Himachal Pradesh High Court
Rattan Chand vs Piar Singh on 13 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 455 of 2007
Decided on: March 13, 2018
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Rattan Chand .........Appellant
Versus
Piar Singh ....Respondent
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the appellant Mr. Ajay Sharma, Advocate.
For the respondent: Mr. Bhupender Gupta, Senior Advocate
with Ms. Rinki Kashmiri, Advocate.
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Sandeep Sharma, Judge:
Respondent-plaintiff (hereinafter referred to as, 'plaintiff') namely Piar Singh filed a suit i.e. Civil Suit No. 549/95/94 for declaration to the effect that he has become owner of the land comprising of Khata No. 238, Khatauni No. 585, Khasra Nos. 1213 and 1215, measuring 0-40-40 H.M. situate in Village and Mauza Barot, Sub Tehsil Fatehpur, District Kangra, Himachal Pradesh (hereinafter, 'suit land'). Plaintiff further averred in the plaint that the parties are closely related to each other being real brothers and have their residential house and vacant land in Khasra No. 1988, within Lal Lakir Abadi at Village Barot. In the year 1983, appellant-defendant (hereinafter, 'defendant') exchanged the suit land with the plaintiff. Plaintiff relinquished his share in the ancestral house and vacant land adjoining to that ancestral house in the Abadi Tika. It is further averred in the plaint that the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 2defendant became owner-in-possession of the land and ancestral house alongwith vacant land and plaintiff became owner of the land in dispute but the entries in the revenue record were not changed.
.
It is also averred in the plaint that the defendant admitted before the Panchayat factum of exchange and executed a writing to this effect, which was duly signed by the parties and other witnesses on 6.2.1983 (Exhibit PW-2/A). Plaintiff also averred that the defendant under the garb of wrong entries in his favour in the revenue record is trying to interfere in the suit land and unlawfully claims himself to be owner of the suit land and has moved an application for partition of the land in dispute. Plaintiff also alleged that the defendant also threatened the plaintiff to dispossess him forcibly from the suit land qua which the defendant has no right. It is averred in the plaint that defendant threatened to alienate the suit land on the basis of wrong entries existing in his favour. Defendant was orally requested to desist from his unlawful deeds but since the defendant refused to admit the claim of the plaintiff, suit detailed herein above came to be filed by the plaintiff.
2. Resisting the suit of the plaintiff, defendant refuted the claim of the plaintiff by filing written statement, taking therein preliminary objections of maintainability, locus standi and cause of action. Defendant further claimed that he is owner-in-possession of ½ share of the suit land and he never exchanged his share with the plaintiff. Defendant though admitted averments contained in para Nos. 1 and 2 of the plaint, but denied rest of the paras. He ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 3 categorically denied that exchange had taken place between the parties and sought dismissal of the suit.
3. Learned trial Court, on the basis of pleadings of the parties, .
framed following issues on 23.1.1998:
"1. Whether the plaintiff has become owner of ½ share in the suit land by way of exchange as alleged? - OPP
2. Whether the suit of the plaintiff is not legally maintainable, as alleged? - OP
3. Whether the plaintiff has no enforceable cause of action against defendant, as alleged? -OPD
4. Relief."
4. Subsequently, learned trial Court, vide judgment and decree dated 29.4.2005 dismissed the suit of the plaintiff and held that the defendant has every right to get his share by metes and bounds.
Learned trial Court further held that the plaintiff can not claim his title over the suit land solely on the basis of document, exhibit PW-
2/A. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiff filed an appeal under Section 96 CPC before the learned District Judge, Kangra at Dharamshala, which came to be registered as Civil Appeal No. 94- J/XII-2005. Learned District Judge vide judgment and decree dated 29.8.2007, allowed the appeal having been preferred by the plaintiff and set aside the judgment and decree dated 29.4.2005 passed by Civil Judge (Senior Division), Jawali, District Kangra, HP in Civil Suit No. 549/95(1994), consequently decreeing the suit of the plaintiff. learned first appellate Court declared plaintiff to be sole ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 4 owner-in-possession of the land comprised in Khasra Nos. 1213 and 1215, measuring 0-40-40 H.M. and entry to the contrary showing defendant as owner to the extent of half share in the .
aforesaid land was declared illegal.
