The passing of title in a sale of immovable property is not dependent on the passing of consideration, if the intention of the parties is that property should pass on registration.

PASAYAT, J.

( 1 ) PRESENT appeal is directed against the judgment dated 18-8-1983, and consequential decree passed by the learned Subordinate Judge, Jagatsinghpur (as was then designated) in Title Suit No. 61 of 1982, where the reliefs sought for were for declaration of title, confirmation of possession, and in the alternative for recovery of possession.

( 2 ) POSITION of the parties in the present appeal vis-a-vis the suit is as follows:appellant was defendant No. 2 in the suit; respondents 1 to 3 were plaintiffs in the Court below and respondent No. 4 was defendant No. 1.

( 3 ) PLAINTIFFS' case in essence was as follows:defendant No. 1 being owner of the suit land transferred the same by a registered sale deed dated 7-6-1982 to the plaintiffs for a consideration of Rs. 5,000/ -. There was an agreement between the vendor and the vendees that plaintiff No, 1, who was staying at Calcutta, shall pay consideration money after his return therefrom. The sale deed was executed and registered with a condition that the consideration money shall be paid at the time of endorsement of the registration ticket, after registration of the deed. On 8-6-1982 no intimation could be given to the plaintiff No, 1 due to cyclone. On 9-6-1982, therefore, he was intimated to come with the consideration money. On 12-6-1982, plaintiff No. 1 came and offered the consideration money to defendant No. 1. It was then disclosed that she had already transferred the land in favour of defendant No. 2 by cancelling the earlier sale deed. On enquiry, the plaintiffs came to know that on 9-6-1982 defendant No. 1 purchased stamp paper for cancellation of sale deed in favour of the plaintiffs, and on 10-6-1982 the deed of cancellation was made by defendant No. 1. On that very day, i. e. , 10-6-1982, defendant No. 1 executed and registered another deed in favour of defendant No. 2 on 7-7-1982, the plaintiffs filed the suit as defendant No. 2 disturbed their possession. It was the specific stand of plaintiffs that possession was delivered to them. Both the defendants contested the suit by filing their written statements. Their case in short is that title in respect of the suit land had not passed in favour of the plaintiffs. as they had not paid the consideration money. Defendant No. 1, therefore, being left with no other alternative, cancelled the sale deed and executed another sale deed in favour of defendant No. 2 on 10-6-1982.

( 4 ) TRIAL Court framed six issues out of which issue No. 3 was the pivotal issue which reads as follows:" (3) Whether the passing of title in this case depended upon the passing of consideration?''three witnesses were examined by the plaintiffs and plaintiff No. 1 himself was examined as P. W. 1. Defendants examined four witnesses out of whom defendant No, 1 herself was examined as D. W. 1. Trial Court on consideration of materials on record came to hold that the documents more particularly the sale deed (Ext. 2) established that passing of title was not dependent upon passing of consideration. While decreeing the plaintiffs' suit is directed the plaintiffs to pay Rs. 5,000/ - to defendant No. 1 towards consideration money. The plaintiffs have deposited the same in trial Court.

( 5 ) ACCORDING to learned counsel for appellant, the conclusion that passing of title was not dependent upon payment of consideration is indefeasible. A too technical reading of the sale deed (Ext. 2) as regards passing of title should not have been done. Conclusions of the learned trial Judge regarding delivery of possession are not based on record, and therefore, the plaintiffs' suit should have been dismissed. Learned counsel for respondents on the other hand submitted that payment of consideration was not sine qua non for passing of title as has been rightly held by the learned trial Judge, and there is no infirmity in his judgment to warrant any interference.

( 6 ) SECTION 54 of the Transfer of Property Act, 1882 (in short, the 'act') is a part of Chapter