Allahabad High Court
Jasvinder Singh vs Angrej Singh on 31 July, 2023
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:152783 Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 5496 of 2023 Petitioner :- Jasvinder Singh Respondent :- Angrej Singh Counsel for Petitioner :- Pavan Kumar,Ram Dayal Tiwari,Sr. Advocate Counsel for Respondent :- Rajiv Sharma,Abhishek Sharma Hon'ble Jayant Banerji,J.
1. Heard Shri M.D. Singh Shekhar, learned Senior Advocate assisted by Shri Pavan Kumar, learned counsel for the petitioner and Shri Rajiv Sharma, learned counsel appearing for the sole-respondent.
2. This petition has been filed with the following prayer:
"(a) issue an order and to set-aside the order passed by District Judge, Bijnor dated 15.4.2023 (Annexure No. 10 to the petition).
(b) issue an order summoning the record of the Trial Court.
(c) to pass such other and further order as Hon'ble Court may deem fit and proper under the circumstances of the case."
3. The plaintiff-petitioner filed Original Suit No. 163 of 2022 against the defendant-respondent seeking injunction in respect of the property in dispute, which, it is alleged, was agreed to be sold by the defendant-respondent pursuant to an unregistered deed of sale dated 28.8.2013. It is contended that an amendment application was filed subsequently to amend the plaint and the amendment was allowed in which an additional relief regarding mandatory injunction was also prayed. It is stated that an application for temporary injunction was filed by the petitioner in which an order of status quo was passed by the trial court. It is stated that the defendant-respondent then filed Misc. Civil Appeal No. 11 of 2023 which came to be allowed by means of the impugned judgment and order dated 15.4.2023, whereby, the order of the trial court was set aside. The contention is that an amount of more than Rs. 80 Lacs was advanced by means of the agreement to sell and the appellate court had misdirected itself in setting aside the order of the trial court inasmuch an innocuous order of status quo was passed by the trial court which ought not to have been interfered with. It is further stated that given the provision of Section 164 of the U.P. Zamindari Abolition and Land Reforms Act, 19501 the aforesaid agreement to sell would deemed to be a sale. In support of his contention, learned counsel for the petitioner has relied upon a judgment of the Supreme Court in the case of Smt. Rama Devi Vs. Dilip Singh2.
4. Learned counsel for the defendant-respondent has opposed the petition and has pointed out that the agreement to sell is an unregistered document and the recorded tenure holder was the defendant-respondent and therefore, no temporary injunction could be granted, and that the appellate court was justified in allowing the appeal and setting aside the order of the trial court.
5. I have considered the rival submissions of the parties.
6. Annexure No. 1 of this petition is a photocopy of the document that purports to be an agreement to sell which, it is admitted to the parties, is unregistered. The date of execution, in which there is interpolation, appears to be 28.8.2013. A perusal of the deed clearly reflects that it is an agreement to sell in respect of which amounts of money were allegedly transferred by the plaintiff-petitioner to the defendant-respondent as advance.
7. The plaint has been enclosed as Annexure No. 2 which reflects that it is a suit for injunction. It is pertinent to mention here that the amendments, if any, do not appear to have been incorporated in the copy of the plaint that has been filed as Annexure No. 2 to the petition. It is admitted by the parties that plot in dispute is agricultural land. By the order dated 28.2.2023, the trial court has directed that the defendants or their representative be restrained from interfering in the peaceful possession of the plaintiff and shall not create any third party rights. Therefore, it is not an order of status quo as stated by the learned counsel for the petitioner. The defendant-respondent then filed the aforesaid appeal that came to be allowed by the impugned judgment and order of the District Judge, Bijnor dated 15.4.2023. The District Judge has observed that the alleged agreement to sell is not a registered document but an unregistered one, on the basis of which no right would accrue to the plaintiff. It was noticed that the document did not contain the signature of both parties on the first page whereas signatures were available on other pages. It was noticed that the defendant-respondent was recorded as the tenure holder with regard to the property in dispute. It was observed that no injunction can be granted against a recorded tenure holder. Accordingly, the appeal was allowed and the order of the trial court of 28.2.2023 was set aside.
8. A perusal of the plaint reveals that no case was set by the plaintiff with reference to Section 164 of the Act, 1950. For the first time in this petition in paragraph 26, a case has been set up that since possession was transferred by agreement to sell dated 28.8.2013, it would be deemed to be a sale under Section 164 of the Act, 1950. A perusal of the plaint or of this petition, however, reveals that no case has been set up by the plaintiff-petitioner that the possession was transferred for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
9. Section 164 of the Act, 1950 reads as under:
"164. Transfer with possession by a bhumidhar to be deemed a sale.- Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purpose of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Sections 154 and 163 shall apply."
