JUDGMENT 1. :- Instant appeal, impugns the judgment and decree dated Feb. 23, 1985 of the learned District Judge Tonk whereby the suit instituted by the plaintiff respondent No.1 (for short the plaintiff) for possession of the property in question and recovery of mesne profits against the defendant appellant (for short the defendant No.1) and defendant respondent No.2 (for short defendant No.2) was decreed. 2. Brief facts are that the plaintiff instituted the aforementioned suit with the averments that shop in question was purchased by the plaintiff from the defendant No.1 through a registered sale deed dated December 22, 1979 in consideration of Rs. 27,000/-. Despite the fact of handing over the possession of the shop mentioned in the sale deed, the defendant did not hand over the actual possession, therefore the plaintiff was entitled to the possession of the said shop together with the mesne profits at the rate of Rs. 270/- per month. The defendant No.1 in his written statement pleaded that he had already handed over the possession of the shop through Prabhulal after execution of sale deed dated December 22, 1979, therefore he did not have any concern with the shop. The fact that he promised to handover possession within 7 days was wrong. The defendant No.2 in his separate written statement averred that the shop in dispute was the property of joint Hindu family consisting of defendant No.2 and other members of his family. The defendant No.1 had no right to sell the shop. It was further pleaded that shop was in the possession of one Suraj Karan since April 15, 1978 onwards. The suit was filed collusively by the plaintiff and defendant No.1 and no cause of action arose against the defendant No.2. Other legal objections regarding non-joinder of parties, improper valuation of suit etc. were also raised. 3. The learned trial court framed as many as eleven issues which have been incorporated in the impugned judgment. 4. The plaintiff examined as many as four witnesses whereas the defendants produced five witnesses. As many as four documents were exhibited by the parties. 5. The learned trial court decided issues No. 1,2,3,4,5,8,9,10 and 11 in favour of the plaintiff. The issues No. 6 & 7 were found unnecessary and they were not decided. 6. 4. The plaintiff examined as many as four witnesses whereas the defendants produced five witnesses. As many as four documents were exhibited by the parties. 5. The learned trial court decided issues No. 1,2,3,4,5,8,9,10 and 11 in favour of the plaintiff. The issues No. 6 & 7 were found unnecessary and they were not decided. 6. During the pendency of the appeal an application under Order 41 Rule 27 Civil Procedure Code was filed by the defendant No.2 along with a copy of the registered sale deed dated June 6. 1922. 7. Assailing the impugned judgment and decree Mr. Narendra Jain, learned counsel appearing for the defendants, canvassed that sale deed dated April 5, 1978 (Ex. A 1) was not proved and it could not have been read in evidence. The executor of the sale deed Shri Rameshwar as well as the attesting witnesses Radhey Shyam and Ridhikaran were not examined. More so the sale was not complete and title of land did not pass. It is evident that actual physical possession was not handed over. The provisions of section 67 of the Evidence Act and section 54 of the Transfer of Property Act are attracted and decree for possession could not have been granted in favour of the plaintiff. Learned counsel further contended that the property in issue was ancestral property and could not have been sold by Rameshwar. Therefore issue No.5 was wrongly decided. In support of the application under Order 41 Rule 27 Civil Procedure Code., learned counsel contended that from the document dated June 6, 1922 it is apparent that property in dispute was ancestral property and it could not have been sold by Shri Rameshwar alone. Taking on record the said document is necessary for the just decision of the case therefore the application under Order 41 Rule 47 Civil Procedure Code may be accepted. Learned counsel further contended that filing of suit for cancellation of sale deed was not necessary and mesne profits of the property were also not properly calculated. Mr. Jain learned counsel placed reliance on the following: 1. AIR 1937 Manipur page 9 (Kanjebam vs. Mani Pur Drivers Union) . 2. Bhanwaria vs. Ram Ratan (1955 RLW Page 81) . 3. Bhutkani Nath vs., Mst. Kamleshwari (AIR 1972 Assam 15) 4. Ramu vs. Papaiah (AIR 1996 Karnataka 51) 5. Gokam Chinna vs. Nagarain Baliga (AIR 1956 Hyderabad 170) 6. Jain learned counsel placed reliance on the following: 1. AIR 1937 Manipur page 9 (Kanjebam vs. Mani Pur Drivers Union) . 2. Bhanwaria vs. Ram Ratan (1955 RLW Page 81) . 