The central legal point established in the judgment is that the intention of the parties, as reflected in the sale-deed, determines the passing of title and possession, particularly regarding the payment of consideration money.

Sinha, J.

1. This is a defendants second appeal from the decision of the learned Additional Subordinate Judge of Arrah, dated 9th April 1947, reversing that of the Munsif of the same place dated 29th June 1946, in a suit for ejectment.

2. The plaintiffs-respondents instituted the suit for possession in respect of the southern portion of survey plot No. 71 in khata No. 199 of Tillage Nasriganj on the basis of a sale-deed admittedly executed by the defendant on 17th January 1941. The plaintiffs case was that plaintiffs 2 to 4 having obtained the sale-deed executed another sale-deed in favour of plaintiff 1 on and July 1943, and thereupon the plaintiffs came in possession of the disputed property. Subsequently, the defendant dispossessed plaintiff 1. Hence, the suit for possession and mesne profits as also for injunction.

3. The suit was contested by the defendant on the ground that though he executed the sale deed on 17th January 1941, no consideration was paid for that deed with the result that the registered document remained with the defendant, and the transaction was never given effect to, as the intention of the parties was that the title would pass only upon payment of the consideration money.

4. The trial Court dismissed the suit holding that the plaintiffs were never in possession because the contract between the parties appears to have been that the title would pass only upon payment of the consideration money, and as consideration never passed, title and possession both remained with the defendant. On appeal by the plaintiffs, the lower appellate Court has reversed that decision and come to the conclusion which, as will presently appear, is not very consistent. In part I of its judgment the lower appellate Court finds that on a true construction of the sale deed itself the inference was that the title would pass on the execution of the sale-deed ; but in the latter part of the judgment, it has observed that the contract between the parties was that possession will not be delivered over to the purchaser without the payment of the consideration money, and that on that ground the plaintiffs were not entitled to recovery of possession and mesne profits. Therefore, the lower appellate Court passed a conditional decree for possession on payment of the consideration money, namely, Rs. 1100.

5. In this second appeal, the learned counsel for the defendant-appellant has contended, and in my opinion rightly, that the finding of the appellate Court is inconsistent, and that on a proper consideration of the sale-deed in question (Ex. a) the intention of the parties unmistakably was that the title would not pass until the money had been paid, and as the money remained up paid for about three years, the contract fell through and the transaction was never given effect to. We have read the original document, the sale-deed of 1941, and the recitals are on the same lines as in the case which went before a Letters Patent Bench, in the case of Md. Murtaza V/s. Abdul Rahman, 27 Fat. 132: (A.I.R. (86) 1949 pat. 364). It is clearly recited that for a consideration of Rs. 1100 the property was being sold as the money was very urgently needed; and that every farthing of the consideration money had been paid up and possession made over to the purchasers. But both the Courts below have found that possession was never delivered to the purchasers, nor was the registered sale-deed itself, which continued in the custody of the vendor. Both the Courts below have agreed in finding that not a single farthing passed under the document. Hence, the construction, which was put in the case referred to, is the construction which must be placed upon EX. A. The inference, therefore, irresistible that the intention of the parties was that title would not pass if money had not been paid, and as the money had not been paid, the title remained where it was. In other words, the transaction was a dead letter. That being so, the decision of the learned Munsif