Himachal Pradesh High Court
Sonam Chomdan & Another vs Ranjit Singh on 11 August, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Regular Second Appeal No.257 of 2005
Judgment Reserved on: 11.07.2017
.
Date of decision: 11.08.2017
Sonam Chomdan & Another ....Appellants-Defendants
Versus
Ranjit Singh ....Respondent-Plaintiff
Coram
The Hon'ble Mr.Justice Sandeep Sharma,Judge.
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.Rajnish K.Lall, Advocate vice
Mr.Sanjeev Sood, Advocate.
For the Respondent: Mr.G.D. Verma, Senior Advocate
with Mr.B.C. Verma, Advocate.
Sandeep Sharma,J.
This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 04.03.2005, passed by learned District Judge, Kinnaur at Rampur Bushahr, in Civil Appeal No.49 of 2004, reversing the judgment and decree dated 26.06.2004 passed by learned Civil Judge (Senior Division), District Kinnaur at R/Peo, H.P., whereby suit of the plaintiff was dismissed.
2. Briefly stated facts, as emerged from the record, are that the plaintiff-respondent (hereinafter referred to as the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes.
::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 2'plaintiff') filed a suit for declaration with consequential relief of permanent injunction against the defendants on the allegations that defendant No.1 Furbu Dandup (since .
deceased) was owner in possession of land comprised in Khasra No.349, measuring 0-10-01 hectare, situated in revenue estate Kanam, Up Mohal Kanam Khas, Tehsil Pooh, Distt.Kinnaur. It is averred by the plaintiff that on 17.12.1983, deceased defendant No.1 borrowed a sum of Rs.30,500/- from the plaintiff and agreed to return the same to him within a period of one year, failing which, the plaintiff was to be treated owner in possession of the suit land by oral sale thereof. It is further averred that on 17.12.1983, the possession of the suit land was handed over to the plaintiff by defendant No.1. It is also averred that defendant No.1 did not honour the oral agreement, dated 17.12.1983 and as such, the plaintiff had acquired rights of ownership of possession of the suit land. Thereafter, the plaintiff applied for correction of entries in the books of the Collector. It is further claim of the plaintiff that the Assistant Collector Ist Grade, Pooh, vide its order dated 7.5.1995, with consent of defendant No.1, recorded the plaintiff in possession of the suit land and therefore, defendants No.1 to 3 had no right, title or interest in the suit land. It is averred that defendants No.1 to 3 started interfering with the ownership and possession of the plaintiff over the suit land w.e.f.
::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 317.11.1995 and defendants No.2 and 3 trespassed into the suit land on the night intervening 17.11.1995 and 18.11.1995 and damaged apple plants thereby causing loss .
of Rs.20,000/- to the plaintiff. In this background, the plaintiff instituted the suit for declaration of his ownership and possession qua the suit land and defendants No.1 to 3 were sought to be restrained from interfering with the ownership and possession of the plaintiff by issuance of a decree of perpetual injunction against them. The plaintiff also sought compensation of Rs.20,000/- from defendants No.1 to 3 for causing damage to his apple plants. It is also averred that during the pendency of the suit, on 9.9.2001 defendant No.1 died and defendant No.2 Sonam Chomdan was brought on record as his legal heir.
3. Defendants No.2 and 3, by way of filing written statement, refuted the claim of the plaintiff on the grounds of limitation, maintainability and valuation for the purposes of court fee and jurisdiction. It is averred that defendant No.1 was deaf and dumb and could not have been sued except through guardian and defendants No.2 and 3 denied the ownership and possession of the plaintiff over the suit land.
