The intention of the parties to a sale of land regarding the passing of title is to be gathered from the sale deed itself, and evidence is admissible to show that the recital of payment of consideration is untrue.

Chatterji, J.

1. This is an appeal by the plain-tiff in a suit for declaration of title and recovery of possession in respect of 1 katha of land out of Survey Plot No. 1169 in village Sultangunj.

2. The plaintiff claims title to the disputed 1 katha of land under a registered sale-deed, dated the 5th October 1942, executed in his favour by defendant No. 1 for Rs. 100.00 in respect of the entire Plot No. 1169 measuring .05 acre equivalent to 1 katha 14 1/2 dhurs. The plaintiffs case is that he paid the entire consideration money to defendant No. 1, but the latter never made over the registered sale-deed to him in spite of demands. The plaintiff, however, it is said, came into possession of the entire plot and amalgamated 15 dhurs out of it with his house. The remaining 1 katha which is in dispute was used by him as his bari, but the defendants dispossessed him from it on 1st Asarh 1353 Fs. (June 1946). The suit was instituted on 6th July 1946.

3. The defendants belong to the same family of which the defendant No. 1 is the head. Their defence is that the real consideration of the sale-deed in favour of the plaintiff, executed by defendant No. 1, was Rs. 170.00 though only Rs. 100/-was mentioned in the deed, and that the plaintiff paid only Rs. 70.00 out of the consideration and did not pay the balance and, therefore, the sale-deed remained with the defendants. There was a difference between the parties which was referred to Panches and, according to the decision of the panches, defendant No. 1 was to execute a fresh sale-deed in favour of the plaintiff in respect of 14 dhurs out of the Plot No. 1169. The plaintiff accordingly amalgamated 14 dhurs with his house and the disputed 1 katha remained in possession of the defendants as before. The defendant No. 1 also executed a fresh sale-deed for Rs. 50.00 in favour of the plaintiffs son in respect of this 14 dhurs. This sale-deed, however, was not registered. According to the defendants, the registered sale-deed, dated the 5th October 1942, is inoperative and the plaintiff is not entitled to any relief on the basis of that deed.

4. The learned Munsiff who tried the suit held that the defendants were precluded by Section 92 of the Evidence Act from proving that the consideration money of the sale-deed in question was not Rs. 100.00 but Rs. 170/-. He also held that the plaintiff paid the entire consideration money Rs. 100.00 and came into possession of the entire plot, but was subsequently dispossessed by the defendant from the disputed land. He did not accept the story of the panchayati set up by the defendants. He accordingly decreed the suit.

5. On appeal, the learned Subordinate Judge agreed with the learned Munsiff that oral evidence was not admissible to prove that the consideration of the sale-deed in question was RS. 170.00 and not Rs. 100/-. But he held that out of the consideration of Rs. 100.00 the plaintiff paid Rs. 70.00 only to defendant No. 1.He also held that the Intention of the parties was that title to the land would pass on payment of the entire consideration and as the entire, consideration was not paid, the plaintiff did not acquire any title to the disputed land. He further held that the plaintiff never came into possession of any portion of plot No. 1169 by virtue of the sale-deed, but came into possession of only 14 1/2 dhurs out of it, sometime later as a result of the panchyati alleged by the defendants. He, however, did not accept the defendants case about the execution of the subsequent sale-deed in respect of the 14 1/2 dhurs. In the result he allowed the appeal and dismissed the suit. Hence this second appeal.

6. The main question for determination in this appeal is whether title passed, on the mere execution and registration of the sale-deed in question, or, the intention of the parties was that title would not pass until the full consideration was paid. This question has been considered by this Court in various cases and it is now well-settled