Chattisgarh High Court
Daulatram @ Karru vs Tikam Prasad 137 Sa/61/2002 Smt. ... on 8 October, 2018
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
FA No. 41 of 2002
1. Daulatram @ Karru S/o Mohan, Aged About 39 Years Occupation- Agriculture
2. Dukhulal S/o Mohan, Aged About 37 Years
3. Dhansai S/o Mohan Dewangan, Aged About 34 Years
4. Amritlal S/o Mohan Dewangan, Aged About 31 Years
All resident of Village- Murra, Tah. Kharsia, Distt. Raigarh,
Chhattisgarh ..............Defendant No. 1 To 4
----Appellants
Versus
1. Tikam Prasad S/o Tilakram, Aged About 44 Years Occupation- Agriculture, R/o
Village- Murra, Tah. Kharsia, Distt. Raigarh, Chhattisgarh ...............Plaintiff,
Chhattisgarh
2. Firatram S/o Kartik Das Dewangan, Aged About 38 Years
3. Badibai W/o Firatram, Aged About 32 Years
Both R/o Village- Rahod, Tah. Pamgarh, Distt. Bilaspur, Chhattisgarh ...............
---- Respondents
For Appellants : Shri Ravish Verma, Advocate
For Respondent No.1 : Ms. Hamida Siddiqui, Advocate
For Respondents No.2 & 3 : Shri Om Prakash Agrawal, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Order On Board
08/10/2018
1. Heard.
2. The present appeal is against the judgment and decree dated 18.01.2002 passed by the First Additional District Judge, Raigarh in a Civil Suit No.8-A/95, 2 whereby a decree for possession has been passed in favour of the plaintiff and it was declared that the plaintiff is the owner of the 1/3rd share of the suit property.
3. A civil suit was filed by one Tikam Prasad, the respondent No.1 herein S/o Tilakram for declaration that the plaintiff has the right over the suit property further claim was for declaration that the sale deed dated 23.01.1992 is null and void and defendants No.1 to 4 did not acquire any right or title over the property by virtue of such sale deed. The suit property is described in Schedule - A of the plaint. To understand the relation in between the parties a genealogical tree of the parties is shown hereinunder:-
Sukhram Khushiram Tilakram Mohanlal Tikam (son) plaintiff Badi Bai D-6(Daughter) Husband Firatram (D-5) Daulatram(D-1) Dukhlal (D-2) Ghanshyam (D-3) Amritlal (D-4)
4. According to the plaint averments, Tikam Prasad S/o Tilakram averred that Sukhram had ancestral property at village Mura, tehsil Sarangarh, district Raigarh. The property held by the Sukhram was the agricultural land admeasuring 2 acres and 32 decimal and a house. Initially the partition took place in between the Khushiram, Tilak Ram and Mohanlal. Khushiram being 3 the elder son got the house whereas the other two brothers Tilakram and Mohan Lal got the land, wherein both of them raised superstructure. It was alleged that during the passage of time two houses were constructed by Tilakram. One of the house was given to Tikam Prasad, the plaintiff, whereas another house was kept by himself. It was further pleaded that the plaintiff was the occupant in the suit house till 1991 and was in possession up till 23.01.1992.