10. Learned counsel for the petitioner has referred to paragraph 9 of the aforesaid judgment of the Supreme Court in Smt. Rama Devi (supra). It is pertinent to mention that the suit in respect of which the Supreme Court had passed the aforesaid judgment was for seeking a relief for decree of redemption of conditional mortgaged in respect of the property in dispute therein and ancillary relief of permanent injunction was claimed. It was observed by the Supreme Court as under:
"9. We have considered the arguments advanced by the learned Counsel for the parties. A bare perusal of section 155 would reveal that it would apply to a mortgage where the possession of land has been transferred or is agreed to be transferred in the future as security for the money advanced or to be advanced and it is such a transaction which is held to be void under section 166. Section 164 however talks about transfer of a holding or part thereof made by a bhumidhar by which possession has been transferred for the purpose of securing any payment of money etc. and it says that notwithstanding anything contained in the document of transfer or any law for the time being in force, such a transaction would be deemed to be a sale to the transferee and to every such sale the provisions of section 155 and section 166 would not apply. We find that the respondent's stand is supported by the judgments that have been cited. In Bhagwatia's case (supra), the petitioner's husband executed a usufructuary mortgage deed and possession had also been transferred to the mortgagee for securing re-payment of the loan. The learned Judge held that this mortgage would be deemed to a sale under section 164 of the Act. While dealing with an identical situation and to Section 164 this is what the learned Single Judge had to say:
"It is apparent from the aforesaid section that the usufructuary mortgage of Bhumidhari land, where possession is transferred as security for payment of loan, would be covered by the provisions of section 164 and notwithstanding anything contained in the document of transfer or any law for the time being in force, it would be deemed to be sale to the transferee itself. It, therefore, follows that the covenant contained in the usufructuary mortgage deed in question that the mortgagor would be entitled to redeem, the property by making payment of loan and within a period of three years is of no consequence as the transfer by way of usufructuary mortgage in question would, be deemed to be sale under section 164 of the U.P. Zamindari Abolition and Land Reforms Act.
In the aforesaid case the question regarding legal status of the person who was put in possession in lieu of the interest was considered in the light of provisions of the U.P. Tenancy Act which was then in force when the possession was transferred to the creditor and his possession was considered to be on behalf of the owner himself. In the above mentioned case the interpretation of the section 164 of the U.P. Zamindari Abolition and Land Reforms Act was not involved nor was it dealt with. The provisions of section 164 of the said Act were not attracted to the facts of the aforesaid case. The aforesaid case is thus clearly distinguishable and is not applicable to the facts of the present case, where the question is involved is whether usufructuary mortgage would or would not be deemed to be a sale as provided under section164 of the said Act.
Under section 164 of the U.P. Zamindari Abolition and Land Reforms Act it is provided that such a transaction would be deemed at all times and for all purposes to be sale to the transferee. It thus follows that it would be deemed to be sale from the very inception i.e. from the date of execution of the usufructuary mortgage and transfer of possession in pursuance thereof to the mortgagee. The provisions of section 60 of the Transfer of Property Act would, therefore, not be applicable to such mortgage and the mortgager will have no right to redeem the mortgage and to claim possession from the mortgagee by offering to make payment of loan amount. The aforesaid statutory right of redemption as provided under section 60 of the Transfer of Property Act would not be available to the mortgager Bhumidhar in view of the provisions of section 164 of the U.P. Zamindari Abolition and Land Reforms Act according to which for all times and for all purposes it would be deemed sale to the transferee. If the transfer amounts to sale by legal fiction under the aforesaid deeming provision, the transferor would be left with no right to redeem the property in question. The provisions with regard to the rights of mortgagor and mortgagee contained in the Chapter IV of the Transfer of Property Act would not apply to such mortgages which are hit by the provisions of section 164 of the U.P. Zamindri Abolition and Land Reforms Act.
A deeming provision in a statute postulates that a thing deemed to be something else is not, in fact, the thing which it is deemed to be something else, it is to be treated as if it is that thing, though in fact it is not."
11. It is apparent that the judgment in the case of Rama Devi is based on its own facts and the suit in that case was filed for a decree for redemption of mortgage. In the present case, the suit is only for permanent injunction or perhaps, as pointed out by the learned counsel for the petitioner, for an additional relief for mandatory injunction.
12. Under the facts and circumstances, on the basis of unregistered document that purports to be an agreement to sell, the order of the trial court dated 28.2.2023 could not have been passed also given the fact that the defendant-respondent was a recorded tenure holder. The order of the appellate court, in the facts and circumstances of the present case is justified and no interference is called in this petition.
13. This petition is, therefore, dismissed.
Order Date :- 31.7.2023 A. V. Singh (Jayant Banerji, J.)