Rajasthan High Court - Jodhpur
Noor Deen vs B.O.R. & Ors on 12 June, 2009
Author: Sangeet Lodha
Bench: Sangeet Lodha
NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97)
1
NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN
AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97)
Dated :- 12th June,2009
HON'BLE MR.JUSTICE SANGEET LODHA
Mr.K.C.Samdariya, for the petitioner.
Mr. G.R.Goyal ) Mr. Rajesh Saharan for Mr. D.S.Rajvi), for the respondent no. 5.
1. In this writ petition , the petitioner has assailed validity of order dated 21.4.97 of the Board of Revenue( in short "the Board"), Rajasthan, whereby an appeal preferred by the respondent no.5 against the judgment and decree dated 17.8.94 passed by the Revenue Appellate Authority, Bikaner (in short "RAA") affirming the judgment and decree dated 24.2.94 decreeing the suit preferred by the petitioner, has been allowed and consequently, the judgment and decree passed in favour of the petitioner directing ejectment of the respondent no. 5 from the suit land , stands set aside.
2. The petitioner was allotted 6 bighas of land in Murabba No.7/3 , Killa No. 21-25 in Chak 4 G.M.(B) . The land was given by the petitioner for cultivation to the respondent no.5. It is alleged that for that purpose, the respondent no. 5 got executed a "Naukarnama" from the petitioner , however, later on, it was revealed that in the name of "Naukarnama" the respondent no. 5 NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 2 has fraudulently obtained thumb impression of the petitioner on an agreement to sell of the land in question. It is stated that the petitioner never agreed to sell the land in favour of the respondent no.5. It is alleged that the petitioner asked for his share of crop, which was refused by the respondent no. 5 on the strength of alleged agreement to sell. In these circumstances, the petitioner preferred the suit for ejectment and possession against the respondent no. 5 u/s 183 of the Rajasthan Tenancy Act, 1955( in short "the Act of 1955" hereinafter) before the court of Assistant Collector, Anoopgarh.
3. The suit was contested by the respondent no. 5 on the strength of agreement to sell of the suit land executed by the petitioner in his favour. On the basis of the pleadings of the parties, following issues were framed by the learned trial court:-
"1- आय क व द पत व द न. 1 व द पत म वर ष
भमम स बदखल ब# भमम प प रन अध( र ह*?
2- आय क पत व द न. 1 पक म इ र रन म तनषप दद
ह न स व द पत म वर ष भमम वह अत कमम न
ह र उस ब# षवध(व ह* ?
3- अन1 ।"
4. After consideration of the material on record, the learned trial court arrived at the finding that the agreement to sell alleged to have been executed by the petitioner in favour of the respondent no. 5 has not been duly proved . The learned trial court observed that respondent no. 5 cannot be said to have NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 3 acquired any right or title on the basis of the alleged unregistered agreement to sell in view of the provisions of Section 17 of the Indian Registration Act,1908 and Section 54 of the Transfer of Property Act, 1882( in short "the Act of 1882"
hereinafter). Accordingly, the learned trial court opined that the respondent no. 5 is occupying the land as trespasser therefore, the petitioner herein is entitled for decree of ejectment and possession. Consequently, the suit preferred by the petitioner was decreed by the learned trial court vide judgment and decree dated 24.2.94.
5. An appeal filed by the respondent no. 5 against the judgment and decree dated 24.2.94 before the RAA also failed . In these circumstances, the respondent no. 5 preferred a second appeal before the Board, which has been allowed by the order impugned and in the result, the judgment and decree dated 24.2.94 passed in favour of the petitioner by the trial court, affirmed by the RAA stands set aside. Hence this petition.
