deed of sale dated the 13th of March 1947, in the name of his brothers plaintiffs 1(a) and 1(b). Another cosharer Ram Pratap Singh also transferred his milkiat interest to the plaintiffs 1 to 1 (e) and defendant No. 12 Kalicharan Rai and defendant No. 42 Deonarain Rai, on the 2nd of April 1947. Kalicharan Rai and Deonarain Rai got a share of 8 gandas and odd each. The rest went to plaintiffs 1 to 1 (e). Thus the plaintiffs claimed that they were settlees and some of them proprietors in respect of 3 annas and odd share in mauza Pursotimpur.
3. Another proceeding under Section 145 Criminal Procedure Code was started in October 1947 in respect of 175 bighas of those lands. The details of those lands are given in Schedule 5 of the plaint. Defendant first party took a settlement of 5 bighas from Kalicharan Rai (defendant No. 12). Similarly plaintiff No. 13 took settlement of 5 bighas from Deonarain Rai. These lands are described in Schedule 4. That proceeding, however, ended against the plaintiffs on the 13th of July 1950 (Ext. 1), and following; that the plaintiffs were dispossessed out of the suit lands described in Schedule 6. A sum of Rs. 12,500/- being the income of the land under attachment in the proceeding under Section 145 was in deposit in the Court of the Magistrate and the plaintiffs claimed in the suit their right to withdraw that money. The plaintiffs also asked for recovery of possession and mesne profits of the suit lands.
4. The main defence of the contesting defendants was that they had taken a settlement of the suit lands from the 16 annas proprietor of village Pursotimpur, Mt. Bibi Fasihan of Patna, when the lands came out of the bed of the river, shortly after the survey settlement (that took place in 1896). The subsequent purchasers of the Mahal in revenue sale attempted to dispossess the defendants or their ancestors on the ground “that the lands were their bakasht and gairmazrua lands but they failed. The defendants claimed that they had been all along in possession of their settled lands, schedules of which were given in the different written statements. The title and possession of Baijnath Prasad Singh was strongly denied. So also the possession of Ram Pratap Singh and Ami” Singh and their transferees was challenged.
In short, the plaintiffs were said not to have acquired either any title or possession from the alleged settlor Baijnath Prasad Singh or their other vendors. Baijnath was arrayed as defendant No. 40 (defendant seventh party) who supported the plaintiffs’ case in his evidence in Court as P. W. 6. The deeds of settlement executed by him in favour of the plaintiffs on the 5th and 10th of February 1947 in respect of the lands described in Schedule 3 measuring 267 bighas, including the suit lands (Schedule 6) were attacked as fraudulent and invalid. Defendants claimed that they had already acquired occupancy right over those lands. The compromise effected in the first proceeding under Section 145, Criminal Procedure Code, by which Baijnath Prasad Singh retained his title and possession over the properties in question was also challenged in the written statement as an act of fraud on his part.
5. On these pleadings, parties went to trial. The trial Court held that the purchase of milkiat interest and settlement of suit lands acquired by the plaintiffs were valid and they came into possession till they were dispossessed on the 13th of July 1950. The defence story of taking settlement from Bibi Fasihan and their possession was disbelieved. Accordingly the suit was decreed for recovery of possession, mesne profits and the plaintiffs were allowed to withdraw the money that was in deposit in court under Section 145, Criminal Procedure Code. Against that some of the defendants as stated earlier have come in appeal.
6. When this appeal opened for hearing, the respondents raised an objection about the incompetency of the appeal on account of abatement of the appeal against the deceased respondent No. 3 and his legal representatives. He was plaintiff No. 1(b) in the suit. There was no substitution of his legal representatives on his death in appeal and under order No. 101 of this Court, the appeal stood abated in that respect. The respondents contend that there having been a joint decree in favour of the plaintiffs and that decree having become final as far as plaintiff No. 1(b) and his legal representatives are concerned, that decree cannot be reversed or modified in this appeal, as otherwise there would be two conflicting decrees or decisions. The suit was for declaration of plaintiffs’ title and for recovery of possession with mesne profits in respect of 134 bighas of land in village Pursotimpur in the district of Muzaffarpur. The lands were described in schedule 6 of the plaint showing different specific portions of land as claimed by different plaintiffs. Thus the claim and the subject-matter in the suit were not joint and indivisible. It was in effect several plaintiffs joining together to claim specific portions of land for themselves severally.
