Chattisgarh High Court
Janakram vs Tejram on 12 May, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 19
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 14-3-2022
Delivered on 12-5-2022
SA No. 7 of 2021
1. Janakram s/o. Parmanand Aged About 50 Years R/o Pusour
Tahsil- Pusour District- Raigarh, Chhattisgarh,
2. Jagdish S/o Parmanand Aged About 36 Years R/o Pusour, Tahsil-
Pusour, District- Raigarh, Chhattisgarh, District : Raigarh,
Chhattisgarh
3. Budhani D/o Parmanand, Aged About 62 Years R/o Pusour,
Tahsil- Pusour, District- Raigarh, Chhattisgarh,
4. Sheela D/o Parmanand Aged About 40 Years R/o Pusour, Tahsil-
Pusour, District- Raigarh, Chhattisgarh, District : Raigarh,
Chhattisgarh
5. Mandar W/o Janak Aged About 32 Years D/o Parmanand, R/o
Pusour, Tahsil- Pusour, District- Raigarh, Chhattisgarh,
6. Kumar D/o Jagdish Aged About 32 Years R/o Pusour, Tahsil-
Pusour, District- Raigarh, Chhattisgarh,
---- Appellants.
Versus
1. Tejram S/o Late Diwakar Aged About 40 Years R/o Pusour,
Tahsil- Pusour, District- Raigarh, Chhattisgarh,
2. Smt. Sulochana D/o Late Diwakar Aged About 48 Years W/o
Safed, R/o- Tarajangha, (Bhhathli) Tahsil And District Raigarh,
Chhattisgarh, District : Raigarh, Chhattisgarh
3. Smt. Gauri D/o Late Diwakar W/o Gangadhar, R/o - Banjhipali
District Rargarh, (Oddissa), District : Bargarh *, Orissa
4. Smt. Annapurna Wd/o Diwakar R/o Village -Pusour, Tahsil-
Pusour, District- Raigarh, Chhattisgarh,
5. State Of Chhattisgarh Through Collector Raigarh, District
Raigarh, Chhattisgarh (Defendatn No. -7),
---- Respondents
SA No. 6 of 2021
1. Janakram S/o Parmanand Aged About 50 Years Resident Of
Pusour Tahsil Pusour District Raigarh Chhattisgarh.,
2. Jagdish S/o Parmanand Aged About 36 Years Resident Of Pusour
Tahsil Pusour District Raigarh Chhattisgarh.,
3. Budhni W/o Parmanand Aged About 62 Years Resident Of
Pusour Tahsil Pusour District Raigarh Chhattisgarh.,
4. Sheela D/o Parmanand Aged About 40 Years Resident Of Pusour
Tahsil Pusour District Raigarh Chhattisgarh.,
5. Mandar W/o Janak Aged About 45 Years Resident Of Pusour
Tahsil Pusour District Raigarh Chhattisgarh.,
Page 2 of 19
6. Kumari W/o Jagdish Aged About 32 Years Resident Of Pusour
Tahsil Pusour District Raigarh Chhattisgarh.,
---- Appellants.
Versus
1. Sardhakar S/o Sarang Aged About 65 Years Occupation
Agriculture, Caste Saura, Residence Of Village Pusour, Tahsil
Pusour District Raigarh Chhattisgarh.,
2. State Of Chhattisgarh Through Collector Raigarh District
Raigarh Chhattisgarh.,
---- Respondents
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For Appellants : Mr. Vineet Kumar Pandey, Advocate.
For respondent/State. : Mr. Sanjeev K. Agrawal, Panel Lawyer.
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Hon'ble Shri Justice Narendra Kumar Vyas
CAV JUDGMENT
1. Since the identical issue involves in both the appeals, they are heard analogously and are being disposed of by this common judgment.
2. The appellants/defendants have filed the instant Second Appeal No. 6 of 2021 against the judgment and decree dated 19-11-2020 passed by the learned 5th Additional District Judge, Raigarh District Raigarh in Regular Civil Appeal No. 28 of 2019 affirming the judgment and decree dated 25-2-2019 passed by the learned 2 nd Civil Judge, Class -1, Raigarh, District Raigarh, in Civil Suit No. 65- A/2014 whereby the suit filed by the appellants for declaration and possession has been dismissed.