Defendants No.2 and 3 also denied oral sale of the suit land by defendant No.1 in favour of the plaintiff on 17.12.1983 or at any time thereabout. It is averred by defendants No.2 and 3 that defendant No.1 had not borrowed a sum of ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 4 Rs.30,500/- from the plaintiff on 17.12.1983 and had not agreed to pay the same to him within a period of one year. It is further averred by the defendants that the suit land was .
not deemed to have been sold in favour of the plaintiff on the alleged failure of the defendant No.1 in returning the amount of Rs.30,500/- to the plaintiff. Defendants No.2 and 3 denied having interfered with the ownership and possession of the plaintiff over the suit land as well as having damaged apple plants of the plaintiff. According to defendants No.2 and 3, defendant No.1 was owner in possession of the suit land and the alleged contract, dated 17.12.1983, pleaded by the plaintiff, was stated to be void. It is alleged that that defendant No.1 was deaf and could not have entered into any contract without representation of his interest by his next friend/guardian. It is further alleged that the plaintiff was not entitled to any relief much less to the discretionary relief of permanent injunction. In the aforesaid background, the defendants sought dismissal of the suit filed by the plaintiff.
4. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
"1. Whether plaintiff is owner in possession over the suit land and defendants are interfering with the possession of the plaintiff over the suit land, as alleged? OPP.
2. Whether the defendants have caused damage to the tune of Rs.20,000/- (price of 45 apple plants) belonging to the plaintiff over the suit land as the ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 5 peaceful possession of the suit land was taken by the plaintiff with the consent of the defendant No.1, as alleged? OPP.
.
3. Whether this suit is not maintainable against the defendant No.1 as he being deaf, cannot be sued without appointing a guardian? OPD.
4. Whether suit of the plaintiff is barred by limitation as alleged? OPD.
5. Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD.
6. Whether the defendant No.1 had never taken any loan from the plaintiff, and the question of handing over the suit land to the plaintiff by the defendant No.1 does not arise, if so its effect?
OPD.
7. Whether defendant No.1 along with defendant No.2 had planted three apple trees on the suit land in the intervening winter 1981-82, which are at fruit bearing stage, if so, its effect? OPD.
8. Whether plaintiff had not been in possession of the suit land? OPD.
9. Even if, defendant No.1 had entered into any contract with the plaintiff, without the consent of the defendant No.2, whether that contract was void ab initio, as defendant No.1 being deaf was not competent to enter into a contract with plaintiff, if so, its effect? OPD-2 & 3.
10. Relief"::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 6
5. Subsequently, learned trial Court, on the basis of pleadings as well as evidence adduced on record by respective parties, dismissed the suit of the plaintiff.
.
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned District Judge, Kinnaur at Rampur Bushahr, H.P., who, taking note of the pleadings as well as evidence adduced on record by respective parties, allowed the appeal and set aside the judgment and decree passed by learned trial Court.
7. In the aforesaid background, appellants-
defendants filed instant Regular Second Appeal laying therein challenge to the aforesaid judgment and decree passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P., whereby suit of the plaintiff was decreed, with a prayer to quash and set aside the same.
8. This Court vide order dated 24.07.2006 admitted the present appeal on the following substantial questions of law:-
"1. Whether, while rejecting the plea of the respondent-plaintiff that he is owner of the suit land, was the first Appellate Court right in granting the decree of injunction and damages, holding that the respondent- plaintiff was in possession, pursuant to an oral sale, even though plea of part performance, under Section 53-A, has not been specifically raised in the plaint?::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 7
2. Whether the first Appellate Court could not have passed a decree for damages, when it did not pass an order for payment of Court fee?"
.
9. I have heard learned counsel for the parties and gone through the record of the case.
10. Substantial Question No.1:
Mr.Rajnish K.Lall, learned counsel, appearing for the appellants-defendants, while inviting the attention of this Court to the impugned judgment passed by first appellate Court, whereby first appellate Court, while accepting appeal having been preferred by the respondent-
plaintiff, held that the plaintiff could not be treated owner of the suit land, but he is in possession of the suit land on account of oral sale made in his favour by defendant No.1, contended that once plaintiff was not held to be treated as owner of the suit land, there was no occasion for the first appellate Court to hold the plaintiff in possession of the suit land, especially when plaintiff was allegedly put into possession of the suit land on the strength of oral sale made in his favour by defendant No.1. It clearly emerge from the pleadings as well as impugned judgments and decrees passed by Courts below that plaintiff claimed himself to owner in possession of the suit land on the strength of oral agreement allegedly entered interse him as well as defendant No.1 in the year 1983. As per plaintiff, defendant No.1 took a loan of Rs.30,500/- on 17.12.1983 from him on the ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 8 condition to repay the same within one year and in case defendant No.1 failed to repay the same within one year then he would handover the possession of the suit land to the .
plaintiff and thereafter plaintiff shall be deemed to be the owner in possession of the suit land.