Plaintiffs 1 to 1 (e) were one of group of persons who jointly claimed two specific blocks of land in Items 1 and 10 of Schedule 6 of the plaint. A decree was given by the trial Court in their favour in respect of that land, holding that their settlor and vendor had title and possession, which were conveyed to them and that they have been in possession of the same land ever since their acquisition. This decree has become final as far as deceased plaintiff 1(b) and his legal representatives are concerned. If the appeal is continued and decided otherwise against the other plaintiffs of the group of plaintiffs 1 to 1(e), there will, undoubtedly, be a conflict of decision on the issue of title and possession of those plaintiffs and their predecessor-in-interest. In regard to that group of plaintiffs there will be also a conflict of decrees. In that view, the appeal has become in competent as against the group of plaintiffs 1 to 1(e) in respect of items 1 and 10 of schedule 6 of the plaint. But, since the other plaintiff-respondents claimed different lands specifically, the appeal against them will not stand affected by this abatement.
The appellants’ Counsel conceded that he could not challenge the finding that plaintiffs’ alleged settlor Baijnath Prasad Singh had title and possession over the suit properties till and at the time of the alleged settlements in February, 1947. That finding is the main and important part of this case and had become final, for abatement of the appeal against the deceased plaintiff No. 1(b). The appeal against other plaintiffs cannot be allowed to dispute that finding as that would lead to conflicting decisions in the same suit. So also that part of the decree by which all the plaintiffs have been allowed jointly to withdraw the money in deposit in the Criminal Court, cannot be challenged against the plaintiffs [other than plaintiffs 1 to 1(e)] against whom the appeal can proceed in other respects. Out, of the total lands of 134 bighas involved in the suit and appeal, the lands under items 1 and 10 of Schedule 6 of the plaint, that is, 45 plus 29 bighas, total 74 bighas will have to be excluded from consideration in this appeal and the appeal will stand dismissed without costs against respondents 1 to 5 who were plaintiffs 1 to 1(e).
7. The appellants had filed an application long ago stating that plaintiff No. 8 had died during the suit and before the decree and was not substituted by his legal representatives. The suit therefore abated so far as the deceased plaintiff No. 8 was concerned. The decree passed in his favour is unsustainable and is set aside. In the suit, plaintiffs 7 and 8 claimed on the basis of registered patta and kabuliyat dated the 12th of February, 1947 [Exts. 1(1) and 8(1)] for 20 bighas of land of village Pursotimpur, 8 bighas out of that, as described in item No. 7 of Schedule 6 of the plaint. Since there was a joint claim by plaintiffs 7 and 8 in respect of a specific portion of land, the suit of the plaintiff No. 7 was no longer maintainable after the death of the plaintiff No. 8, in absence of his legal representatives as parties. He should, in the circumstances of the case, be permitted to withdraw from the suit with permission to institute a fresh suit, if advised, for Hem No. 7 of Schedule 6 of the plaint. Other plaintiffs have no objection to this. The decree in respect of this item of the property will, stand vacated.
8. It appears that in the application made by the appellants they had asked for substitution of the two sons of deceased plaintiff No. 8 in the appeal. They had included their names in the memorandum of appeal also at the time of filing. This application was ordered to be heard at the time of the hearing of the appeal. Learned Counsel for the appellants does not want to press the prayer for substitution. There could be no such substitution without setting aside the abatement of the suit which had occurred in the trial court. There was no application for that purpose either in the court below or here. There is, therefore, no escape from holding that when plaintiff No. 8 died, the suit abated as far as he was concerned.
9. In the memorandum of appeal respondents 13 and 14 were included as the heirs of deceased plaintiff No. 8. Office objected to this The appellants filed the application for the substitution of respondents 13 and 14 as heirs of deceased plaintiff No. 8. Though that application was ordered to be heard at the time of the hearing of the appeal, at one stage the Registrar allowed substitution of the legal representatives of respondent No. 14 when he died and an application in that respect was made. Since respondents 13 and 14 had not been formally brought on record by a proper order for their substitution in place of deceased plaintiff No. 8, the order of the Registrar could not be of any effect. Those respondents, namely, respondents 13 and 14 and the widow and sons of deceased respondent No. 14, as noted in the memorandum of appeal, shall be expunged.
10. The appellants also pointed out that defendant No. 24 who belonged to defendants second party died during the pendency of the suit in the trial court and was not substituted by his legal representatives. In paragraph 20 of the plaint plaintiffs alleged that they had been dispossessed by defendants first party only. In the written statement defendant No. 24 had claimed a property which was not involved in the suit. The suit was thus not affected by the death of defendant No. 24. The appeal is equally unaffected.