3. The appellants/defendants have filed the instant Second Appeal No. 7 of 2021 against the judgment and decree dated 19-11-2020 passed by the learned 5th Additional District Judge, Raigarh District Raigarh in Regular Civil Appeal No. 27 of 2019 affirming the judgment and decree dated 25-2-2019 passed by the learned 2nd Civil Judge, Class -1, Raigarh, District Raigarh, in Civil Suit No. 64- Page 3 of 19 A/2014 whereby the suit filed by the plaintiff allowed and counter claim filed by the defendants has been dismissed..
4. The parties names have been referred to as per their status mentioned in civil suit filed before the court below.
5. The brief facts as reflected from the record of SA No. 6 of 2021 are that the plaintiffs have filed a civil suit mainly contending that they are title holder and in possession of the suit property situated at village Pusour, Patwari Halka No. 37 Tahsil Pusour, District Raigarh, bearing Khasra No. 970/1 area 0.008 hectares mentioned in Schedule-A of the plaint. The defendants No. 1 to 6 illegally encroached the said suit land on 1-2-2014 and started digging the plinth. The plaintiffs have made an attempt to restrain them by saying that this land belongs to the plaintiffs and they should not encroach the said property. The plaintiffs advised them to go for demarcation and till then no construction should be carried out, but they did not heed the request made by the plaintiffs, therefore, the plaintiffs have moved an application for demarcation of the suit property wherein Tahsildar, Pusour sought the report from Patwari and in pursuance thereof, Patwari has submitted his report on 20-4- 2014 wherein it has been held that the plaintiffs are the title owners and are in possession of the suit property. Despite demarcation report of the Patwari, the defendants illegally possessed the suit property, therefore, the plaintiffs have filed the suit for dispossessing the suit property from the defendants and also prayed that declaration be granted that plaintiff is title holder of land bearing khasra no. 970/1 area .008 hectare situated at village Pusor, P.H. No. 37,Revenue circle Pusor, Tahsil Pusor, District Raigarh and possession of the suit property from defendants be also granted to the plaintiff.
6. The defendants have filed their written statement denying the allegations made in the plaint mainly contending that the house in the disputed property has been constructed by their ancestors prior to 40- 50 years. It has also been contended that their ancestors have exchanged their property bearing Khasra No 1053 area 0.101 Page 4 of 19 hectares with the suit property. The plaintiff has constructed the pond and said pond has been taken over by the Government. The plaintiffs and the defendants have not made corrections in the revenue records. By concealing this fact the plaintiff intends to get the decree in his favour. It has also been contended that the suit filed by the plaintiff is time barred and prayed for dismissal of the suit.
7. In Second Appeal No. 7 of 2021, the plaintiff has filed a suit for declaration of title and possession of the suit property bearing Khasra No. 970/2 area 0.008 hectares, Patwari Halkam No. 37, Dist. Raigarh, reiterating the same facts which have been mentioned in the earlier suit and prayed for declaration that the plaintiff is the title holder of the land bearing khasra Ho. 970/2 area 0.008 hectares Patwari Halka No. 37 situated at village Pusor. It has also been declared that plaintiff be granted possession of the suit property from the defendants.
8. The defendants have field their written statement reiterating their stand taken by them in the written statement filed before the trial court in earlier civil suit No. 64-A/2014.
9. The plaintiff to substantiate his stand has examined the documents i.e., order sheet of Revenue Case as Ex.P/1, Plaintiff himself examined as PW-1, Madhuvishal (PW-2). The defendant examined three witnesses; Janak Ram (DW-1) and Nandlal (DW-2) and Dharamjeet Painkara (DW-3) and exhibited documents i.e., receipt given by Nagar Panchayat Pusour Ex.D/1 to Ex.D-3, Ration Card Ex.D-4, certificate given by Nagar Panchayat, Ex.D-5, Electricity Bill Ex.D-6, certificate given by the Junior Engineer Ex.D-7, certificate given by councilor Ex D-8, Panchnama Ex.D-9. Similar documents were also exhibited in other civil suit No.64-A/2014.
