1981 Supreme(MP) 89

C. P. Sen, J.
Mansaram v. Todal Singh
F. A. No. 227 of 1977 (J); Decided on 11.2.1981.

Headnote:(1) Transfer of Property Act, 1882 - S. 118 - exchang of immoveable property of a ralue of more than Rs. 100--must be effected by a registered instrument.

        (2) Specific Relief Act, 1963 - S. 6 - suit for possession - plaintiff when need not proce title - if suit trought after six months - prior possession is sufficient title.

        (3) Transfor of Property Act. 1882 - S. 118 and Principles of Equity-exchange of land held illegal- plaintiff is entitled to possession of his own land on the basis of title.

        This first appeal has been preferred by defendant No.2 against decree for possession and mesne profits passed in favour of the plaintiff by the Trial Court.

        The defendants are brothers. The defendants along with one Omkar owned 1922 acres of land in village Gudhanwara, Tahsil Udaipura, District Raisen. There was mutual partition between the co-owners and Northern portion was allotted to the share of defendant No.2, Middle portion to defendant No. 1 and the Southern portion to Omkar. By a registered sale-deed dated 4-8-1966, the plaintiff purchased the middle portion from defendant No. 1 for a consideration of Rs.6000/-.

       The Plaintiffs case is that after the purchase from Defendant No.1 he was placed in possession of the middle portion shown by red dotted lines in the plaint map. The defendant No. 2 felt some difficulty in cultivation of his lands. Therefore, the parties entered into an agreement whereby the plaintiff was allotted the Eastern portion running from North to South partly owned by him and party by Defendant No.2 shown by blue dotted lines in the plaint. While the plaintiff placed the defendant No. 2 in possession of his remaining middle portion of his and but thereafter the defendants started interfering with his possession. The plaintiff claimed possession of the Eastern portion from which he has been dispossessed and/or in the alternative restoration of his middle portion of the land which he had purchased from the defendant No. 1 and mesne profits amounting to Rs.4,500/- for three years 1969-70 to 1971-72. The learned District Judge passed a decree for deLi"Very of possession of Eastern portion of the land area 6.40 acres and decree for mesne profits mounting to Rs.2,400/- against the defendants.

        The main contention in the appeal is that there being only an oral exchange no title passed to the plaintiff of the Eastern portion shown in the plaint map and his remedy was to file a suit for specific performance of the contract. In the absence of a valid title the plaintiff is not entit1ed to possession nor he can be granted a decree for mesne profits, under section 118 of the Transfer of Property Act exchange can be effected only in the manner by sale and a transfer of any immoveable property of a value of Rs.100/- or more could be effected only by a registered sale-deed under section 54.

        Held: Admittedly the plaintiff did not get title to the entire Eastern portion on the basis of the oral exchange. Title can on1y pass if it was completed by a registered document. The plaintiff could haw also filed a suit for specific performance of the agreement of exchange but his failure to do so would not result in dismissal of his suit. There is no reason why the plaintiff should not get possession of the middle portion which he had purchased under a valid sale-deed from defendant No.1 of which his possession was wrongfully taken by defendant No.2 in breach of the agreement entered into between the parties. The Supreme Court in Nahir Service Society Ltd. v. K. C. Alexander (A. I. R. 1968 S. C. 1165) has held that the correct position is that if section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. Then, however, the period of six months has passed. questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fall. This has been reitereted by the Supreme Court in Somnath Burman v. Dr. S. P. Raju (A. I. R 1970 S. C. 846) that prior possession of plaintiff is sufficient title notwithstanding that suit is brought more than six months after dispossession.

        In the present case, the plaintiff could have get possession of the Eastern portion if he had filed a suit under section 6 of the Specific Relief Act within six months of the dispossession and the question of title would have been irrelevant but this suit has been filed after six months from the date of dispossession.

        The plaintiff could succeed on the basis of title. The defendant No.2 having a better title, the p1aintifrs Claim for possession or the eastern portion of the land exchanged with the defendent without any valid document must fail but there is no reason why the plaintiff should not succeed for restoration of possession of the middle portion which he had purchased from the recorded owner defendant No.2 and from which he has been dispossessed or discontinued from possession. The plaintiff had deLi"Vered possession of the middle portion to the defendant No. 2 on the understanding that he would be placed in possession of the eastern portion of his land but having committed breach thereof, the possession of defendant No.2 has become wrongful and he is in illegal possession because of the breach. The defendant No.2 having been in illegal possession and enjoying the usufruct he is liable to pay mesne profits to the plaintiff.

        Nair Service Society v. K.C. Alexander, AIR 1968 SC 1165 and Somnath Berman v. Dr. S. P. Raju, AIR 1970 SC 846 relied on. Appeal dismissed.