11. Appellant No. 12 who was defendant No. 11 or 12 in the suit (both the numbers indicated the same person) and respondent No. 19, who was plaintiff No. 13 have entered into a com-promise and filed a petition here with regard to the same. Defendant No. 42 Deonarain Rai and defendant No. 11 or 12 Kalicharan Rai Jointly acquired 17 gandas and odd share in the milkiat interest from Ram Pratap Singh by a deed of sale [Ext. 7(b)] on the 2nd of April 1947. Both of them executed a lease (Ext. 1) in favour of Bhikan plaintiff No. 13 (respondent No. 19) for 15 bighas of that land on the 4th of October 1947. Plaintiff No. 13 alleged that out of that land he had been dispossessed in respect of 5 bighas by the defendants first party and claimed recovery of the same which was decreed. In the present appeal Kalicharan Rai (appellant No. 12) attacked that decree but in the meanwhile he has compromised the matter with respondent No. 19 Bhikan Rai (defendant No. 13) to the effect that the decree passed in respect of the five bighas mentioned in item No. 11 of Schedule 6 of the plaint shall remain intact. Other appellants have no concern with that land and have no objection to the recording of the compromise. Accordingly, the compromise is directed to be recorded and the appeal in respect of item No. 11 of Schedule 6 of the plaint will stand dismissed but without any costs.
12. Coming to the merits of this appeal, as it subsists against plaintiffs other than plaintiffs 1 to 1(e), 7, 8 and 13, it has to be made clear that the appellants’ challenge to the decree will be examined on the footing that Baijnath Prasad Singh had title and was in possession of the suit lands in February 1947 when he settled the lands with the plaintiffs. The main ground of attack by the appellants was that the deeds of settlement by which the plaintiffs claimed title were invalid inasmuch as they were registered at Hajipur al-though no property conveyed under those deeds was situate within the jurisdiction of that registry office. Tiny bits of lands in villages Warispur and Dayalpur were included in those documents without any intention of settling those lands with the plaintiffs but with the sole purpose of getting those documents registered at Hajipur within whose area those two villages lay. This contention amounts to saying that Baijnath Prasad Singh and the plaintiffs committed fraud on the law of registration and purported to overcome the law provided under Section 28 of the Indian Registration Act.
13. Rule 2 of Order 6 of the Code of Civil Procedure enjoins upon every party to state in his pleading, in a concise form all the material facts on which he relies for his claim and defence. In Rule 4, it is provided that in all cases in which the party relies on any fraud, he shall state in his pleading the particulars of that. Fraud is an objective fact and it is necessary to state facts and materials constituting the same. The Judicial Committee held in the case of Ganga v. Tiluckram, ILR 15 Cal 533 (PC) that a plaint containing general allegations of fraud without specific instance ought to be rejected as it does not disclose a cause of action.
In the case of Abdul Hossein v. Turner, ILR 11 Bom 620 (PC) they also held that where one kind of fraud is charged, another kind of fraud cannot be substituted for it. The importance of stating the material, facts in the pleading in connection with fraud that one may plead cannot be gainsaid, as the other party will be required to meet such allegation. In the present case it was necessary for the contesting defendants to say in the written statement that small parcels of land in the villages of Warispur and Dayalpur had been fraudulently included in the deeds of settlement without any intention of transferring title in the same to the plaintiffs, with a view to misleading the sub-registrar at Hajipur to assume jurisdiction to register those documents. They did not make any such statement in any of the written statements. The set of issues that were framed on the pleadings by the Court on the 17th of December 1952 did not have any reference to the deeds of settlement being hit by Section 28 of the Indian Registration Act. It is, however, seen that five years thereafter, on the 28th of March, 1957, when the evidence commenced in the trial, that was added to issue No. 6 on recasting. Strictly speaking, this was wrong. Issues arise only on the Pleadings and an issue involving the allegation of a fraud, be it of what nature, should not be allowed to be raised unless there were materials for that in the pleadings. In the recast issue No. 6 the following was included.
“Are these documents hit by Section 28 of the Indian Registration Act?”
This, in my view, is also quite inadequate to appraise the plaintiffs of the real import of fraud that the defendants sought to raise against them, and Section 28 of the Indian Registration Act provides that a document can be presented for registration in a particular office of registration within the jurisdiction of which any of the property relating to the document is situate. The defendants could show invalidity of registration of the deeds of settlement by proving that the properties of Warispur and Dayalpur, mentioned in those documents, were not at all in existence or even though they existed Baijnath Prasad Singh knew that he had no title to those properties, or that both the parties knowing that those properties were not intended to be transferred, included them in the documents to get over the difficulties provided under Section 28. All these three things could be pleaded in relation to that section, but mere reference to that section in issue No. 6 could not have implied which of three pleas the defendants wanted to contend against the plaintiffs.
Even before us, learned Counsel for the appellants attempted to bring his challenge within the range of each of the three pleas. There cannot be any doubt that the plaintiffs were prejudiced toy such a vague and indefinite issue being framed without any particulars in the pleading relating to that. The documents, Exts. F, F(1),G and G (1), in which utmost reliance can be placed by the defendants in this connection were filed after the closure of the evidence on the plaintiff’s side. This again was very unsatisfactory state of defence and the Court wrongly permitted such a course. However, I notice that in the cross-examination of P. W’.s 6, 13, 14, 19 and 27 the defendants put some questions relating to the lands in villages Warispur and Dayalpur. I am inclined to overrule this defence but since it formed a part of an issue and the trial court admitted some evidence on that, I propose to examine them.
