An oral sale of land can be valid even if the vendee is already in possession of the land prior to the sale, provided that the vendor makes a declaration that from the date of sale the permissive possession of the vendee would be converted into possession as absolute owner.

P. K. MOHANTY, J.

( 1 ) THIS is a plaintiff's appeal against a reversing decree arising out of a suit for declaration of title to, confirmation or in the alternative recovery of possession of the suit land and for issue of permanent injunction restraining the defendants from interfering with the plaintiff's possession.

( 2 ) THE plaintiff's case runs thus: One Hari Bhoi was the recorded raiyat in respect of the suit land. The land was lying fallow and the plaintiff, after constructing a small thatched hut, began to live there. Subsequently, the said hari Bhoi sold the land to the plaintiff for a sum of Rs. 95/- under an unregistered sale deed dated 18-3-65 and gave formal delivery of possession thereof to him. The plaintiff, after his purchase, improved the suit land, constructed a two-roomed house thereon and possessed the same on payment of rent to the landlord. On 8-2-63 the defendants 1 and 2 obtained a fraudulent sale deed from the said Hari Bhoi and got their names mutated in respect thereof by practising fraud on the Revenue Authorities.

( 3 ) DEFENDANTS 1 and 2 denied the plaint allegations and contended that Hari bhoi, the recorded tenant, while in actual possession of the suit land, sold the same in their favour under the registered sale deed dated 9-2-63 on receipt of cash consideration and put them in possession. They further contended that before their purchase, Hari Bhoi was residing in a two-roomed house standing on the suit land which had become dilapidated for want of repairs and after their purchase they repaired the same. The plaintiff approached them for permission to occupy the house temporarily during the rainy season of 1963-64 and on such permission being given verbally, he occupied it. But subsequently at the instigation of the enemies of the defendants he created false documents in collusion with Hari Bhoi.

( 4 ) THE learned Munsif came to the findings that the unregistered sale deed dated 18-3-60 executed by Hari Bhoi in favour of the plaintiff is genuine but the sale deeds in favour of both the parties were void for want of prior permission of the Revenue authorities. He however decreed the suit on the basis of the plaintiff's admitted possession.

( 5 ) ON appeal, the learned Additional District Judge held that no permission was necessary for transfer of the suit land. He however held, relying on a decision

reported in (1953) 19 Cut LT 278 (Sudarsan Rout v. Jairam Sahu) that the plaintiff acquired no title to the suit land under the unregistered sale deed and as he was already in possession, there could not be any delivery of the property to him within the meaning of Section 54, Transfer of Property Act. Accordingly he dismissed the suit.

( 6 ) IT is conceded by the learned counsel appearing for both the parties that no permission was necessary for transfer of the suit land. The real controversy in this appeal is whether the oral sale can be held to be valid when the plaintiff was already in possession of the suit land prior to the sale and there was no delivery of possession at the time of sale.

( 7 ) THE plaintiff proved the unregistered sale deed -- Ext. 1/d and led evidence to the effect that by the date of the oral sale he was staying on the land with the permission of Hari Bhoi after constructing a thatched shed thereon and that after execution of the sale deed he continued to possess the land as before. He also stated that after purchase he remodelled the house and constructed big rooms after dismantling the old shed. The recitals in the unregistered sale deed-- Ext. 1/d are to the effect that from the date of sale the vendee would possess the land on his own right as absolute owner and would get his name mutated as a raiyat in the revenue records. There are also other recitals regarding default clause, the clause for damages in case of dispossession etc.

( 8 ) SECTION 54 of the T. P. Act provides, inter alia, that the sale of tangible immovable property of the value of less than Rs.