10. The plaintiff by way of his affidavit under Order 18 Rule 4 of CPC has reiterated the stand taken by him in the plaint. He was cross examined by the defendants wherein he has admitted that he is not aware whether the disputed property has been exchanged with pond land by the ancestors of plaintiff and defendant. He is also not Page 5 of 19 aware that exchanges were taken prior to 50 - 60 years. He has also denied about exchange of suit property. He has denied about exchange of the suit property. This witness was examined wherein he has stated that the facts have been brought on record that he has done demarcation in the year 2014 for that he has moved an application before Tahsildar, Pusour in the month of February and considering the application the demarcation was carried out in the month of March or April. He has denied that the land belongs to his ancestors. He has denied the fact that his ancestors have exchanged the property. He also denied that because of exchange records could not be recorded. He has also denied that his elder son namely Vishal is residing in the wall of pond. He has also denied that on the report, Revenue Inspector has mentioned about exchange of suit property.
11. The witness Madhuvishal has also examined who has stated that the despite objection being raised by the plaintiff, the defendants started digging the wall. This witness was cross examined by the defendants. This witness has stated that the defendants were digging the plinth of Janak Ram Sahu when Diwakar has called upon him. He denied that in the year 2014 no digging of the plinth was done. The defendants have examined Janak Ram Saunra as DW/1. In the evidence by way of affidavit, the defendant reiterated the stand which he has taken in the written statement, but in the cross examination he has denied that there was no exchange of suit property between the ancestors of plaintiff and defendants, but no documentary evidence was produced by him.
12. DW/2 Nandlal in his examination-in-chief by way of an affidavit has supported the case of the defendants and he was cross-examined by the plaintiff wherein he has admitted that which Khasra number and how much area has been given to Sardakar on exchange, he is not aware but he denied that there was no exchange of land with Sardakar.
13. DW/3 Dharmjeet Paikara, who has retired from the post of Revenue Inspector, has admitted in his cross examination that he has not Page 6 of 19 seen any document with regard to exchange of land bearing Khasra No. 970/2 area 0.008 hectares between the plaintiff and the defendant. In the other suit also which is arising out Civil Suit No. 64-A//2014, same evidence has been brought on record by the parties, therefore, to avoid repetition it has not been produced.
14. Learned trial Court after appreciating the evidence, material on record has allowed the suit filed by the plaintiff. Learned trial court while examining the evidence, material on record, has given its finding that the defendants have not rebutted the evidence adduced by the plaintiff and there is no documentary evidence brought on record with regard to exchange of the suit property. It has also been recorded that the exchange of property cannot be proved in absence of proper documentary evidence, merely on the basis of oral evidence, exchange cannot be legally established and accordingly issue Nos. 1 and 2 have been decided in favour of plaintiff. Learned trial court while deciding issue No.3 has also recorded its finding that defendants by holding illegal possession over the suit property, therefore, theory of adverse possession is also not established. The defendants have not produced by documentary evidence to establish that they are in lawful possession of the suit property, therefore, the plaintiff is entitled to get possession of the suit property from the defendants No. 1 to 6. Accordingly, issue No.3 has been decided in favouir of the plaintiff.
15. In similar Civil Suit No. 64-A/2014 which is related to land bearing Khasra No 970/2 area .008 hecatre, learned trial court has passed the judgment and decree. The defendants have filed appeals which were registered as Civil Appeals No.27 of 2019 and 28/2019 respectively. Learned 5th Additional District Judge, vide its judgment and decree dated 19-11-2020 has dismissed the appeals filed by the defendants. Learned trial court while dismissing the appeals has recorded a finding that the plaintiff by evidence has proved his case but the defendants have not produced any documentary evidence to rebut the evidence adduced by the plaintiff more particularly with regard to defence taken by them that suit property has been Page 7 of 19 exchanged as such learned trial court has passed the judgment and decree after appreciating the evidence, material on record which does not suffer from any perversity or illegality warranting any interference. It has also been recorded by the learned trial court that the defendants have taken defence that the suit property has been exchanged between the ancestors of the plaintiffs and the defendants, therefore, this contention is required to be proved by the defendants by cogent evidence. From the record, it is quite clear that no document with regard to exchange of property has been produced accordingly rejected both the appeals. In other appeal I.e, Civil Appeal No. 28 of 2019 the learned trial court has given the same finding. Being aggrieved by both the judgments and decrees, the defendants have preferred the instant second appeals before this court. Both the appeals were listed for admission.