14. First, the question is, if the lands of Warispur and Dayalpur settled with the plaintiffs by Baijnath Prasad Singh (P. W. 6) were at all in existence. If they were not, then the likely presumption would be that the settlor could have no intention to convery any title in any such nonexistent lands to the settlees. The deeds of settlement [Exts. 1(b) and 1(c)] in favour of plaintiffs 9 and 10 included 10 dhurs out of plot No. 151 of khata No. 8 in village Warispur pargana Bisra tauzi No. 22325. The Barwarda in respect of 16 annas share in mauza Warispur Touzi No. 2541 was proved in evidence and marked as Ext. 22. That includes plot No. 151. From the seal on its certified copy it appears that the copy was obtained in 1921. So the Barwarda must have been prepared before that Tauzi No. 2541 is different from tauzi No. 22325 mentioned in the deeds of settlement which were executed in February 1947.
It is not unlikely that a parent tauzi is some-times divided into different tauzis bearing different numbers in a partition. Allotment of tauzi numbers is a matter of apportionment and collection of land revenue and for the record of Register D in the Collectorate of a district. From the Barwarda (Ext. 22), it clearly appears that there were four cosharers in mauza Warispur bearing the parent tauzi No. 2541 and the lands in the different pattis of those cosharers were separately mentioned. A Barwarda is a rough estimate of the area of lands in a mauza. Plot No. 151 lay in the allotment of Brij Bihari Singh. By Ext. 1 (u), a perpetual mukarrari patta dated the 2nd. July, 1921, Baijnath Prasad Singh obtained a settlement of Brij Behari’s interest in Warispur Mahal Tauzi No. 22325. Thus there cannot be any doubt that plot No. 151 in Warispur, portions of which were settled with plaintiffs 9 and 10 under Exts. 1(b) and 1(c), was in existence. Baijnath Prasad Singh also was the tenant for that plot as Brij Bihari Singh, the proprietor, had given a permanent lease of all his interest in Warispur Mahal bearing tauzi Nos. 22325 and 22326 by Ext. 1(u).
Learned Counsel for the appellants contended, with reference to Ext. F (1) (khesra), that plot No. 151 was not under khata No. 8 though such a khata was mentioned in the two deeds of settlement. What is important is the survey plot number to identify a particular land. There cannot be two survey plots bearing the same number in a village. Even if the khata number is not mentioned or wrongly mentioned, that will make little difference when a proper identification of the land is possible with reference to the appropriate survey plot number. Ext. G(1) is a certified copy of the khatian for village Warispur Mahal Raghunathpur tauzi No. 2541, That, however, does not bear plot No. 151 but that is a khatian in respect of tenanted lands and not of private lands of the proprietor. The khesra [Ext. F(1)] as well as the Barwarda (Ext. 22) mentioned plot No. 151 in Warispur as the private land of the landlord If the khatian in respect of proprietor’s private lands in that village was produced by the defendants, that would have shown, if or not survey plot No. 151 was included there. They have not done so and cannot benefit from a wrong khatian [Ext. G(1)]. The oral evidence of Baijnath Prasad Singh (P. W. 6) is assertive that he had settled portions of his land in this village with the plaintiffs and the evidence of the settlees is also to the same effect. The defendants’ contention that either plot No. 151 was not in existence or was not owned by Baijnath Prasad Singh or was not intended to be settled with the plaintiffs by him cannot succeed.
15. Similarly, in the deeds of settlement, 1(f) in favour of plaintiff No. 4, Ext. 1(g) to plaintiffs 5 and 6, Ext. 1(h) to plaintiffs 2 and 3, Exts 1(i) to plaintiffs 7 and 8 and 1 (j) to plaintiff No. 13, portions of plot No. 107 of khata No. 1 in village Uayaipur under tauzi No. 25878 lying in the patti of Baijnath Prasad Singh were mentioned, Ext. F is the khesra for Dayalpur Ratan bearing tauzi No. 3576. It includes plot No. 107 bearing an area of 14 dhurs but the name of a tenant has been shown in column 4. This khatian was of 1896 when the cadastral survey settlement was held. There is no evidence what happened to this land since then. If the defendants would have specifically pleaded about the absence of existence of this land or its ownership with Baijnath Prasad Singh at the time when he settled the land with the plaintiffs, it might have been possible for the plaintiffs to adequately meet that challenge.