11. This Court, after having carefully perused averments contained in the plaint as well as agreement, sees substantial force in the aforesaid arguments having been made by learned counsel representing the appellants-
defendants that no finding qua possession, if any, of respondent-plaintiff qua the suit land could be returned by first appellate court in the teeth of specific finding returned by it that plaintiff could not be treated owner of the suit land. Perusal of impugned judgment passed by first appellate Court clearly suggests that Court below, taking note of the fact that defendant No.1 failed to pay an amount of Rs.30,500/- to the plaintiff within the stipulated period i.e. one year, came to the conclusion that suit land is deemed to have been sold orally in favour of the plaintiff.
12. Apart from above, first appellate Court placed heavy reliance upon the statement Ex.PX allegedly having been made by defendant No.1 before Assistant Collector Ist Grade, Pooh (for short 'AC 2nd Grade'). Since defendant No.1 failed to make payment in terms of agreement, plaintiff applied for correction of entries of books of Collector and ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 9 accordingly AC 2nd Grade allowed the plaintiff vide order dated 7.8.1995 Ex.PA, whereby plaintiff was ordered to be recorded in possession of the suit land and since no appeal .
was filed, order passed for correction of entries of books by AC 2nd Grade attained finality. Though this Court need not to go into the correctness of findings returned by the first appellate Court qua the aspect of alleged agreement inter se the parties as well as presumption drawn by Court with regard to oral sale allegedly made in favour of plaintiff-
respondent, in view of specific findings returned by first appellate Court to the effect that the plaintiff cannot be treated as owner of the suit land, but since respondent-
plaintiff has been held to be in possession of suit land on the basis of agreement, whereby defendant No.1 had undertaken to repay loan amount of Rs.30,500/- within a period of one year, failing which respondent-plaintiff was to be treated as owner of the suit land, this Court deems it necessary to go into the question of validity of agreement allegedly executed by defendant No.1 in favour of respondent-plaintiff. At this stage, even, for the sake of arguments, if it is presumed that agreement, as referred above, was executed by defendant No.1 agreeing therein to give his suit land to respondent-
plaintiff in the event of non-payment of loan amount of Rs.30,500/- allegedly taken by him from the plaintiff, the question which arises for determination of this Court is, ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 10 "Whether respondent-plaintiff could be held to have acquired title, if any, qua the suit land on the strength of agreement which is admittedly not a registered .
document?"
13. At this stage, this Court deems it fit to take note of Sections 17 and 49 of the Registration Act, 1908, which is reproduced hereinbelow:-
"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
(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 ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 11 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[Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty 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 effect 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
(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 afforded 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 benefit 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 specified 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 ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 12 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-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement r Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument 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 certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-
Officer. 4[Explanation.--A document purporting or operating to effect 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.] ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 13 (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered. ... ... ... ... ..."
14. Section 49 of the Registration Act, 1908 reads as under:-
.
"49. Effect 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) 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: 1[Provided that an unregistered document affecting immovable property and required by r 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) 2,3 [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]... ... ... ..."
15. Perusal of aforesaid Section 17 clearly suggests that document/instrument, which intends/purports to create right/title to an immovable property having value of Rs.100/- should be registered. Similarly, perusal of Section 49 of the Act suggests that documents, which are required to be registered under Section 17 shall not affect any immovable property; comprised therein or confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registered.
::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 1416. After having carefully perused aforesaid provisions of law, this Court is of the view that agreement Ex.P_, which was admittedly not registered document, as .
prescribed/defined under Section 17 of the Act, could not be read in evidence by first appellate Court, especially, in the absence of any registered agreement made by the defendant No.1 in favour of the plaintiff.
