Gauhati High Court
Trailokya Nath & Ors vs Parikshit Das & Ors on 8 May, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA No. 217 of 2005
1) Sri Trailokya Nath.
2) Sri Hemanta Nath,
Both are sons of Late Manmohan Nath
And they are resident of Village : Purbabharal, Mouza Howly,
P.S. Barpeta, District - Barpeta.
3) Smti. Kaishalya Nath,
Wife of Late Manmohan Nath,
Resident of Village : Purbabharal Mouza Howly,
P.S. & District : Barpeta, Assam.
..... Appellants/ Defendants No. 1, 2 & 3
-Versus-
1) Sri Praikshit Das.,
2) Sri Dimbeswar Das,
3) Sri Sarat Das,
4) Sri Paban Das,
5) Sri Chakradhar Das,
6) Sri Abala Das,
7) Smti Jamini Bala Das,
8) Smti Basanta Das.
Respondents No.1 to 5 are sons of 6 to 7 are
daughters of Late Sukh Ram Das.
......... Respondents/ Plaintiffs RSA No.217 of 2005 Page 1 of 9 BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellants : Mr. D. Choudhury, Advocate.
For the Respondents Mr. M.H. Ahmed, Advocate,
Date of hearing & judgment : 08.05.2014
JUDGMENT AND ORDER (Oral)
By this Second Appeal the defendants of Title Suit No. 122 of 2002 has challenged concurrent findings of the learned Courts below whereby, claim of the defendants over Schedule - C land covered by Dag No. 439 measuring 2Katha 16 Lechas by unregistered sale deed was rejected and the suit of the plaintiffs for declaration of his right, title and interest and recovery of possession over the land was decreed.
2] Decree of the suit of the plaintiffs in respect to claim of 2Katha 16 Lechas pertaining to Dag No. 439 of Mouza Howli under Barpeta District has been challenged by the defendant No.2 in this present Second Appeal. The plaintiffs who are 8 in number, being legal heirs of one Suk Charan Das instituted Title Suit No. 122 of 2002 in the Court of learned Civil Judge, Junior Division, Barpeta against Trailakya Nath and his 2 brothers. According to the plaintiffs land measuring 5 Bigha 2 kathas described as Schedule A to the plaint and covered by 3 Dags, namely, Dag No. 437 (Annual), Dag No. 438(Periodic) & Dag No. 439 (Annual) was originally owned by 2 brothers, namely, Suk Charan Das and Mahindra Das. The brothers got the land amicably partitioned in 2 halves each getting 2Bigha 2Kathas 11Lechas of land. Plaintiffs got Northern half of A Schedule RSA No.217 of 2005 Page 2 of 9 land which is the B Schedule land. The share of plaintiffs in Dag No. 437 was to the extent of 2Kathas 1½ Lecha. In Dag No.438, it was 1Bigha 2Katha 13 ½ Lechas and in Annual Dag No. 439 it was 2Katha 16 Lechas. The grievance of the plaintiffs was that Mon Mohan Nath, the predecessor of the principal defendants, illegally obtained Chita Mutation with respect to aforesaid C Schedule land without having any title therein. This C Schedule land is a part of B Schedule land. Once mutation was obtained on 07.07.1992, the foundation of the untanable claim of the defendants was laid in pursuance whereof all them started attempts to dispossessed the plaintiffs from C Schedule land since 12.12.1999 and ultimately dispossess the plaintiffs from the entire B Schedule land including C Schedule land on 02.01.2000. The plaintiffs, therefore, made a prayer for declaration that they have exclusive right, title and interest over B Schedule land and are entitled to Khas possession thereof including C Schedule land by evicting the defendants who are known as trespasser. The defendants decided the suit by filing written statement. The defendants claim that in the year 1974 Suk Charan proposed to sell 1Bigha 2Katha 10Lechas of covered by Dag No. 438 and 2Katha 2 ½ Lecha covered by Dag No. 437 in favour of Mon Mohan Nath, father of the principal defendants. The registered sale deed was executed on 24.05.1974 for 1Bigha 2Katha 10 Lechas periodic patta land under Dag No. 438 on consideration of Rs.600/- whereas 2K 1 ½ Lechas land covered by Dag No. 437 being Annual Patta land was verbally sold to Mon Mohan Nath on consideration of Rs.80/-. Possession of both the plots of land was handed over to Monomohan Nath on 24.05.1974. The 2Kathas 16Lechas of land covered by Dag No. 439 which is also Annual Patta land was really being used as passage for going to land under Dag No. 437 and Dag No. 438 purchased by the defendants. The plaintiffs started using the land under Dag No. 439 as passage and ultimately by intervention of the village elders the plaintiffs sold the land to the defendants on 04.06.1992 by a Katcha deed and handed over possession. The RSA No.217 of 2005 Page 3 of 9 plaintiffs thus did not have title and possession over entire schedule B land. The defendants prayed for dismissal of the suit in entirety.