3. Bhutkani Nath vs., Mst. Kamleshwari (AIR 1972 Assam 15) 4. Ramu vs. Papaiah (AIR 1996 Karnataka 51) 5. Gokam Chinna vs. Nagarain Baliga (AIR 1956 Hyderabad 170) 6. Bhikha Bhai vs. Chiman Lal (AIR 1953 Bombay 437) 7. Mathura Prasad vs. Chandra Narain ( AIR 1921 PC 8 ) 8. Sohan Lal vs. Mohan Lal AIR 1928 Allahabad 726 9. Billa Jagan Mohan vs. Billa Sanjeev Reddi ( 1994(4) SCC 659 ) 10. Ummed Singh vs. Chiranji Lal ( 1986 RLR 281 ) 11. Annanthamathi vs., Thochappa Shetty (AIR 1960 Mysore 304) 8. On the other hand Mr. A.K. Pareek, learned counsel appearing for the plaintiff supported the impugned judgment and decree and urged that the application under Order 41 Rule 27 Civil Procedure Code cannot be accepted as the defendant No.2 had knowledge of the document during trial but he did not choose to file it. Defendant No.2 has mentioned wrong facts in the application and it deserves to be dismissed on this ground alone. Learned counsel further contended that the defendant No.2 had also impliedly consented the sale deed in question and he is estopped from raising objection. No suit for cancellation of sale deed was filed therefore the objection cannot be raised now. Learned counsel placed reliance on the following - 12. Vimal Chand vs. Gyan Chand (D.B. Civil Special Appeal No. 78187 decided on 15.1.1996 upheld by Supreme Court in S.L.P. No. 11336 of 1996 dated 8.8.1996) 13. Kishan Singh vs. Suraj Prakash (1974 RLW 168) 14. Prem Narain vs. Kanwar Ji AIR 1993 Madhya Pradesh 162 15. Gopal Kishan vs. Mohd. Haji Latif ( AIR 1968 Supreme Court 1413) 9. I have bestowed my anxious consideration to the rival contentions and carefully perused the record and case law cited at the bar. 10. Defendant appellant Gyarsi Lal in his application under Order 41 Rule 27 Civil Procedure Code stated in para 3 of the application that before August 1986 he was not aware with the registered sale deed dated 6.6.1922. Replying the application it has been averred by the plaintiff that the defendant appellant stated in his statement before the trial court that the shop in dispute was purchased by the grand father. Replying the application it has been averred by the plaintiff that the defendant appellant stated in his statement before the trial court that the shop in dispute was purchased by the grand father. As such the appellant has made a wrong statement. The appellant therefore has failed to establish that despite of his due diligence he could not produce the sale deed. No issue was framed by the trial court as to whether Rameshwar had authority to sell the shop in question and therefore the document sought to be filed was outside the scope of the case. 11. I perused the statement of defendant appellant Gyarsi lal. In his cross examination he stated (English Translation) (This shop was purchased by grand father Bhonri Lal. My father is having its registry.)In the written statement the defendant appellant pleaded that the shop in dispute was joint Hindu family property and he was not bound by its transfer made by his father Rameshwar Lal. 12. Admittedly the defendant appellant is the son of Rameshwar Lal. A perusal of sale deed dated December 12, 1979 (Ex.1) executed by Gambhir Mal (defendant No.1) in favour of the plaintiff, goes to show that Gambhir Mal purchased the shop in dispute from Rameswar Lal through a registered sale deed dated April 5, 1978. Defendant appellant Gyarsi Lal had knowledge of this transfer dated April 5, 1978 as is evident from the written statement filed by him but he did not take step for adjudging the sale deed cancelled. Further when Gambhir Mal took possession of the said shop from Rameshwar the defendant appellant Gyarsi Lal was serving Gambhir Mal as is evident from his statement recorded before the trial court. According to Article --- of the Limitation Act the suit for cancellation of sale deed could have been filed within a period of three years from the date of its knowledge but despite the knowledge of the sale deeds the defendant appellant did not take steps for filing suit for cancellation of sale deed and the period of limitation has been expired. In Bohra Tahir Ali's case [ 1996(1) RLR 166 = 1997(1) WLC (Raj.) 313], this court had occasion to deal with the provisions contained in Order 41 Rule 27 Civil Procedure Code. In Bohra Tahir Ali's case [ 1996(1) RLR 166 = 1997(1) WLC (Raj.) 313], this court had occasion to deal with the provisions contained in Order 41 Rule 27 Civil Procedure Code. After discussing the said provisions this court observed thus - "As the defendant had knowledge of the fact even before the decision of the trial court, about which he wanted to produce additional evidence in the lower appellate court, it was incumbent upon him to show that after the exercise of due diligence, he could not produce the said evidence." 13. In the instant case also the defendant appellant had knowledge of the document but he did not choose to file it in the trial court. More so, I am of the view that in absence of suit for cancellation of sale deeds the application of the appellant is misconceived. The document sought to be filed is not necessary for the decision of the case. Principles laid down in Ummed Singh vs. Chiranji Lal ( 1986 RLR 281 ) and Billa Jagan Mohan vs. Billa Sajiv Reddi ( 1994 (4) SCC 659 ) are not applicable in the facts and circumstances of the case. The application under order 41 Rule 27 Civil Procedure Code therefore deserves to be dismissed on the ground of making wrong fact in the application that he did not have knowledge of the said document during trial of the suit. 14. Now I proceed to discuss the authorities cited by the learned counsel for the parties. 