17. 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.
18. In this regard, this Court deems it fit to rely upon the judgment passed by Hon'ble Apex Court in Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and Another, (2009)7 SCC 363, wherein the Hon'ble Apex Court has held as under:-
"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 ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 15 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.
17. Section 49 of the said Act provides that no document 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 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, affecting that property. In other words, it enables people to find 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 confidence 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 affected and secure extracts/copies duly certified.
(pp.367-368) ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 16
19. Perusal of aforesaid law, having been laid by Hon'ble Apex 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, 1908. Similarly, it also emerge 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.r
20. Reliance is also placed upon SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011)14 SCC 66, wherein the Hon'ble Apex Court has held as under:
"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 ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 17 evidence under the proviso to section 49 of the Registration Act.
(p.71) .
21. In M/s.Kamakshi Builders vs. M/s. Ambedkar Educational Society & Ors., AIR 2007 SC 2191, the Hon'ble Apex Court has held:
"24. Acquiescence on the part of Respondent No.3, as has been noticed by the High Court, did not confer any title on Respondent No.1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred.
25. It is now well-settled that time creates title.
26. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.
27. It may be true that Respondent No.1 had constructed some buildings; but it did so at its own risk. If it thought that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted.
Although Respondent No.1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn."
(p.2196) ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 18
22. In Satyawan and others vs. Raghubir, AIR 2002 Punjab and Haryana, 290, the Hon'ble Court has held as under:-
.
"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, rthe 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 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."
(p.297) ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 19
23. Reliance is placed upon the judgments of Hon'ble Supreme Court in Delhi Development Authority vs. Gaurav Kukreja, (2015)14 SCC 254 and our own High .
Court in Kamlesh Rani vs. Balwant Singh, 2010(3) Shim.L.C. 141. Hon'ble Apex Court in Delhi Development Authority's case supra has held as under:-
"16. Further a three Judge Bench of this Court in Suraj Lamp & Industries Pvt. Ltd.(2) vs. State of Haryana & Anr., (2012) 1 SCC 656, considered the validity of such SA/GPA/WILL transaction and observed thus:
"23. Therefore, an SA/GPA/WILL r transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank, (2001) 94 DLT 841, that the 'concept of power-of-attorney sales has been recognised as a mode of transaction' when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 20 cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply .
not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
(pp.260-261)
24. In the case at hand, this Court was unable to lay its hand to any document suggestive of the fact that alleged agreement was registered in terms of Section 17 of the Indian Registration Act. Once document, as referred above, was not registered as required under law, respondent-
plaintiff was not entitled to claim ownership of the suit land on the basis of the same and as such both the Courts below rightly held him not to be owner of the suit land. Now, question, which remains to be examined, whether possession, which was purely on the strength of alleged agreement executed between plaintiff and defendant No.1, could be termed to be a lawful possession or not. Since it is admitted case of the plaintiff that he came to be recorded in possession of suit land on the strength of alleged agreement, first appellate Court erred in concluding that the plaintiff is in possession of the suit land on account of oral sale made in his favour by defendant No.1. It is not understood that once ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 21 first appellate Court had returned categorical finding that the plaintiff could not be treated owner of the suit land, how plaintiff could be held to be possession of the suit land on .
account of oral sale which was admittedly based upon agreement, if any, arrived interse parties.
25. It is well settled that injunction cannot be granted against the true owner and as such first appellate Court erred in concluding that the plaintiff cannot be dispossessed from the suit land except in accordance with law. Even if arguments having been made by Shri G.D. Verma, learned Senior Counsel, representing the respondent-plaintiff is accepted that plaintiff was having possession over the suit land, his possession is wholly unlawful possession of a trespasser and injunction cannot be issued in favour of a trespasser, who gained unlawful possession, as against the appellant-defendant. In this regard reliance is placed upon Premji Ratansey Shah and Others vs. Union of India and Others, (1994)5 SCC 547, wherein the Hon'ble Apex Court has held as under:-
"5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 22 should not be an excuse to claim injunction against true owner."