A reference to the record of rights of the year 1896 cannot decide the real position in 1947. Ext. G is a khatian produced by the defendants which does not contain plot No. 107 in khata No. 1. The survey map would have been better evidence to show whether or not such a plot exists in village Dayalpur. That has not been produced by either party. The oral evidence of the settlor and the settlees is there to assert that two dhurs of this plot No. 107 was settled with each of the five settlees of plaintiffs mentioned above by the documents granted to them respectively. I am unable to hold that either plot No. 107 did not exist or it was not intended to be settled with the plaintiffs.
16. Learned Counsel’s further argument was that the plaintiff-settlees were residents of villages distant from Warispur or Dayalpur and it would have been inconvenient for any of them to possess tiny parcels of land at distant places. He referred to the oral evidence (P. W. 14) to show that those lands in Dayalpur were still lying parti (uncultivated). That may be so. That, by itself would not prove absence of intention on the part of the settlor to transfer some interest in the land to the settlees. Intention at the time of settlement is relevant. Subsequent user by the settlees will not be a decisive factor. The bulk of the settled lands was no doubt situated in village Pursotimpur which was at a distance from Warispur or Dayalpur; but that again is of little importance, if the parties decided to include in the settlement some other land with a view to getting facilities of registration at Hajipur. If the intention of the parties was that that small portion of land would also be settled, there would be nothing wrong in including such lands for the purpose of convenience in registering the documents.
Reference may be made to the case of Damodar Prasad v. Masoodan Singh, AIR 1928 Pat 89 where one dhur of land belonging to the lessor situate at a place different from the place where the bulk of the lease property lay was included in the document with a view to get registration was held to be valid and not an act of fraud on the laws of registration. In the case of Mt. Jasoda Kuar v. Janak Missir, AIR 1925 Pat 787 the transferor of properties situated in one district included in the deed of sale some other small property which he himself had purchased and which was in another district with a view to have the registration of the deed of transfer in the latter district. His own vendor’s title in respect of the latter property appeared later to be defective, yet, the Court held that the inclusion of such property in the deed of sale executed by him for the convenience of registration was not invalid (sic).
This Court also held, in the case of Ramchandraji Maharaj v. Lalji Singh, AIR 1950. Pat 305 that mere smallness of land or absence of proper boundaries in the deed of transfer would not establish fraud on registration. In the case of Mt. Rukhmabai v. Krishnarao, AIR 1952 Nag 145 a house at Nagpur was included in a deed of mortgage. It was contended that the transferor had no title to that house and the transferee had no knowledge of that inclusion. The learned Judges held that absence of title of the transferor or absence of knowledge of the transferee will not amount to fraud on registration though that may, in some cases amount to fraud on the transferee or may not convey any title to the transferee at all. The appellant in that case did not allege in his pleading that the house at Nagpur was included in the mortgage deed without any intention on the part of both parties to make it a security for the mortgage debt. The written statement of the present case are very much similar to that.
17. The act of the parties has to be considered with reference to the time when a document is executed and presented for registration. If the parties themselves have not intended to perpetrate a fraud on the law of registration, the document will not be invalid, if any portion of the property relating to that document is situate within the jurisdiction of the registration office where it is presented. In the case of Durga Prasad Sahu v. Tameshar Prasad, AIR 1924 All 897 the Allahabad High Court very appropriately pointed out that if a property is entered into a deed simply for the sake of registration, the document can be presented to the Sub-Registrar Within whose territorial jurisdiction that property is situate. If the parties find that by selling a small bit of property they would have the convenience of avoiding a long and expensive journey, the inclusion of such property should not be treated as an act done only to commit fraud on the law of registration.
18. Learned Counsel for the appellants very much relied on two decisions of the Judicial Committee, Collector of Gorakhpur v. Ram Sundar Mal, AIR 1934 PC 157 and Venkatrama Rao v. Sobhanadri Appa Rao, AIR 1936 PC 91. In the former case, the validity of presentation of a sale deed of the 30th October 1922 for registration came for consideration. It was registered with the Sub-Registrar of Gorakhpur and an undivided interest (one-third share) in a small sitting platform, 131/2 ft. round with a tiled thatch on it, situate in the middle of a garden at Gorakhpur was included in that sale deed to attract the jurisdiction of the Gorakhpur Sub Registrar. The other properties under that document relate to four villages in Majhauli estate. No part of the garden was included in the sale deed; nor the purchaser was given any right of way or other access to that sitting platform. From the landlocked situation of that sitting platform it was found to be incapable of enjoyment by the purchaser. The other properties under that sale deed yielded an income of more than Rs. 10,000/- a year and the consideration in the sale-deed was Rs. 24,000/-. The Court found that the undivided interest in that sitting platform was not contemplated as really forming a part of the consideration. The vendor was also found to have no right or title to that property.
