The validity of a sale of tangible immovable property depends on the transfer of possession along with the execution of a registered sale deed, and the intention of the parties and the payment of sale consideration are crucial in determining the validity of a sale.

JUDGMENT :

Achintya Malla Bujor Barua, J.

1. Heard Mr. BD Deka, learned counsel for the appellants. Also heard Mr. AC Sarma, learned counsel for the respondent.

2. The respondent/plaintiff instituted T.S No. 9/2001 in the Court of the learned Civil Judge (Sr. Div), Morigaon claiming for right, title and interest over the schedule A land and further for declaring that the registered gift deed No. 843 dated 20.07.2001 is null and void as per the provisions of Section 52 of the Transfer of Property Act with a further decree for delivery of khas possession as well as for permanent injunction restraining the principal defendant from creating any disturbance to the plaintiff from possessing the suit land. The suit land is a plot of land measuring 1 katha 15 lechas out of 1 bigha, 3 kathas and 12 lechas as mentioned in the registered sale deed No. 30 dated 04.01.1989 and which is a part of 0 bigha, 1 katha and 15 lechas of land mentioned in schedule 'Gha' of a decree passed in T.S No. 52/92 in the Court of learned District Judge, Morigaon.

3. In paragraph 3 of the plaint it has been stated that the principal defendant No. 1, who was in possession of 1 katha 15 lechas of the suit land sold 1 katha 10 lechas therefrom by executing a registered sale deed No. 30 dated 04.01.1989 for a consideration of Rs. 49,000/- and delivered possession thereof to the plaintiff while he was in possession of the suit land. The plaintiff also applied for mutation and on 20.06.1992 obtained permission from Morigaon Town Committee for construction of a permanent dwelling house.

4. In paragraph 8, it is stated that on 01.07.2001 when the plaintiff went to his purchased plot of land, the principal defendant No. 1 along with the principal defendants No. 2, 3 and 4 obstructed him from entering the said land.

5. In paragraph 12 of the written statement, the principal defendants No. 1, 2 and 3 in answer to paragraph 3 of the plaint had not admitted that the principal defendant No. 1 was in possession of 1 katha, 15 lechas of land out of which he had sold out 1 katha, 10 lechas by registered sale deed in favour of the plaintiff for a consideration of Rs. 49,000/-. In other words, the principal defendants had wholly denied the claim of the plaintiff as regards the purchase of the land by a registered sale deed. The averments made in paragraph 8 of the plaint were also denied by stating it to be false and baseless.

6. On the other hand, in paragraph 21 of the written statement the principal defendants took the stand that the registered sale deed was executed by the principal defendant No. 1 in favour of the plaintiff on 04.01.1989, but the sale was not effected by any delivery of possession. It was further stated that there were several persons claiming right title and interest and possession over the land and, therefore, the principal defendant No. 1 failed to deliver possession to the plaintiff.

7. A reading of the stand of the principal defendants in paragraph 21 of the written statement gives an indication that the defendants may have created a right in favour of many other persons and, therefore, they had not handed over the possession and as such according to the defendants the sale itself is an invalid sale.

8. The learned trial court in its judgment dated 06.09.2002 while deciding the issues Nos. 5 and 6 as to whether the plaintiff has got right title and interest over the suit land and whether the plaintiff is entitled to get khas possession of the suit land, arrived at its conclusion after discussing the evidence on record that although the exhibit-1 sale deed was executed between the plaintiff and the principal defendant No. 1, but the possession of the suit land was never handed over to the plaintiff at any point of time, as there was no vacant land over the dag No. 22 of PP No. 708 at the relevant point of time.

9. The learned trial court took the view that in a sale of tangible immovable property there has to be an execution of registered sale deed accompanied