(p.550) .
26. Hon'ble Apex Court in Kashi Math Samsthan & Anr. vs. Srimad Sudhindra Thirtha Swamy & Anr., AIR 2010 SC 296, has held as under:-
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima rfacie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see, whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court. In para 21 of the Judgment of the trial Court, it is found:
".......the words `certain and `some' quoted above and `when we are still in a position to carry on with the traditional duties', prima facie show that the 1st respondent has not surrendered all his rights, privilege and duties and that the 2nd petitioner has not been made as full fledged Mathadhipathi. As per the custom prevailing since continuous, vatu initiated into Sanyasa and named as successor, will become Mathadhipathi after the Mathadhipathi passes away."::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 23
From the aforesaid finding of the trial Court, it is clear that the respondent No. 1 had not abrogated all his powers as Mathadhipathi in favour of the appellant no.2 and he was only entrusted with .
certain powers. In para 22 of the Judgment of the trial Court, it was observed as follows :-
"The following circumstances also go to support the version of the 1st respondent. The 2nd petitioner himself has addressed a letter dated 4/11/99 reads as follows:
`In view of the recent events, we have kindly decided not to involve in the matters concerning the authority of Shri Samshtan (Adhikartha Vishayas) as well as Dharmic activities (Dharmic Vishayas) of the samaj. Therefore with pranamas, again and again we pray and request to relive us as early as possible.' This prima facie shows that the 2nd petitioner has been still recognizing the 1st Mathadhipathi, and therefore requested him to relieve himself from "certain activities."
A careful reading of the aforesaid findings/observations made in para 22 of the judgment of the trial Court would show that the letter dated 4th of November, 1999 clearly enumerates the fact that the appellant No. 2 had wanted to be relieved from certain activities of the Math and he had in fact sought permission from the respondent no 1 in this regard. Therefore, in our view, it was rightly held by the trial Court in the final Judgment that the appellant No. 2 continued to consider the respondent No. 1 as the Mathadhipathi of the Math even after the alleged proclamation of 1994.
The trial court again in para 24 had observed:
"If all the circumstances are taken into consideration the irresistible conclusion that can be drawn at this stage is that, the 1st respondent has not abdicated all his powers and privileges as Mathadhipathi and only some powers and privileges have been conferred on 2nd petitioner. In view of the above ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 24 discussion, I hold that the 2nd petitioner is not entitled for the injunction orders as claimed by him."
(Emphasis supplied) In view of the aforesaid findings of the .
trial Court to the extent that appellant no.
2 was not entitled to the injunction order as claimed by him, it is difficult to find any illegality or infirmity with the findings of the trial court, as noted hereinabove, atleast prima facie in respect of which, the High Court had also agreed. We are, therefore, of the view that the powers of the Mathadhipathi of the Math were not abdicated in favour of the appellant No.2. It is well settled that such power of the Mathadhipathiship of the Math could devolve to any other person after the death of the existing Mathadhipathi or anyone else, who could succeed him as the Mathadhipathi of the Math according to the customs and traditions of the Math."
(pp.299-300)
27. Mr.G.D. Verma, learned Senior Counsel, while placing reliance upon Krishna Ram Mahale (dead) by his LRs. vs. Mrs.Shobba Venkat Rao, AIR 1989 SC 2097, contended that it is well settled law that where a person is in settled possession of property, even on the presumption that he had no right to remain in charge of the property, he cannot be dispossessed by the owner of the property, except by recourse to law. Hon'ble Apex Court in the aforementioned case has held as under:-
"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 25 urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the .
plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well- settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh and Ors. AIR 1968 SC 620 (at pp.622-623). This Court in that judgment cited with approval the well-known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy 51 Ind App 293 at p. 299: (AIR 1924 PC 144), where it has been observed (p-208)(of SCR): (at p.622 of AIR):
In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court."