15. Sohan Lal vs. Mohan Lal AIR 1928 Allahabad 726 , it was laid down that delivery of the property means actual delivery and not a constructive delivery. 16. Mathura Prasad vs. Chandra Narain ( AIR 1921 PC 8 ) it was held that for the purpose of section 54 of the Transfer of Property Act the cases of sales of land of less than Rs. 100/- in value there must be a real delivery of the property. 17. Bhikha Bhai vs. Chiman Lal (AIR 1953 Bombay 437) , it was indicated that the delivery contemplated by section 54 is not constructive or symbolic delivery but actual or real delivery. 18. Gokam Chinna vs. Nagarain Baliga (AIR 1956 Hyderabad 170) it was held that the possession contemplated by section 54 of the T.P.Act is actual possession. 19. 17. Bhikha Bhai vs. Chiman Lal (AIR 1953 Bombay 437) , it was indicated that the delivery contemplated by section 54 is not constructive or symbolic delivery but actual or real delivery. 18. Gokam Chinna vs. Nagarain Baliga (AIR 1956 Hyderabad 170) it was held that the possession contemplated by section 54 of the T.P.Act is actual possession. 19. Annanthamathi vs. Thochappa Shetty (AIR 1960 Mysore 304) it was propounded in para 24 by the learned Single Judge as under "That being so, the courts below were not justified in taking the view that the plaintiffs were bound to get the sale by defendant 3 in favour of Sheeny cancelled in the first instance within the period of three years prescribed by Article 31 of the Limitation Act before there could be recovery of possession of those properties." 20. Bhutkani Nath vs. Mst. Kamleshwari (AIR 1972 Assam and Nagaland 15) it was indicated that - "It is true that a sale deed is not required by law to be attested. Even then, proof of execution of sale deed, when it is denied will have to be furnished as in the case of any other document under section 67 of the Evidence Act."2l. Ramu vs. Papaiah (AIR 1996 Karnataka 51) principles in respect of construction of deed have been laid down.22. In Bhanwaria vs. Ram Ratan (1955 RLW Page 81) it was held that proof of signatures of attesting witness is not enough unless executants signatures are proved.23. In Kanyaben vs. Manipur Drivers Union ( AIR 1957 Manipur 9 ) it was laid down that mere identification of the signatures of the witnesses of any document does not amount to proving of the execution of the document.24. In Vimal Chand vs. Gyan Chand (D.B. Civil Special Appeal Na 78/87 decided on 15.1.1996) the Division Bench of this Court (Hon'ble M.P. Singh and M.A.A. Khan JJ.) had occasion to deal with identical questions. The plaintiff in that case also instituted a suit for possession and mesne profits on the basis of a sale deed executed in his favour. The defendant contested the suit on the ground that complete sale price was not paid therefore the sale deed was invalid in the eye of law and no title passed to the plaintiff. The plaintiff in that case also instituted a suit for possession and mesne profits on the basis of a sale deed executed in his favour. The defendant contested the suit on the ground that complete sale price was not paid therefore the sale deed was invalid in the eye of law and no title passed to the plaintiff. The D.B. while deciding the special appeal preferred by the defendant, observed thus "The defendant, if aggrieved, should have filed a suit for cancellation of sale deed within the prescribed period of limitation but that was not done by him. It is not open to him to challenge the validity of same now."25. Now I shall take up the issues and evidence adduced by the parties. Issue No.1 with regard to registration of plaintiff firm, has been proved by the plaintiff by exhibiting certificate of registration Ex.3. The plaintiff also proved issue No.2 that on Dec. 22, 1979 the shop in dispute was sold by the defendant No.1 to the plaintiff and the plaintiff had become owner of the shop. In the written statement the defendant No.1 Gambhir Mal admitted having sold the said shop to the plaintiff. The plaintiff exhibited sale deed Ex. 1. The issue No.3 whether defendant No.1 promised to vacate the shop within a week from the date of execution of sale deed and on that pretext it was stated in the sale deed that actual possession was handed over to the plaintiff, has also been decided in favour of the plaintiff. Learned trial court discussed the statements of PW.2 Prabhulal. PW.3 Radhey Shyam and PW.4 Radha Mohan as well as DW.1 Gambhir Mal and observed that on believing the defendant No.1 that he would vacate the shop within a week, the plaintiff had agreed to incorporate in the sale deed that actual possession was handed over to him. Issue No.4 with respect to mesne profit was also decided in favour of the