16. Mr. Vineet Kumar Pandey, learned counsel for the appellants would submit that the finding recorded by the learned trial court is perverse, contrary to the evidence, material on record and has also not considered the provisions of Transfer of Property, legal provisions and has passed the erroneous finding which suffers from perversity and illegality. Since substantial question of law is to be framed, it has to be admitted by this court.
17. I have heard learned counsel for the parties and perused the records of both the courts below.
18. From the record, it is not in dispute that the suit property is recorded in the name of the plaintiff in revenue records and the defendants have not produced any documents to rebut recording the name of the plaintiff in the revenue records. The defendants have taken a specific plea that the suit property was exchanged between the ancestors of the plaintiffs and defendants, therefore, they have to prove by adducing the documentary evidence. As per Section 118 of the Transfer of Property Act, 1958, exchange of immovable property cannot be done without any document.
Page 8 of 1919. At this stage, this court deems it fit to take note of Section 118 of the Transfer of Property Act, 1882 and Sections 17 and 49 of the Registration Act, which are extracted below.
118. "Exchange" defnedd--When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange". A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
17. Documents of which registration is compulsory.-
(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and Page 9 of 19
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
1[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the 2[State Government] may, by order published in the 3[Ofcial Gazette], exempt from the operation of this subsection any lease executed in any district, or part of a District, the terms granted by which do not exceed fve years and the annual rents reserved by which do not exceed ffty rupees. 4 [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no efect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section
(l) applies to- (i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or Page 10 of 19
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security aforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the beneft of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) 5[any document other than the documents specifed in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court 1 [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-
matter of the suit or proceeding]; or
(vii) any grant of immovable property by 2[Government]; or
(viii) any instrument of partition made by a Revenue-Ofcer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument Page 11 of 19 for securing the repayment of a loan made under that Act; or 3[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or \(xii) any certifcate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Ofcer.
\4[Explanation.-A document purporting or operating to efect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. ... ... ... ... ..."
Section 49 of the Registration Act, 1908 reads as under:-
"49. Efect of non-registration of documents required to be registered.-No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-
(a) afect any immovable property comprised therein, or (b) confer any power to adopt, or (c) Page 12 of 19 be received as evidence of any transaction afecting such property or conferring such power, unless it has been registered:
1[Provided that an unregistered document afecting 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 specifc performance under Chapter II of the Specifc Relief Act, 1877 (3 of 1877) 2,3 [***] or as evidence of any collateral transaction not required to be efected by registered instrument.]... ... ... ..."
20. As per Section 17 of the aforesaid Act, any document or instrument, which purports or intends to create title should be registered and in case same is not registered, it would not affect any immovable property comprised therein or moreover it could not be allowed as evidence of, any transaction affecting such property. Hon'ble Supreme Court in M/s. Suraj Lamp and Industries Private Limited through Director vs. State of Haryana and another 1 has held in paras 15, 16, 17 and 18 which are extracted below:
"15. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.
16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100 and upwards to or in immovable property. 1 (2009)7 SCC 363 Page 13 of 19
17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, afect any immovable property comprised therein or received as evidence of any transaction afected such property, unless it has been registered.
Registration of a document gives notice to the world that such a document has been executed.
18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, afecting that property. In other words, it enables people to fnd out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confdence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be afected and secure extracts/copies duly certifed.
21. Perusal of the aforesaid law having been laid by Hon'ble Supreme Court clearly suggests that title of immovable property having value of more than Rs.100/- can only be transferred by registered documents, as provided under Section 17 of the Registration Act.Page 14 of 19
Similarly, it also emerges from the aforesaid judgment that no document as required by Section 17 to be registered shall affect any immovable property comprised therein or received as evidence of any transaction affected such property unless it is registered.