5. It was further stated that defendants No.6 Badi Bai, the sister of plaintiff along with her husband Firat Ram, defendant No.5 executed the sale deed dated 23.01.1992 in favour of Defendant No.1 to 4 despite the fact that they do not have absolute right to sell the property. It was stated that a house was valued to Rs.21000/- whereas the cost of the house was much higher. The plaintiff further pleaded that Badi Bai, the sister of the plaintiff and her husband Firat Ram (defendants No.6 & 5) earlier also tried to alienate the property of Tilakram, their father, which led to a civil suit, wherein they were injuncted to execute the further sale. The plaintiff further pleaded that the sale deed which was executed by defendants No.5 &6 by an instrument dated 23.01.1992 is null and void and prayer was made that the declaration be passed that by virtue of the sale deed defendants No. 1 to 4 did not get any right over the property. It was further stated that on 24.01.1992 the plaintiff though was in possession of the suit house was forcefully evicted and as such is required to get back the possession from defendants No. 1 to 4. The plaintiff further pleaded that therefore, the prayer was made that the sale deed dated 23.01.1992 be declared null and void and possession of the suit house be given to him. 4
6. In reply to the plaint allegation, defendants No. 1 to 4, the purchaser of the suit property filed their written statement. The defendant No.5 & 6, the seller of the suit property filed their separate written statement, likewise the mother of the plaintiff Heeramati, defendant No.7 filed separate written statement. The common plea which was taken by the defendant that Tilakram, the father of the plaintiff had two houses one house was given to the plaintiff Tikam Prasad and in one house he was living himself. It was stated that by a document dated 01.04.1991 for a sale consideration of Rs.1500/- the said house i.e. the suit house was given to defendants No.5 & 6 and the possession of the house was also given. Subsequently, it was further pleaded that by such indenture of transfer dated 01.04.1991 Badi Bai, the sister of plaintiff and her husband Firat Ram being owner of the suit house have executed the sale in favour of Defendants No.1 to 4 who were the cousin brothers of the plaintiff as also Badi Bai defendant No.6. The mother of the plaintiff namely Heeramati, defendant No.7, filed her written statement in that the plaint averments were denied and it was stated that by the indenture of transfer dated 01.04.1991, the possession of the suit property was given to defendants No.5 & 6, the daughter and son-in- law. Further plea was taken that the suit was filed by the plaintiff after the death of Tilakram and therefore, the plaintiff cannot claim his exclusive right over the property.
7. On the basis of the pleading learned Court below has framed 12 issues and decreed the suit and held that defendants No.1 to 4 do not get any right by the sale deed dated 23.01.1992 and as such the right of the defendant No. 1 to 4 over the suit property would be that of rank trespasser and decreed the suit. The Court further held that the defendant No.6, the sister of the plaintiff and 5 defendant No.7 the mother of the plaintiff since have not claimed right over the property as such the plaintiff as per the averment would be entitled to get possession of the suit property. The Court further observed that the plaintiff was a co-sharer of the suit house to the extent of 1/3rd share. Being aggrieved by such judgment and decree the purchaser of the property namely Daulatram, defendant No.1, Dukhu Lal, defendant No.2, Dhansai, defendant No.3 and Amrit Lal, defendant No.4 have preferred this first appeal. The memo of first appeal would reflect that during the pendency of this appeal, Heeramati, the mother of the plaintiff the wife of Tilakram expired as such her name was deleted from the memo of appeal.
8. Learned counsel for the appellants would submit that in the written statement it was stated that Tilakram, the father of the plaintiff had executed an indenture on 01.04.1991 and that indenture has not been questioned by the plaintiff, therefore, it would become absolute. It is further pleaded that no decree of possession could have been granted, though it was given to the plaintiff contrary to the prayer made. It is further submitted that the facts would reveal that Badi Bai and her husband Firatram, acquired the title by such deed dated 01.04.1991 to which the plaintiff has not objected, therefore, the same cannot be questioned in a civil suit. He placed his reliance in the case of Muddasani Venkata Narsaiah (D) Th. Lrs. V. Muddasani Sarojana {AIR 2016 SC 2250} and submits that though the sale deed dated 23.01.1992 was set aside but the plaintiff being a third party cannot question the sale deed and the consideration which has passed under it. He further placed reliance in the case of Bachchaj Nahar V. Nilima Mandal & ors. {AIR 2009 SC 1103} and stated that in respect of the deed 01.04.1991 no averments have been made as such the pleading to 6 negate the same cannot be considered and the decree for possession could not have been given for the entire property.
9. Per contra, learned counsel for respondent No.1 Tikam Prasad, the plaintiff, would submit that during the course of hearing in the civil suit, the document dated 01.04.1991 came to fore, consequently, if such document do not convey the title for want of registration under Section 49 of the Indian Registration Act, the seller do not get any right to convey it further. Reliance was placed in the case of K. Ramamoorthi V. C. Surendranatha Reddy (2012 SCC Online AP
125), Bondar Singh and others Versus Nihal Singh and others {(2003) 4 SCC 161} and in the case of Lal Kumar Patel and Others Versus Bansal Infratel and Company Partnership Firm, Chhattisgarh and oters {2017 Law Suit (Chh) 1161}.
10. Learned counsel for the defendants Badi Bai and Firat Ram, would submit that the suit was filed during the lifetime of Tilakram and therefore the suit was not tenable. It was further stated that the suit for partition could have been brought but having not been brought, the suit was required to be dismissed.
