JUDGMENT
S.D. Jha, J.
1. This second appeal by the plaintiffs who succeeded before the trial Court, but lost before the first appellate Court, was, by order dated 2-3-79, as amended by order dated 29-6-92, was admitted for final hearing on the substantial questions of law set out below:–
(1) Whether the lower appellate Court committed an error in law in dismissing the suit for declaration of plaintiffs’ title over the suit land on the ground that the document Ex.P/1 was not registered ?
(2) Whether in the facts and circumstances of the case, the lower Court erred in law in dismissing the suit of the plaintiffs?
2. The plaintiffs are sons of Badruddin who died some time in the year 1924. They claim that their father Badruddin, on 28-2-20 vide sale-deed Ee. P/1 purchased from one Anver Sheikh Mohammad an open land for a consideration of Rs. 25/- as desribed in para 1 of the plaintiff, situated at Khargone. The sale-deed is in ‘URDU’ and its ‘HINDI’ translation is Ex. O/1A. After the death of their father, they become the owners of the land in question. The plaintiffs applied to Nagar Palika Khargone for permission to construct a building on the land, but Nagar Palika declined to grant permission denying that plaintiffs Title over the land as also urging that the title vested in Nagar Palika. The plaintiffs therefore, after serving requisite notice, filed a suit for declaration of their title over the land as also for declaration that they are entitled to construct building on the same.
3. Nagar Paika resisted the suit denying that the plaintiffs father had purchased the land. The identity of the land was also denied. The plaintiffs right of permission to construct building over the land was also denied. It urged for dismissal of the suit.
4. The trial Court, by judgment and decree dated 3-3-76, found in favour of the plaintiffs and decreed the claim with costs.
5. In appeal by defendant-Nagar-Palika, the first appellate Court, by judgment and decree dated 24-8-78 found in favour of defendant-Nagar Palika and allowed the appeal holding that the plaintiffs had failed to prove that their father had purchased the land or that they are owners of the same. Document of sale Ex. P/1 could not be taken into consideration for the collateral purposes of proving delivery of possession to the plaintiffs father. It allowed the appeal with costs and dismissed the suit, hence the present appeal.
6. At the hearing of the appeal, substantial questions of law formulated vide order dt. 12-3-79 were recast and substituted by question No. 1 reproduced above. The two learned counsel — Shri D. M. Shah for the appellants and shri Chafekar for the respondent agreed with the question recast.
7. It may also be stated that Shri Shah representing the appellants after arguments had been heard and at the stage of reply made an oral request that on mere question as to applicability of Transfer of Property Act 1882 (for short ‘the Act”) at the relevant time to the area in question may be formulated. The request was rejected because, besides there being no such pleadings relevant to the question, the oral request made 13 years after admission of appeal, was considered belated.
8. Shri Shah learned counsel argued that the first appellate Court ought to have taken into consideration that portion of Ex. P/1 which recites placing plaintiffs’ father in possession of the land in question and it ought to have been held that there was delivery of property to plaintiffs father and sale of the land in question within the meaning of Section 54 of the Act was complete in favour of the plaintiffs’ father. He argued that there was no legal bar in reading Ex. P/1 for collateral purposes of proving delivery of possession in favour of plaintiff’s father. He also submitted that the document was nearly 70 years old and conscience of the Court should be satisfied that there was valid sale in respect of the land in question in favour of plaintiffs father. He also referred to Raghunath v. Kedarnath, AIR 1969 SC 1316 and submitted that there was an amendment in the year 1929 to the Transfer of Property Act and effect of this had not been taken note of by the first appellate Court. He urged for allowing the appeal and restoring the judgment and decree passed in favour of the plaintiffs by the trial Court.
9. Controverting Shri Shah’s submissions Shri Chafekar learned counsel for the respondent submitted that whether or not the Transfer of Property Act in the year 1920 was applicable to the area of place where the land was situated, was not very much relevant. The question to be seen was the time when Ex. P/1 whose Hindi translation is Ex. P/1A was tendered in evidence and that was long after the year 1929, when the amendment had been made in Section 49 of the Registration Act 1908. Relying on the Supreme Court decision in Reghunath’s case (supra) he submitted that the Court below was right in excluding the document of sale Ex. P/1 from consideration even for collateral purposes. He also submitted that the plaintiffs, except for examining one of the plaintiffs i.e. Mohiuddin, did not adduce any evidence to show that the plaintiffs were in possession of the land in question. Plaintiff Mohiuddin did not speak a word about plaintiffs’ possession over the land in question. He only spoke to his father having purchased the land on the basis of Ex. P/1 the sale deed. No other evidence was led to show that plaintiffs’ possession over the land which admittedly is fallow and open land. No fencing or compound was put over the same by the plaintiffs and it is used as a path way.
10. Relying on Muncipal Corporation Indore v. State of M.P., 1972 MPLJ 598 : (AIR 1973 MP 186) Shri Chafekar argued that Nagar Palika Khargone would be the owner of open land since it was not satisfactorily shown that the land was owned by some other person and title to the same vested in him. In absence of that, the Nagar Palika would have ownership over the same and the Court below was justified in dismissing the plaintiffs’ suit.
11. Relying on Chinnasami Chetty v. Manikammal, AIR 1937 Madras 265 Shri Chafekar submitted that in the instant case, there was no proof of oral sale and delivery of possession and, therefore, unregistered sale deed would not confer title on the plaintiff-appellants.