plaintiff after appreciating the pleadings of the parties and the statements of PW.1 Kedar Nath and PW.3 Radhey Shyam. Issue No.5 that the shop in dispute was the joint Hindu Family property has also been decided in favour of the plaintiff. The learned trial court observed that only Mohd. Ahmed and Amrit Lal were produced by the defendant No.2 in support of his contention. Amrit Lal DW 2/2 and Mohd. Issue No.5 that the shop in dispute was the joint Hindu Family property has also been decided in favour of the plaintiff. The learned trial court observed that only Mohd. Ahmed and Amrit Lal were produced by the defendant No.2 in support of his contention. Amrit Lal DW 2/2 and Mohd. Ahmed DW 2/3 stated that the shop in dispute was in the possession of Suraj Karan but he was not produced. Issues 6 and 7 were found unnecessary by the trial court. Issues No.8, 9 and 10 have also been decided against defendants. I am of the view that these issues have been rightly decided by the learned trial court. From the evidence the defendants could not prove that valuation of shop in dispute was Rs. 50,000/-. So far as issue No.9 is concerned the learned trial court has rightly held that sale deed dated December 22, 1979 could not be declared null and void as no evidence was adduced by the defendants to prove this issue in their favour.26. I am not convinced with the contention of learned counsel for the defendants appellant that sale deed dated April 5, 1978 is not proved as executor Shri Rameshwar as well as attesting witnesses Radhey Shyam and Ridhi Karan were not examined. Defendant No.1 Gambhir Mal admitted sale deed dated April 5, 1978 (Ex. A 1). Gambhir Mal was examined as DW.1 in the trial court. He stated that the shop was purchased by him from Rameshwar Das who put his signatures on the sale deed. Gambhir Mal proved the signatures of witnesses Prem Chand, Ridhi Karan and Radhey Shyam. Testimony of Gambhir Mal could not be shattered in the cross examination. Under these circumstances when the defendant No.1 admitted the sale deed Ex.A 1, it is not necessary to examine the executor and attesting witnesses and authorities cited by the learned counsel for the appellant in support of this contention are not applicable.27. It was next contended by the learned counsel for the defendant appellant that sale by defendant No.1 to the plaintiff vide registered sale deed dated December 22, 1979 (Ex. 1) was not complete as actual physical possession was not handed over to the plaintiff and the fact of delivery of possession was wrongly mentioned in the sale deed. I am unable to persuade myself to agree with the contention. 1) was not complete as actual physical possession was not handed over to the plaintiff and the fact of delivery of possession was wrongly mentioned in the sale deed. I am unable to persuade myself to agree with the contention. Gambhir Mal DW.1 categorically stated in his cross examination that he handed over possession of the shop. Though he denied seeking a week's time to vacate it but is this respect statement of Prabhu Lal PW.2, Radhey Shyam PW.3 and Radhey Mohan PW.4 are to be looked into. Prabhulal stated that inside the office of the Registrar defendant No.1 Gambhir Mal promised to hand over possession after coming and from the office he sought time to vacate it. Radhey Shyam and Radha Mohan, who are attesting witnesses also corroborate this fact that on the.,basis of promise made by Gambhir Mal that he would hand over possession of the shops then and there, the fact regarding handing over possession was incorporated in the sale deed. But Gambhir Mal did not hand over possession and sought time to vacate the shop.28. Statement of Gambhir Mal that he handed over the possession of the shop to the plaintiff on the day of execution of sale deed can be believed to the extent that he handed over symbolic possession and sought time to vacate the shop. Therefore in the facts and circumstances of the case the sale was complete. Section 54 of the Transfer of Property Act defines 'sale' which reads as under - "54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised." In the case on hand, as soon as the sale deed was registered the sale became absolute and the title of the shop in dispute passed to the plaintiff.29. If the defendant appellant was aggrieved by the execution of sale deeds Ex. A.1 and Ex.1 he ought to have instituted suit for cancellation of the said deeds within a period of three years from the date of knowledge of the said deeds, having not done so, he cannot now assail the validity of the sale deeds. I fully subscribe the view expressed by the Division Bench of this court in Vimal Chand vs. Gyan Chand (Supra).30. I fully subscribe the view expressed by the Division Bench of this court in Vimal Chand vs. Gyan Chand (Supra).30. In view of the discussions made hereinabove I see no good reason to interfere with the finding arrived at by the learned trial court.31. Consequently, the appeal fails and is hereby dismissed with costs.Appeal Dismissed with costs. *******