(p.2100)
28. This Court sees no reason to differ with the aforementioned argument having been made by Mr.G.D. Verma, learned Senior Counsel, which is based upon judgment passed by Hon'ble Apex Court, but in the instant case, as has been discussed above, possession of respondent-plaintiff is/was solely based upon agreement allegedly executed by defendant No.1, but since aforesaid ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 26 agreement has been held to be invalid on account of its non-
registration under Section 17 of the Indian Registration Act, possession, if any, of the respondent-plaintiff over the suit .
land on the strength of above mentioned agreement cannot be said to be lawful possession.
29. Most importantly, as has been taken note above, suit for declaration as well as injunction in the instant case was filed by the plaintiff specifically claiming himself to be owner in possession on the strength of agreement allegedly executed by defendant No.1, onus was upon him to prove his possession over the suit land by leading cogent and convincing evidence. But, to prove the aforesaid document, there is no evidence, be it ocular or documentary, adduced on record by the respondent-plaintiff from where it can be inferred that respondent-plaintiff was in possession of the suit land. In the case at hand, none of the plaintiff witnesses stated something specific with regard to possession of plaintiff over the suit land. None of the plaintiff witnesses stated something specific with regard to alleged agreement executed inter se parties.
30. Leaving everything aside, this Court is unable to lay its hand to evidence, if any, adduced by plaintiff to prove the factum of payment of Rs.30,500/- and thereafter delivery of possession of the suit land by defendant No.1. True, it is that plaintiff, while placing reliance upon order dated ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 27 7.8.1995 passed by AC 2nd Grade, Pooh, Ex.PA, made an attempt to prove on record that possession was delivered to respondent-plaintiff on the statement having been made by .
defendant No.1. Though factum with regard to statement, if any, having been made by defendant No.1, who allegedly was a deaf and dumb person, also stands refuted by the defendants, but, even if, for the sake of argument, as has been observed above, it is presumed that such statement was made by defendant No.1, could respondent-plaintiff held to be owner in possession of the suit land merely on the basis of statement having been made by defendant, who happened to be the true owner of the suit land. Apart from above, overwhelming evidence in the shape of revenue entries available on record suggests that the name of respondent-
plaintiff never came to be recorded as owner in possession of the suit land in the revenue record, despite the fact that after alleged statement having been made by defendant No.1 settlement took place in the village. Though question with regard to validity, if any, of alleged agreement is not a question before this Court, but otherwise also this Court finds from the record that the plaintiff in his statement categorically admitted that alleged contract/agreement was executed in presence of S/Shri Rajender Singh and Bali Ram, but interestingly, none of them was examined by the plaintiff in support of his claim. There is no evidence at all ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 28 on record to prove the payment of loan amounting to Rs.30,500/- by the plaintiff to defendant No.1 on 17.12.1983. Since plaintiff specifically failed to prove factum .
with regard to advancement of loan, if any, in favour of defendant No.1, Court below wrongly arrived at a conclusion that defendant No.1 handed over possession of the suit land to him in the year 1984, after having failed to repay the aforesaid loan amount, in term of agreement. Since, entire case of respondent-plaintiff with regard to his possession over the suit land is/was based upon alleged agreement, which in no terms could be said to be valid document, first appellate Court fell in grave error while granting decree of injunction and damages holding respondent-plaintiff to be in possession that too pursuant to oral sale. Interestingly, it emerge from the record that at no point of time plea of part performance as envisaged under Section 53-A was specifically raised by the plaintiff in the plaint.
31. Mr.G.D. Verma, learned Senior Counsel also placed reliance upon Roshan Lal vs. Krishan Dev, Latest HLJ 2002(HP) 197, to suggest that it is settled law that where a person is in settled possession of the property and even if it assumed that he had no right to remain in the property, he cannot be dispossessed by owner except by recourse of law. But, as has been observed above, the plaintiff has not led evidence, if any, on record suggestive of ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 29 the fact that he was in possession of the suit land save and except agreement which has been already held to be invalid being unregistered document.
.