12. Proceeding further as to Shri Shah’s contention that the document was more than 30 years old, Shri Chafekar relying on Chandulal Asharam Travadi v. Bai Kashi, AIR 1939 Bombay 59 submitted that under Section 90 of the Evidence Act 1872, the presumption arising from that document coming from proper custody is as to its execution, but it does not involve any presumption that contents of documents are true. In absence of proper proof that there was delivery of possession of the land in question to the plaintiff’s father, it could not be held or said that there was delivery of possession to him. There being no registered sale deed and there being no proof of delivery of possession, even if the alleged sale was below Rs. 25/- the Court below was right in allowing the appeal and dismissing the suit of the plaintiffs shri Chafekar also urged that there was discrepancy in the identity of the land as stated in para 1 of the plaint and description of the same in Ex. P/1 as noted by the first appellate Court in para 16 of its judgment. For the aforesaid reasons, Shri Chafekar urged for dismissal of the appeal.
13. Material portion of Section 54 of the Transfer of Property Act reads as under :
In the case of tangible immovable property, of a value less then one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
In the instant suit, sale of the piece of land is said to have taken place for a value less than one hundred rupees. The transfer, therefore, could be made either by a registered instrument or by delivery of the piece of land. There is no registered instrument. The question, therefore, to be seen is whether there is proof of delivery of possession of piece of land to the father of the plaintiffs.
14. The plaintiffs examined one of them Mohiuddin and his evidence does not at all prove delivery of possession to plaintiffs father. There is nothing to show that plaintiffs father or the plaintiffs took possession of the land by constructing a wall or fencing around the same. There is also no documentary evidence like village or municipal papers to show possession of the plaintiffs or their father over the piece of land.
15. Shri Shah urged that Ex. P/1 being more than 30 years old and coming from proper custody, should be read for collateral purposes for proving possession of the plaintiffs over the land and reliance for the purpose of Section 90 of the Evidence Act is not acceptable. Section 90 of the Evidence Act reads as under :–
Section 90 Presumption as to Documents Thirty Years Old: Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the Particular case considers proper the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.
EXPLANATION :– Documents are said to be in proper custody if they are in the place in which, and under the case of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
From the above, it would be seen that if the document purported or proved to be 30 years old is produced from custody which the Court considers to be proper, the presumption that the signature and every other part of such document, which purports to be in the handwriting of any particular person is in that person’s handwriting and, in the case of a document executed or attested, that it was duly executed and attested. Assuming that the document is more than thirty years old and comes from proper custody, there would be no presumption that contents of the same are true. The portion of Ex. P/1 reciting delivery of possession to plaintiffs’s father cannot be considered to be proved in absence of proof of delivery of piece of land to plaintiff’s father. Bombay High Court’s decision in Chandulal’s case (supra) would support this view.
16. Shri Shah also argued that at the relevant time and the place i.e. Khargone, the Transfer of Property Act 1882 was not applicable because Khargone formed part of a Princly State where the Act could not apply.
Shri Shah also submitted that at the relevant time sale of the immoveable property where the value was less then one hundred rupees, did not require compulsory registration under Section 17 of the Registration Act and this became necessary only by amendment made in Section 49 of the Registration Act in the year 1929. As the document Ex. P/1 was executed in the year 1920 and the Transfer of Property Act was not applicable at the relevant tiie, the amendment made in Section 49, would not apply. For this he relied on Surpreme Court decision in Raghunath’s case (supra) As already stated, relying on the same decision Shri Chafekar submitted that the relevant time when admissibility of the document has to be considered is when the document is sought to be exhibited in evidence, because Sub-section (c) of Section 49 of the Registration Act bars reception of any document required by Section 17 (of the Registration Act) or by any provisions of the Transfer of Property Act to be registered, of any transaction affecting inter alia any immoveable property. He also submitted that the present case does not fall under the proviso to Section 49 of the Registration Act which permits reception of un-registered document affecting immovable property as evidence in the case.
17. The contention urged by Shri Shah involves examination of the facts which, in absence of proper pleadings, could not be taken up at the second appellate stage at the time of arguments. No foundation for appreciation of this argument has been laid. It has not been pleaded at the earlier stages nor is there any evidence to show that at the relevant time and place, the Transfer of Property Act 1882 was not applicable. In absence of all this, whether or not, the Transfer of Property Act was applicable, at the relevant time and place and apply to the document Ex. P/1 and if not its effect, cannot be examined at this stage.
18. In the instant suit, the document of sale Ex. P/1 is for consideration of less than one hundred rupees. The non-registration of the document, would not have invalidated the same if prior oral sale and delivery of possession as held necessary in D. B. decision of Madras High Court in Chinnasami Chetty’s case (supra) were held established. In the instant case, however, delivery of possession of the piece of land to plaintiffs father or possession of the plaintiffs over the land has not at all been established. Besides, the land is an open piece of land which is also being used by people as a path way. Having regard to this effect, the decision in Municipal Corporation Indore’s case (supra) the court below did not commit any error in holding that the plaintiffs had failed to prove their ownership over the land and dismissing their Claim for declaration of title.
19. As a result of the foregoing discussion, the appeal is dismissed with no order as to costs. A decree be drawn up accordingly.