Section 31(1) of the Orissa Tenancy Act, 1913, overrides Section 54 of the Transfer of Property Act, 1882, in relation to the transfer of occupancy holdings, and all such transfers must be made by registered instrument.

Judgement

Narasimham, J. :- This is an appeal from the appellate judgment of the District Judge of Cuttack reversing the judgment of the Munsif of Jaipur and dismissing the appellants-plaintiffs suit for ejectment of the defendant-respondent from a house in village Rebana in Jajpur subdivision.

2. It is an unchallenged fact that the disputed property consists of survey plot Nos. 446 and 447 having an area of .09 decimals and .04 decimals respectively and recorded in Khata No. 8 in the last settlement operations, The Khatian, however, was not exhibited in the lower Court but the statement in the plaint giving the aforesaid plot numbers, area and khata number have not been controverted in the written statement. It is also an unchallenged fact that the said two plots lie in the Basti of the village and at present there is a house standing thereon with its appurtenant Bari. It is further admitted by the parties that the previous owner of the property was one Rukuni Bewa. The plaintiffs claimed to have purchased the property from her by two kabalas dated 8-4-1943 and 25-6-1913. They alleged that the defendant was occupying the house as a tenant-at-will of Rukuni Bewa at a monthly rental of Rs. 1-8-0 and that after the plaintiffs purchase the defendant was asked to vacate the house but he refused. Thereupon, the plaintiffs issued a notice to quit on 2-9-1943 and then instituted the present suit for declaration of their title, recovery of possession, after eviction of the defendant therefrom and also for consequential reliefs such as recovery of arrear rental due from the defendant. The defendant contended that he had purchased the same property from Rukuni Bewa by an oral sale sometime in 1942 and that at that time there was no house standing on the plots. He claimed to have constructed a building thereon and to be staying there in his own right. He therefore challenged the title of the plaintiffs on the ground of prior sale from the original owner. The trial Court disbelieved the defendants story of oral sale and held that the plaintiffs acquired valid title to the property by the two registered kabalas executed in their favour by Rukuni. But he disbelieved the plaintiffs story of the defendant occupying the house as a tenant and consequently while decreeing the plaintiffs suit for ejectment and recovery of possession he disallowed their claim for arrears of rent. The lower appellate Court however accepted the defendants story of prior oral sale accompanied fey delivery of possession from Rukuni Bewa and held that the defendants title to the property must prevail over the subsequent sale by Rukuni Bewa in favour of the plaintiffs even though the latter might have been made by registered documents As the value of the property was admittedly below Rs. 100 he held that under S. 54, Transfer of Property Act, title validly passed by oral sale accompanied by delivery of possession. One of the points taken up before appellate Court was that notwithstanding anything contained in S. 54, T. P. Act, all transfers of occupancy holdings or portions of the same, irrespective of their value, should be made by registered instruments as expressly provided in S. 31 (1), Orissa Tenancy Act, as amended by Orissa Act viii [8] of 1938, and that consequently the oral sale in favour of the defendant could not convey any title The learned lower appellate Court has not dealt with this question in a satisfactory manner. It is difficult to say what exactly his decision is on this question. He seem to have held that S. 54, T. P. Act, would prevail and that the defendant acquired good title by oral sale accompanied by delivery of possession.

3. In the second appeal the findings on facts of the lower appellate Court were not challenged but the following two questions of law were argued at great length, (i) Section 31 (1), Orissa Tenancy Act, should prevail over S. 54, T. P. Act, and consequently the sale of an occupancy holding or a portion thereof without a regist