11. Heard learned counsel for the respective parties and perused the documents.
12. The plaintiff had pleaded for cancellation of sale deed dated 23.01.1992, which is marked as Ex. D-1. Ex. D-1 is a registered sale deed purported to have been executed by Firat Ram and Badi Bai in favour of Daulatram, Dukhulal, Dhan Sai and Amritlal. The particulars of the property is shown in the said deed. The source of acquisition of such property by Firatram and Badi Bai is based on Ex. D-2.
7
13. Daulatram (DW-1) has deposed that the suit house for which the claim is made was in possession of Tilakram, wherein he was living. It was stated that Tilakram had executed a sale deed in favour of her daughter Badi Bai and son- in-law Firat Ram for an amount of Rs.15000/- and the possession was given. The plaint allegation would show that the cancellation of sale deed dated 23.01.1992 was claimed along with possession. It was the defendant who came out with a defense that by virtue of deed dated 01.04.1991 they acquired the title and possession of property. The said document is marked as Ex. D-2. Apparently, Ex. D-2 is not a registered document by which the property was conveyed in favour of Badi Bai and Firatram i.e. the daughter and son-in-law.
14. The Supreme Court in the case of M/s. K.B. Saha and sons Pvt. Ltd. Vs. M/s. Development Consultant Ltd. {AIR 2008 SC (Supp) 850} and further in the case of K. Ramamoorthi V. C. Surendranatha Reddy (2012 SCC Online AP
125) has laid down that unregistered document requires registration under the law would not be admissible in the evidence. Admittedly, in this case, the value of the property was more than 100 Rs., as such as per Section 17 b of the Indian Registration Act which mandates that in order to convey the property the document requires to be registered otherwise it would not be admissible in evidence. The Supreme Court has laid down the following principles in respect of admissibility of such document which are as under :-
i) A document, which is compulsorily registrable, but not registered, cannot be received as evidence of any transaction affecting such property or conferring such power. The phrase "affecting the immovable property" needs to be understood in the light of the provisions of Section 17(b) of the Registration Act, which would mean that any instrument which creates, declares, assigns, limits or extinguishes a right to immovable property, affects the immovable property.8
ii) The restriction imposed under Section 49 of the Registration Act is confined to the use of the document to affect the immovable property and to use the document as evidence of a transaction affecting the immovable property.
iii) If the object in putting the document in evidence does not fall within the two purposes mentioned in (ii) supra, the document cannot be excluded from evidence altogether.
iv) A collateral transaction must be independent of or divisible from a transaction to affect the property i.e., a transaction creating any right, title or interest in the immovable property of the value of rupees hundred and upwards.
v) The phrase "collateral purpose" is with reference to the transaction and not to the relief claimed in the suit.
vi) The proviso to Section 49 of the Registration Act does not speak of collateral purpose but of collateral transaction i.e., one collateral to the transaction affecting immovable property by reason of which registration is necessary, rather than one collateral to the document.
vii) Whether a transaction is collateral or not needs to be decided on the nature, purpose and recitals of the document.
15. In the instant case, initially the suit property of more than value of Rs.100 was conveyed by virtue of unregistered document in favour of Badi Bai and Firat Ram and thereafter the sale deed dated 23.01.1992 was executed by them. The relation of the parties i.e. Tikam Prasad is admittedly to be the brother of Badi Bai and property was sold only by Badi Bai along with her husband Firatram. The source of acquisition on the basis of Ex. D-2 being unregistered, therefore, cannot confer any title to Firatram and Badi Bai exclusively by excluding Tikam Prasad, who was son of Tilakram. Heeramati, defendant No.7, the mother of Tikam Prasad and Badi Bai breathed her last during the pendency of this appeal as such their right has further devolved on the surviving heirs. During life time of Heeramati, in her defense, she came out with a defense that suit was brought after death of Tilakram do not anyway suggest for dismissal of suit.
9
16. Therefore, after entire scrutiny of the evidence, the defense which is passed by Badi Bai and Firat Ram and the source of their acquisition that itself was defective as the chain of title with the nucleus thereof based on unregistered document for a property valued more than 100 rupees, consequently, they cannot pass a better title to the purchaser and as such the appellant/defendants who subsequently purchased the property by the sale deed dated 23.01.1992 do not acquire any right or title in the property. As such, I do not find any reason to interfere with the order and judgment and decree. In a result, the appeal has no merit. It is accordingly dismissed.
Sd/-
Goutam Bhaduri Judge Ashu