Their Lordships of the Judicial Committee, on those facts and circumstances, took the view that this inaccessible, insignificant and almost valueless property was included in the document in order that some colour for the registration of the document at Gorakhpur might appear upon its face. The evidence of the scribe of the document in that case was also significant. He said that he had asked the executant why that item of property should be included in the deed as that would be of no use whatever. The answer given to him was that he knew that such inclusion by itself may be a ground of invalid registration to be used in future if necessary. The Judicial Committee on a consideration of the circumstances of the case and the evidence thought that one of the two inferences alone was possible either that it was never intended by either party that the sitting platform should for any purpose other than that of registration be subject of sale at all, or that the vendor only included it because he knew that it never could become an effective subject of enjoyment or occupation by the purchasers. They further observed that such an inclusion of property would be fictitious if the deed does not relate to a specified property for any effective purpose of enjoyment or use. What is clear from this decision is this:
When the intention of the vendor was not to convey any title in a property but it is included in the deed of transfer to give the colour of jurisdiction for registration of the document, that will be taken as fraud on the law of registration; secondly such an intention can be gathered from physical inaccessibility for the transferee to the land, or from known absence of title to that property of the transferor.
In the present case though the lands of Warispur and Dayalpur that were included in the different deeds of settlement were either 2 or 10 dhurs and at a place distant from the residence of the settlees or from the village where the bulk of the settled land was situate, yet there was no physical hindrance for the settlees to possess those lands. It has not also been proved in this case that the settlor or the settlees had no intention to make those lands as part of the settlement. Whether, in fact, the settlees actually made use of those small lands will be a different matter.
19. In the other case AIR 1936 PC 91 one yard of land in a village in Godavari district was included in a deed of sale by inserting an additional sheet to the original sale deed that was executed previously in respect of the properties in another district. The document was presented for registration at Godavari one month after the execution. On the facts of that case, it was found that there was no intention on the part of the parties to that document that the latter one yard property should pass under that deed of sale and it was only added with the sole view to obtain registration in the latter district. It was held that the criterion by which the question of validity of presentation of a document for registration must be decided is whether upon the facts established by evidence, the parties intend ed any property to pass under the deed of transfer. The motive may be immaterial if the requirements of law are complied with but of that requirement, the intention to transfer title is critical. The defendants of the instant case failed to discharge the onus to prove the absence of such an intention of the parties.
20. In the ease of Harendra Lal Roy Chowdhury v. Hari Dasi Debi, 41 Ind App 110 : (AIR 1914 PC 67) the registered instrument was held to be invalid for absence of presentation in a proper office of registration as the property included therein, by which the document could be registered at the office where it was so done, did not exist in the particular street in Calcutta belonging to the mortgagor, as mentioned in the deed. So also in the case of Biswanath Prashad v. Chandra Narayan, 48 Ind App 127 : (AIR 1921 PC 8) one cauri share in a village in Muzaffarpur district to which the mortgagor’s title was imperfect had been included in the mortgage deed to get the document registered at Muzaffarpur. The mortgage security consisted of properties situate elsewhere. From the imperfect title and the insignificance of the property in the village in Muzaffarpur district the absence of intention of the parties to make that property a part of mortgage security was inferred and the document held invalid for lack of proper registration.
Another case on which the appellants relied was Ramnandan Prasad Narayan Singh v. Chandradip Narain Singh, AIR 1940 Pat 504. There for payment of fees to a Counsel in Patna a litigant had executed a deed of mortgage in respect of properties which lay outside Patna but included 5 kathas of land in a village in the Patna district and the deed was registered in Patna. The mortgagor in evidence denied that he intended to transfer the land in Patna district to the mortgagree as a security. No boundaries whatsoever nor any description of that 5 kathas of land was furnished in the document. Evidence was offered on the opposite side to say that that land had been included in the mortgage security with a view to get that exchanged with other lands belonging to the person who negotiated the mortgage loan in case the mortgagee takes possession of the mortgage security in future. This story was disbelieved by the court.
Learned Counsel stressed upon the fact that in the present case the boundaries given of the small portions of land in Warispur and Dayalpur in the different documents were not the actual boundaries of those small portions but they were in respect of the whole plot of which either 2 or 10 dhurs were included in a document. It is in evidence of P. W. 6 and also some of the plaintiffs that the settlement of the land was taken by the plaintiffs together though by separate documents. The lands in village Pursotimpur are diara. The plaintiffs knew which land they were taking in settlement and it was for them to make arrangement either for joint or separate cultivation. In that background it was not important for them or for the settlor to describe the boundaries in respect of each of the small portions of the two whole plots in Warispur and Dayalpur. For the Pursotimpur lands more exact boundaries were given in the different deeds of settlement. Similar exactitude was not adopted for the lands of the either two villages. This aspect was greatly stressed upon by learned Counsel and pressed that that would lead to the conclusion that really the parties did not intend to include these lands in the settlement but only for obtaining the registration at Hajipur, Such small portions of land in those two villages were included in the deeds of settlement that were executed by Baijnath Prasad Singh in favour of the defendants second party when the first proceedings under Section 145, Criminal Procedure Code, were compromised. Some of them filed written statements in the present case along with some of the appellants. Those documents were accepted by the parties.