6. During the pendency of the appeal before the Board, a suit preferred by the respondent no. 5 for specific performance of the contract in terms of the agreement to sell dated 17.8.83 was decreed by the Civil Judge (S.D.), Anoopgarh vide judgment and decree dated 18.1.02. However, on an appeal preferred by the petitioner , the aforesaid judgment and decree dated 18.1.02 NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 4 has been set aside by the appellate court vide judgment dated 24.3.05 and the matter stands remanded to the learned trial court to decide the suit, after framing an additional issue as to whether the plaintiff ( respondent no. 5 herein) was ready and willing to perform his part under the contract.
7. During the pendency of the writ petition for hearing, the petitioner has filed an application (I.A. No.6907/09) with a prayer that the status quo be maintained with regard to the suit land till the decision of the suit for specific performance of the contract filed on behalf of the respondent no. 5, presently pending before the Civil Judge(S.D.), Anoopgarh.
8. It is contended by the learned counsel for the petitioner that the Board has seriously erred in setting aside the concurrent finding of facts arrived at by the two courts below . It is submitted by the learned counsel that the Board has committed an error apparent on the face of record in reversing the finding recorded on Issue no. 2 without disturbing the finding of the courts below on Issue no. 1. The learned counsel submitted that the finding recorded by the courts below regarding the agreement being fraudulent has been reversed by the Board in a cursory manner. The learned counsel submitted that an agreement which is unregistered does not confer any right, title or interest on the respondent no. 5 . In this regard, NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 5 the learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of "Patel Natwarlal Rupji vs. Shri Kondh Group Kheti Vishayak & Anr.", JT 1995(9) SC, 479. It is submitted that an agreement can only be enforced if the same is genuine. It is contended that unless the suit for specific performance of the contract filed by the respondent no. 5 is decreed by the competent civil court , he cannot claim any right or title in the land therefore, the judgment and decree of ejectment passed by the learned trial court affirmed by the RAA treating him to be trespasser cannot be faulted with. It is submitted by the learned counsel that since the suit for specific performance of the contract filed by the respondent no. 5 is pending decision before the civil court of competent jurisdiction therefore, till the disposal of the suit, status quo as it exists deserves to be maintained regarding the land in question.
9. On the other hand, the learned counsel appearing on behalf of the respondents submitted that admittedly, the respondent no. 5 has acquired the possession of the land in question in part performance of the contract under the agreement dated 17.8.83, therefore, by no stretch of imagination he can be said to be a trespasser over the land in question. It is submitted by the learned counsel that the entire evidence on record has been duly considered by the Board and NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 6 the finding arrived at by the courts below without examining the material on record and without appreciating the correct position of law has rightly been reversed by the Board. The learned counsel submitted that though the decree for specific performance of the contract passed in favour of the respondent no. 5 by the civil court of competent jurisdiction has been set aside by the Appellate Court and the matter has been remanded to the trial court to decide the same after framing an additional issue, the findings recorded on the issues regarding genuineness of the agreement to sell and the petitioner acquiring the possession in part performance of the contract have not been reversed by the appellate court, therefore, at this stage, the petitioner cannot be permitted to contend that the agreement to sell executed by him in favour of the respondent no. 5 is not a genuine document. It is submitted by the learned counsel that it is settled law that merely because the agreement to sell is not registered and the transfer has not been completed in the manner prescribed by the law for time being in force, the transferor or any person claiming under him cannot enforce any right in respect of the property which the transferees has taken or continued in possession , therefore, the contention raised by the petitioner that unregistered agreement to sell does not create any right in favour of the petitioner is absolutely devoid of NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 7 any merit.
10. I have considered the rival submissions and perused the material on record.
11. Admittedly, the respondent no.5 was put into possession of the suit land by the petitioner himself in terms of the agreement arrived at between the parties. According to the petitioner the agreement executed was only a "Naukarnama" but later on, he came to know that in the name of "Naukarnama", the respondent no. 5 has obtained thumb impression of the petitioner on an agreement to sell of the suit land. But then, it is pertinent to note that in the plaint, it has been specifically averred by the petitioner that the land was given to the respondent no. 5 on cultivation 12-13 years back. The agreement to sell was executed on 17.8.83 whereas, the suit was filed on 6.2.91 therefore, indisputably, the respondent no. 5 was continuing in possession of the land in question even prior to the execution of alleged agreement to sell. Be that as it may, in view of the admitted factual position on record as aforesaid, by no stretch of imagination it can be said that the respondent no. 5 is a trespasser over the land in question.