32. Mr.Verma, while placing reliance upon Deepak Prakash vs. Sunil Kumar, 2014(2) Shim.L.C. 822 and C.Mackertich vs. Steuart & Co.Ltd., AIR 1970 SC 839, contended that no amount of evidence beyond pleading can be looked into. There cannot be any quarrel with regard to aforesaid proposition of law as laid down in the case referred above. It is well settled that evidence adduced beyond the pleadings would not be admissible nor can any evidence may be permitted to be adduced which are at variance to the pleadings. However, contention having been made by Mr.Verma cannot be accepted that since no plea with regard to non-registration of agreement, on the basis of which plaintiff came into possession over the land, was raised in written statement having been filed by appellant-defendant, they cannot be allowed to raise this plea in the instant appeal because of the fact that submission with regard to non-registration of agreement relied upon by the plaintiff to claim ownership and possession of the suit land is purely legal submission and can be raised/made at any stage of the case.
33. While referring to the judgments passed by Hon'ble Apex Court in Paras Nath Thakur vs. Smt.Mohani ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 30 Dasi (deceased) and others, AIR 1959 SC 1204, Tirumala Tirupati Devasthanams vs. K.M. Krishnaiah, (1998)3 SCC 331, Mohan Lal vs. Nihal Singh, (2001)8 .
SCC 584 and Lisamma Antony and Another vs. Karthiyayani and Another, (2015)11 SCC 782, learned counsel representing the plaintiff stated that this Court cannot go into questions of fact in second appeal, however erroneous the findings of fact recorded by the courts of fact may be. Learned Senior counsel, while relying upon aforesaid judgments, further contended that concurrent findings of Courts below regarding possession of suit land cannot be interfered with.
34. It is true that in second appeal, a finding of fact, even if erroneous, will generally not be disturbed, but Hon'ble Apex Court in Vishwanath Agrawal S/o Sitaram Agrawal vs. Sarla Vishwanath Agrawal, (2012)7 SCC 288 has specifically held that where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. Hon'ble Apex Court has further held that an issue pertaining to perversity comes within the ambit of substantial question of law. In this regard reliance is placed on the following paras of aforesaid judgment:-
::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 31"34. Keeping in view the aforesaid enunciation of law pertaining to mental cruelty, it is to be scrutinized whether in the case at hand, there has been real mental cruelty or not, but, a significant one, the said scrutiny can only be done if the findings are perverse, unreasonable, .
against the material record or based on non-
consideration of relevant materials. We may note here that the High Court has, in a singular line, declined to interfere with the judgment and decree of the courts below stating that they are based on concurrent findings of fact. The plea of perversity of approach though raised was not adverted to.
35. It is worth noting that this Court, in Kulwant Kaur v. Gurdial Singh Mann, (2001)4 SCC 262 has held that while it is true that in a second appeal, a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. An issue pertaining to perversity comes within the ambit of substantial question of law. Similar view has been stated in Govindaraju v. Mariamman, (2005)2 SCC 500.
36. In Major Singh v. Rattan Singh (1997)3 SCC 546, it has been observed that when the courts below had rejected and disbelieved the evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
37. In Vidhyadhar v. Manikrao and another, (1999)3 SCC 573, it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board (2007)14 SCC 138."
(p.302) ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 32
35. It may be observed that in the instant case Courts below have not returned concurrent findings qua the possession of the plaintiff over the suit property rather .
judgment passed by trial Court whereby suit of the plaintiff was dismissed, came to be reversed in the first appeal before learned District Judge and as such this Court is not excluded to analyze/examine evidence available on record to ascertain correctness of judgment passed by learned first appellate Court reversing the judgment of trial Court.
Moreover, as has been discussed in detail hereinabove, findings returned by the learned first appellate Court qua the possession of the plaintiff over the suit land is totally erroneous being contrary to the evidence available on record.
36. Hon'ble Apex Court in Vishwanath Agrawal's case supra has categorically held that findings, if any, returned by Court below are based on no evidence or record and no reasonable person could have come to that conclusion are to be termed as perverse. Hence, this Court has no hesitation to conclude that finding returned by first appellate Court qua the possession is perverse and as such deserves to be quashed and set aside. Substantial question of law is answered accordingly.