3] Upon consideration of the rival contentions of the parties, the learned trial court framed as many as 9 issues out of which issues No.
(iii), (iv), (v) & (vi) are relevant. All the issues are quoted below:
"i) Whether the suit is barred by law of Limitation?
ii) Whether the suit is barred by provision of estopal?
iii) Whether the plaintiffs have right, title and interest over the suit land?
iv) Whether the defendants dispossessed the plaintiff from B Schedule land described in the plaint?
v) Whether the plaintiffs have right of use and occupation over C schedule land described in the plaint?
vi) Whether the defendants trespassed over C schedule land?
vii) Whether the mutation order passed on 07.07.1992 in favour of the defendants is illegal and inoperative in the eye of law?
viii) Whether the plaintiffs are entitled for a decree as prayed for?
ix) What relief or reliefs the plaintiffs are entitled so?"
4] The plaintiffs examined as many as 5 witnesses where as defendants examined 2 witnesses. Both the sides exhibited documents. After perusal of the affidavits on record and after hearing the parties, the learned Trial Court held that predecessor of the defendants acquired right, title and interest with respect to 1B 2Katha 10Lechas land covered by periodic Dag No. 438 on the basis of registered sale deed No. 5284 of 1974 dated 24.05.1974 as well as 2Katha 1 ½ Lechas land covered by Annual Dag No. 437 on the basis of delivery of possession as the same was sold at a consideration of Rs.80/- only. However, the land measuring 2Katha 16Lechas covered by Annual Dag No.437 was sold at Rs.4,000/- but the deed was not registered and as such no title with respect to the said land was conveyed to the defendants as claimed by them. The suit of the RSA No.217 of 2005 Page 4 of 9 plaintiffs, therefore, was decreed in respect to 2Katha 16lechas of land covered by Dag No.439 included in Schedule C of the land within Schedule B only and the prayer in respect of land covered by Dag No. 437 and Dag No. 438 were refused. The decision of the learned Trial court in respect of Dag No.439 in judgment dated 12.04.2004 was challenged by defendants in Title Appeal No. 18 of 2004 in the Court of learned Civil Judge (Senior Division), Barpeta who by the judgment and decree dated 19.07.2005 dismissed the appeal and upheld the findings of the learned trial court. The aforesaid concurrent findings of the learned court below have been assailed in the present second appeal.
5] This court while admitting the second appeal on 21.11.2005 framed the following substantial questions of law:
"Whether the learned Court below erred in law in not considering the effect of sale of the suit land in favour of the defendant/ appellant on valuable consideration by the plaintiff/ respondent and allowing the suit on the ground that the sale was effected by an unregistered one in respect of the annual patta land?"
6] I have heard Mr. D. Choudhury, learned counsel for the appellant and Mr. MH. Ahmed, learned counsel for the respondents.
7] Mr. D. Choudhury, learned counsel for the appellant would argue that vide Exhibit Kha the plaintiffs received a sum of Rs. 4,000/- from the defendants and handed over the vacant possession of the land covered by Dag No. 439 and with such handing over the plaintiffs relinquished their right, title and interest with respect thereto. This being the position although the deed was not a registered one, the learned trial court ought to have held that the plaintiffs ceased to have title to the suit land. This not having been done the impugned judgment and decree was vitiated. From perusal RSA No.217 of 2005 Page 5 of 9 of the substantial question of law referred to above it would appear that the same is based on the following premises:
i) that a sale deed was executed by the plaintiffs in favour of the defendants;
ii) that there was realisation of valuable consideration from the defendants by the plaintiffs;
iii) that the said sale deed was unregistered one and;
iv) that the effect of the sale vide unregistered sale deed referred to above was not considered by the learned Court below.