22. Again, Hon'ble Supreme Court in case of SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited 2, has held in para which is extracted below:
"11. Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered document (which is compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to section 49 of the Registration Act."
23. The exchange of property is governed by Section 118 of the Transfer of Property Act, 1882 which provides that there is no difference between exchange and sale. Hon'ble High Court of Punjab and Haryana in Satyawan and others vs. Raghubir3 has 2 (2011) 14 SCC 66 3 AIR 2002 Punbaj and Haryana, 290 Page 15 of 19 examined the provisions of Section 118 of the Transfer of Property Act in para 18 which is extracted below.
"18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by "A" with property "Y"
belonging to "B". In this manner, the property is received in exchange of property. There is transfer of ownership of one property for the ownership of the other. It was submitted that prior to when decree dated 20.10.1992 was not passed, there was no title of "A" in property "Y" and there was no title of "B" in property "X". It was submitted that for the first time, the right was created in immovable property by decree and, therefore, that decree required registration. It was submitted that if there was no pre-existing right in the property worth more than Rs.100/- and the right was created in the immovable property for the first time by virtue of decree, that decree would require registration.
In my opinion, oral exchange was not permissible in view of the amendment of Section 49 of the Registration Act brought about by Act No. 21 of 1929, which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act falls within the scope of Section 49 of the Registration Act and if not Page 16 of 19 registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and do not affect any such immovable property. Transaction by exchange which required to be affected through registered instrument if it was to affect any immovable property worth Rs.100 or more."
24. The aforesaid judgment has been followed by Hon'ble High Court of Himachal Pradesh in case of Regular Second Appeal No ,273 of 2008 decided on 1-3-2019 in Brahm Dass vs. Kaur Chand and others. The Hon'ble Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad4 and others held in para 17 and 18 which are extracted below.
"17. This takes us to the next question as to whether the exchange deed at Exhibit P2 is admissible in evidence or not. The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No.1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange. The value of RCC building exceeds Rs. 100/- which is not in dispute. Section 118 of the TP Act defnes 'exchange as under:
"118. "Exchange" defned.-When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
A transfer of property in completion of an exchange can be made only in manner 4 (2018) 7 SCC 646 Page 17 of 19 provided for the transfer of such property by sale".
18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs.100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply.
The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Ex.P-2 has not been registered".
25. Now coming to the facts of the case, it is quite clear that no documents with regard to exchange of suit property between the ancestors of plaintiffs and defendants have been produced to prove the plea taken by them in their written statement. Even no written exchange deed was produced before the Court as such plea taken by the defendant is in clear violation of Section 118 of the Transfer of Property Act, 1882 and also Sections 17 and 49 of the Registration Act, as these Sections provide that unless it is registered deed, it cannot be any evidentiary value. In the present case, there is no documentary evidence with regard to exchange of suit property was adduced before the trial court. The learned trial Court has recorded a finding that the exchange has to be done either by document in writing or by getting it registered under the Registration Act. This finding is in accordance with law, as such neither it is perverse nor contrary to the law and thereafter, the First Appellate Court has also reiterated the same reason for dismissing the appeal. Upon perusal of entire evidence, there is any substantial question of law requires to be formulated for hearing of this second appeal. There is a concurrent finding of fact with regard to non-
Page 18 of 19submission of exchange deed or registered exchange deed by the plaintiff which is neither perverse nor contrary to the record. As such also no question of law requires to be determined by this Court. The Hon'ble Supreme Court in the case of C.Doddanarayana Reddy (Dead) by Lrs and others vs. C. Jayarama Reddy (dead) by Lrs and others reported in 2020 (4) SCC 659 at paragraph 28 has held as under:-
"28. Recently in another judgment reported as State of Rajasthan v.Shiv Dayal, it was held that a concurrent fnding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"When any concurrent fnding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para43)."
26. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the Code. Learned counsel appearing for the appellant failed to point Page 19 of 19 out any substantial question of law which may arise for determination in the case.
27. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, both the appeals are dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC.
28. A decree be drawn up accordingly.
29. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Raju