In the Calcutta case, ILR 15 Cal 533 referred to above, no boundaries whatsoever were given of the 5 kathas of land in Patna district in the mortgage deed. From the description given in the present deeds of settlement, the identity of land and the share of the settlees are discernible. If they so wished, they could get a division of those two plots among themselves or they could Jointly possess the same. In my view, the inference drawn from the facts in the Calcutta case cannot apply here. The facts and circumstances of each case are to be taken into account for concluding a legitimate inference about the presence or absence of intention of the parties for transfer of title in any particular land at the time of execution of the deed of transfer.
21. Baijnath Prasad Singh (P. W. 6) said in evidence that he had settled lands in his possession (in village Pursotimpur) with the plaintiffs along with other lands in Warispur and Dayalpur. Plaintiffs came in possession of the lands that were settled with them and he put them in possession of those lands. He had settled bakasht lands of villages Warispur and Dayalpur under the pattas. He, however, added that he did not remember what papers were with him to show that the lands of villages Warispur and Dayalpur that he settled were his zirat and bakasht lands. No separate rent and salami were settled for those lands but rent had been realised for those lands. He denied that he had included the lands in the two villages in order to get the deeds registered at Hajipur. At another place he said that rent was realised according to the terms of the pattas. P. W. 19 was plaintiff No. 1. He said that the plaintiffs had taken settlement of some lands in village Warispur and Raghopur (Warispur is included in the Raghopur Mahal). He asserted that the plaintiffs were in possession of the lands in villages Warispur and Dayalpur. In cross-examination he repeated that he had taken settlement of 10 dhurs of land of village Warispur and 11/2 kathas in Dayalpur and could give the details of the lands taken in settlement by other plaintiffs.
In all plaintiffs took settlement of two kathas of land in village Warispur and 21/2 or 3 kathas in village Dayalpur. The plaintiffs took settlement from the same survey plot number in each of both the villages. They looked into the khatian in respect of those two plots which were recorded in the name of Baijnath Prasad Singh as his zirat land. He did not look to any paper other than khatian and the survey map of the village. Those lands were settled at the rate of Rs. 50/- per katha. The lands in village Pursotimpur were settled on payment of Rs. 50/- per bigha as salami.
He stoutly denied the suggestion that the lands in Warispur and Dayalpur were included in the deeds only in order to get them registered at Hajipur. P.W. 13, an inhabitant of village Warispur who had attested the deeds of settlement, spoke in evidence that the persons who had taken settlement of lands in Warispur were in possession, P.W. 14, a man of Dayalpur, said in cross-examination that Baijnath Prasad Singh had 4 or 5 bighas of land in that village of which he settled 21 kathas of land in all with the plaintiffs. Two dhurs of land were settled with Guru Prasad and 5 dhurs with Hardwar Dubey. He gave the boundaries of those lands though he was unable to state the plot number. He admitted that he could not give the boundaries of all the lands separately settled with the plaintiffs. The plaintiffs” village was at a distance of 7 or 8, miles from village Dayalpur. P.W. 27, who was plaintiff No. 2 said that he had taken 2 dhurs of land from Baijnath Prasad Singh in village Dayalpur. He had been granted rent receipt for that but he had not filed the same in the case. He gave the boundaries of his 2 dhurs in cross-examination and denied that the land was non- existent or that it had been included in the deed in order to play fraud on the Registration Department. On this evidence, it cannot be said that Baijnath Prasad Singh or the plaintiff did not intend to include the lands in Warispur and Dayalpur in the settlement. Rights of tenancy accrued to the settlees in those lands as soon as the deed of lease was executed and registered.
May be that, for some reason or other, the parties did not want to register the documents at the registration office under which village Pursotimpur was situate and they wanted to have the registration at Hajipur, That place
was certainly more convenient to the settlor. If
to have that facility of registration at that office
they decided to include in their settlement portions of lands situate in Warispur and Dayalpur,
there was nothing wrong about it and that would
not amount to overstepping the law. If really
fraud was intended to be practised in respect of
registration that could have been done easily by
including small bits of land in one village either
Warispur or Dayalpur. But instead of that, why
should lands of one village be settled with some
of the plaintiffs while the lands in the other village
were settled with the other plaintiffs? As long
as the law permits registration of a document at
a place where any portion of the land
covered by any deed of transfer is situate,
parties can take advantage of that and get the
document registered at a place where not the
bulk of the land under transfer but only a small
portion which was also intended to be transferred is situate. In that view, I do not find any
substance in the contention of the appellants with
reference to Section 28 of the Indian Registration
Act.