Substantial Question No.2:
37. There appears to be merit in the contention of Shri Rajnish K.Lall, learned counsel representing the ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 33 appellants-defendants, that no decree for damages should have been passed by Court below in the absence of requisite Court fee. It clearly emerge from record that respondent-
.
plaintiff, while filing the suit for declaring him to be owner in possession of the suit land with consequential relief of permanent prohibitory injunction, also sought damages amounting to Rs.20,000/- on account of damage caused to appellant-plaintiff and in this regard Court fee amounting to Rs.1856/- was paid. But, interestingly Court fee amounting to Rs.20-00 was paid at the time of filing of appeal against the judgment of trial Court, whereas, respondent-plaintiff was required to affix Court fee of Rs.1856/- in the appeal while claiming damages of Rs.20,000/-. Interestingly, Court below, ignoring aforesaid omission on the part of respondent-
plaintiff, proceeded to hold respondent-plaintiff entitled for damages to the tune of Rs.20,000/- on account of compensation for damages to his apple plants alongwith interest @ 9% per annum w.e.f. date of institution of suit till payment.
38. Shri G.D. Verma, learned Senior Counsel representing the appellant-plaintiff, while inviting the attention of this Court to Order 7 Rule 11B, contended that aforesaid omissions, if any, to pay Court fee, could be rectified by respondent-plaintiff in case same was pointed out or asked by Court below. But, since no such order, as ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 34 envisaged under Order 7 Rule 11B, was ever passed by first appellate Court, claim of respondent-plaintiff qua damages cannot be rejected on the ground of non-payment of requisite .
Court fee.
39. Perusal of Order 7 Rule 11B clearly suggests that omission, if any, to pay requisite Court fee could be rectified by Court below by passing appropriate order directing respondent-plaintiff to make deficiency good in Court fee, but there is no order available on record suggestive of the fact that order, if any, was ever passed by learned first appellate Court under Order 7 Rule 11B.
Otherwise also, as has been taken note above, respondent-
plaintiff is not entitled to any damages allegedly caused to his apple trees allegedly grown by him over the suit land on account of specific finding returned by this Court that respondent-plaintiff is/was not entitled to the possession of the suit land on the basis of unregistered agreement allegedly executed by defendant No.1. Substantial question of law is answered accordingly.
40. In this regard reliance is placed upon Rachna Sharma vs. Meena Kumari Sharma, 2013(1) Shim.L.C. 428, wherein this Court has held as under:-
"25. At this stage, except assertions of petitioner in the application, under Order 7 Rule 11 read with Section 151 CPC and Section 7 of the Act, there is no material to ascertain the market value of the built up structures pleaded in the plaint. In ::: Downloaded on - 18/08/2017 21:50:28 :::HCHP 35 Kamaleshwar Kishore Singh (supra), it has been held that defence taken in the written statement may not be relevant for the purpose of deciding the payment of Court fee by the plaintiff. In .
M/s.Commercial Aviation and Travel Company (supra), the Supreme Court has held that if the Court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and consequently, order 7 Rule 11(b) will not be applicable. In these circumstances, the Court is not in a position to determine the correct valuation of the built up structure referred in the plaint, and, therefore, plaint cannot be rejected under order 7 Rule 11 of the Code for want of correct valuation for the purpose of Court fee. The trial Court, therefore, while framing issues shall also frame the issue regarding the valuation of the suit property for the purpose of Court fee and decide the issue in accordance with law after giving opportunity to the parties to lead evidence."
(pp.436-437)
41. Consequently, in view of detailed discussion made hereinabove, this Court sees valid reason to interfere in the judgment passed by first appellate Court, which is apparently not based upon the proper appreciation of evidence as well as law. This appeal is allowed. Judgment passed by first appellate Court is set aside and that of the learned trial Court is restored. There shall be no order as to costs. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.
August 11, 2017 (Sandeep Sharma)
(aks) Judge
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