12. There was no issue framed by the learned trial court with regard to the genuineness of the document and no evidence was led by the parties to prove that the document is fraudulent or NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 8 not genuine. Without there being any positive evidence, establishing that the document is not genuine, the finding recorded by the trial court affirmed by the RAA that the document appears to be suspicious, is not sustainable in eye of law and the same has rightly been reversed by the Board after due appreciation of the evidence on record. Moreover, in the suit filed by the respondent no. 5 before the civil court of competent jurisdiction, the specific issues were framed with regard to the genuineness of the agreement to sell and the petitioner acquiring the possession in part performance of the contract. The agreement to sell executed by the petitioner in favour of the respondent no. 5 has been found to be duly proved by the civil court. However, since presently in terms of the remand order passed by the appellate court, the matter is sub judice before the civil court, therefore, at this stage, it would be inappropriate for this court to comment upon the issue of the genuineness of the document in question.
13. There is no substance in the contention of the learned counsel for the petitioner that on the strength of unregistered agreement to sell, the respondent no. 5 cannot claim any enforceable right in the land in question. It is settled law that even if an instrument of transfer is defective and has not been executed and completed in the manner as prescribed therefor by NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 9 the law , the transferor or the successor in interest are debarred from enforcing any right against the transferee in respect of the property of which transferee has taken possession or continued in possession. The transferor or his successor in interest cannot claim any advantage on account of non registration of the document or non fulfillment of other formalities under the law. Thus, even if it is assumed that no valid title is transferred under the agreement to sell, the transferee has a right to protect his possession over the land in question by virtue of provisions of Section 53 A of the Act of 1882.
14. In Patel Natwarlal Rupji's case (supra), relied upon by the learned counsel all that has been said by the Hon'ble Supreme Court is that the contract of sale of immovable property does not create any title except u/s 54 . However, recognizing the rights of the transferee under an unregistered contract, the Hon'ble Apex Court has observed as under:-
"5.Section 53-A of the Act provides that where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf which constitutes 'transfer' and the transferee has, in part performance of the contract, taken possession of the property of the transferor, the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 10 transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
6. Though the doctrine of part performance embodies in Section 53-A of the Act is part of equitable doctrine in English Law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the Contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract , the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, an section bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53-A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title."
15. Thus, in view of the settled position of law as aforesaid, in considered opinion of this court, until the issue with regard to the genuineness of the document is determined by the civil court and the alleged agreement to sell is proved to be got executed by NOOR DEEN VS. THE BOARD OF REVENUE FOR RAJASTHAN AT AJMER & ORS.
(S.B.CIVIL WRIT PETITION NO. 2914/97) 11 committing fraud, by prejudging the issue and doubting the genuineness of the document, the respondent no. 5 who has been admittedly put into possession of the land in question by the petitioner himself, cannot be ejected from the suit land treating him to be trespasser.
16. The petitioner is also not entitled for relief of maintaining status quo with regard to the land in question till the decision of the suit filed by the respondent no.5 by the civil court. Admittedly, the petitioner has been given possession in execution of the decree passed by the trial court, affirmed by the RAA, which stands set aside by the Board ,therefore, he cannot retain the possession of the suit land and the same deserves to be handed over to the respondent no. 5 forthwith.
17. In the result, the writ petition fails, it is hereby dismissed. The application IA No. 6907/09 is also rejected. The petitioner is directed to hand over the possession of the land to the respondent no. 5 forthwith. No order as to costs.
(SANGEET LODHA),J.
Aditya/-