22. Plaintiff No. 12, who is respondent No. 18, has not proved any deed of settlement in his favour but two rent receipts have been exhibited [Exts. 2 (n) and 2 (o) ] for 1355 and 1356. He did not examine himself. Item No. 9 Schedule 6 for 6 bighas was claimed by him. He had taken settlement of 17 bighas as described in Schedule 3 of the plaint. He was a party in the proceeding under Section 145, Criminal Procedure Code. Payment and acceptance of rent brings into existence the relationship of landlord and tenant in an agricultural holding. In the present case that position was admitted by the settlor (P. W. 6) (See Bastacolla Colliery Co. Ltd. v. Bandhu Beldar, AIR 1960 Pat 344 (FB) and Ram Kumar Das v. Jagdish Chandra Deo, AIR 1952 SC 23. Plaintiff No. 12’s title to item No. 9 of Schedule 6 cannot therefore, be disputed by the defendants, for the absence of proof of his deed of settlement.
23. Learned Counsel made laborious efforts to urge, on a comparison of the evidence of the different plaintiffs and their witnesses that the settlee could not have come into actual possession of the diara lands in Pursotimpur. The settled lands in Dayalpur according to P. W. 14 had not been brought under cultivation. He pointed out that the settlement was made in the month of February 1947. The deeds show that it was to take effect from Kartik 1355 corresponding to November 1947. A police report about the apprehension of a breach of the peace, on account of the dispute concerning the settled land, was made on the 9th of October 1947 and on the 11th October 1947 proceedings under Section 144, Criminal Procedure Code, were initiated, which were converted into a proceeding under Section 145 on the 17th of November 1947. Attachment of these lands were simultaneously made. Thus, it was contended, there was little time for the plaintiffs to come into actual possession.
Learned Counsel also referred to the evidence of P.W. 2 who said that the plaintiffs came into possession in Jeth for only three months before they were dispossessed (meaning dispossession by attachment by Court), P. W. 8 stated that the plaintiffs came into possession in Baisakh or Jeth. Criminal case was started three or four months after the deed of sale and settlement. Similarly, P.W. 11 stated that the plaintiffs came first in possession in Baisakh 1939 or 1940 and china crop was grown in Jeth and harvested in Sawan. Plaintiff No. 1 as P.W. 19 spoke in evidence that he had taken settlement of 223 bighas from the Subdivisional Officer, Hajipur, in 1946 (when the first proceedings under Section 145 were pending) for one year till Jeth (May 1947). No crop was standing when he gave up possession. P. W. 27 (plaintiff No. 2) deposed that before the pattas were taken, they were not in possession of the lands and he had no concern with the lands before settlement. Plaintiff No. 13 as P. W. 16 gave evidence that when they remained in possession for 21/2 or 3 months they did not harvest any crop after the execution of the patta (his patta was in October 1947). Another plaintiff who figured as P. W. 21 spoke more or less on the came line.
Learned Counsel contended that this evidence, analysed with the sequence of prohibitory proceedings under Sections 144 and 145, Criminal Procedure Code, does not make out that the plaintiffs actually took cultivating possession of the lands which they claimed. He also attacked the rent receipts as spurious saying that they were brought into existence in collusion with Baijnath Prasad Singh. Much importance need not be attached either to actual possession of the settlees or the rent receipts produced on their behalf to proof of their possession. If the settlement is believed as it is proved by the registered instruments, the title of the plaintiffs cannot be disputed and the suit being instituted in January 1952, within five years of the settlement will succeed to recover possession from the contesting defendants whose possession had been declared by the Court under Section 145, Criminal Procedure Code.
In that view, it is not necessary to go into a detailed examination of the evidence on possession. Once plaintiffs’ title and right to possession are found on the basis of the deeds of settlement, the possession through attachment by the Court under Section 145, Criminal Procedure Code, will also enure to their benefit. There can be no doubt that the plaintiffs certainly attempted to come on the land round about October 1947. The police found that there was an apprehension of a breach of the peace on account of the dispute for possession (sic) over this land between the plaintiffs and the defendants and the proceedings under Section 144, Criminal Procedure Code, were initiated. Soon thereafter the land came under attachment by Court.
24. The story of the defendants that they had taken settlement from Bibi Fasina long ago and were in possession from the time of their ancestors has been discarded by the trial Court on a detailed consideration of the evidence in that respect. That finding has not been, as it could not be, challenged in this appeal. They have thus no title to be on the land except that they held possession under orders of the Court under Section 145, Criminal Procedure Code.
25. For the reasons given above, the appeal is dismissed with costs payable to respondents 7 to 11 and 15 to 18 who were plaintiffs 2 to 6 and 9 to 12, respectively.
A.B.N. Sinha, J.
26. I agree.