8] Having noticed the aforesaid ingredients of substantial question f law, it naturally falls for consideration as to whether these premises both factual and legal do really exist. The pleaded case of the plaintiffs is that without there being any transfer of title the defendants entered into the suit land by deceitful means. First, they got their names illegally mutated in the records of rights on 07.07.1992 and thereafter, by applying force, ousted the plaintiffs from the suit land. In the plaint defendants have been described as trespassers and there was no prayer for adjudging Exhibit Kha sale deed as illegal. It is the defendants who brought on record the fact as to alleged execution of sale deed ( Exhibit Kha). The finding of the learned trial court in regard to execution of the sale deed is relevant in this regard. The learned trial court observed that out of 8 plaintiffs 5 of them allegedly put their hands in Exhibit Kha in the years 1992 and that the alleged execution was not proved as it appears from the cross-examination of the DW2. The learned Trial Court also observed that as per the version of the plaintiffs' witnesses, the defendants forced their entry into the suit land in the year 1992 and that they did not have any right of adverse possession as well. With these findings, the learned Trial court held that the defendants are mere trespassers over the land and the plaintiffs' right over the land continued. It is necessary to mention here that the learned trial court after consideration of evidence in regard to execution of Exhibit Kha RSA No.217 of 2005 Page 6 of 9 held that the same was not proved. It was also held that the sale deed being an unregistered one was not admissible in evidence. In paragraph 14 of the appellant Court judgment, it is observed as follow: "From the evidence of both the parties and from the facts and circumstances of the case it is also found that the appellants/ defendants dispossessed the plaintiffs/ respondents from the B Schedule land and the defendants/ appellants also trespassed over C Schedule land as the land described in B & C of the plaint are a paternal property of the plaintiffs/ respondents and as they have got dispossessed of the property any way to the appellants/ defendants. In such a case, the mutation obtained by the appellants/ defendants is illegal in the eye of law."
9] The learned trial court took note of the fact that the sale deed in question was unregistered one and on the face of the aforesaid observation of the learned Courts below the first substratum of the sole question of law as the execution of the sale deed appears to be non-existent.
10] While the second factual substratum is about payment of consideration, the same automatically becomes volatile when the learned Courts below arrived at finding that the defendants dispossessed the plaintiffs and there was no execution of sale deed. Even keeping the first two factual aspects aside for the time being, the third element construing substantial question of law assumes importance. In the third premises referred to above, the existence of unregistered sale deed is noted. Now what can be the legal effect of an unregistered sale deed is discernible from perusal of Section 47 & 49 of the Indian Registration Act. Section 49 deals with consequence of non-registration of a sale deed which is compulsorily registrible under Section 17 of the Indian Registration Act. Section 49 of the Registration Act is quoted below:
RSA No.217 of 2005 Page 7 of 9"49. Effect of non-registration of documents required to be registered -- No document required by Section 17 [ or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall -
(a) Affect any immovable property comprised therein, or
(b) Confer any power to adopt, or
(c) Be received as evidence of any transaction affecting such property or conferring such power, Unless it has been registered:
Provided that an unregistered documents affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument."
11] It is thus clear that a sale deed which is required by Section 17 of the Registration Act as well as Section 54 of the Transfer of Property Act to be registered and is not registered, it shall not affect immovable property comprised therein and so, no title would be conferred thereby. It also cannot be received in evidence of any transaction affecting the property. By proviso to the said Section use of such document for collateral purpose only has been recognised. Payment of consideration or transfer of title is not collateral purpose in execution of a sale deed. In that view of the matter, the inevitable conclusion that can be drawn on Exhibit-Kha is that it did not involve payment of consideration and it could not affect the title of the property. Having so found all the 4 elements constituting the sole substantial question of law in this case are to be decided against the appellant thereby holding that the substantial question of law does not arise from the facts and circumstances in this case.
12] I have perused the grounds enumerated in memorandum appeal and did not come across any objection in regard to perversity RSA No.217 of 2005 Page 8 of 9 of findings of the learned Courts below. There is no objection in regard to correctness or otherwise of findings of the learned Courts below as to dispossession of the plaintiffs from the suit land. This being the position and there being no allegation of perversity, the High Court sitting in Second Appeal cannot interfere with concurrent findings of the learned Courts below.
13] This second appeal, therefore, has no merit. It is accordingly dismissed.
14] No order as to cost.
JUDGE
sumita
RSA No.217 of 2005 Page 9 of 9