5. In the aforesaid background, defendant has approached this Court by way of present Regular Second Appeal, praying therein for restoration of judgment and decree dated 29.4.2005 passed by the learned Civil Judge (Senior Division), Jawali, after setting aside judgment and decree dated 29.8.2007 passed by learned District Judge, Kangra at Dharamshala, in the appeal having been filed by the plaintiff.
6. Appeal at hand came to be admitted on 24.6.2008, on the following substantial questions of law:
"1. Whether the judgment of learned Appellate Court can be sustained when the document Ex. PW2/A has not been signed by both the parties?
2. Whether the judgment and decree of learned Appellate Court is the result of misreading of evidence particularly Ex. PW2/A and Ex. D4?"
7. Mr. Ajay Sharma, learned counsel representing the defendant, while referring to the impugned judgment and decree passed by the learned first appellate Court vehemently argued that the same are not sustainable in the eye of law as the same are not based upon correct appreciation of evidence adduced on record by the respective parties and as such, same can not be allowed to ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 5 sustain. Mr. Sharma, further contended that bare perusal of evidence available on record clearly suggests that the learned first appellate Court failed to appreciate evidence as well as law on the .
point, in right perspective, as a result of which, erroneous findings to the detriment of the plaintiff have come on record. While referring to the replication having been filed by the plaintiff to the written statement filed by the defendant, Mr. Sharma, contended that there is no rebuttal to the averments contained in the written statement, as such, averments contained in written statement ought to have been taken to be true by the court below, in terms of the provisions contained in Order 8 Rule 5 CPC. Mr. Sharma, further contended that exchange of land having value more than Rs.100/-, could only be done by way of a registered document but in the case at hand, alleged exchange dated 6.2.1983 (exhibit PW-
2/A) being unregistered document, ought not have been relied upon by the learned first appellate Court, while ascertaining correctness of the same, as such, findings qua the same being contrary to law deserve to be quashed and set aside. Lastly, Mr. Sharma contended that exchange deed, exhibit PW-2/A has not been proved in accordance with law, as such, same could not be taken into consideration by the learned first appellate Court. He further contended that there is no evidence available on record that exchange deed dated 6.2.1983 exhibit PW-2/A was ever produced by plaintiff before any revenue officer for effecting change in the revenue record, which itself suggests that no exchange deed was ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 6 ever effected inter se parties. Mr. Sharma further contended that it is quite apparent from the record that in the year 1999, plaintiff had mortgaged half share of the suit land with the Bank for raising .
loan. Had whole of the land been with the plaintiff on the basis of exchange deed, there was no question of mortgaging his share only, which action of the plaintiff certainly suggests that exchange deed dated 6.2.1983, exhibit PW-2/A is a concocted document prepared by plaintiff in connivance with the marginal witnesses. He further contended that aforesaid aspect of the matter has been totally ignored by the learned first appellate Court and as such, judgment passed by it deserves to be set aside.
8. While placing reliance upon judgment rendered by this Court in Piar Chand & Others versus Sant Ram & Others, (RSA No. 23 of 2006) decided on 5.5.2017, Mr. Sharma contended that title of immovable property having value more than Rs.100/-, can only be transferred by way of a registered document, as per Section 17 of the Registration Act, 1908. He further contended that it has been held in the aforesaid judgment rendered by this Court 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. Lastly, Mr. Sharma contended that though there is no evidence available on record that exhibit PW-2/A was executed by defendant but even if it is presumed that it was executed inter se parties, it being an unregistered document, could not be looked into ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 7 in evidence by the learned first appellate Court, as such, judgment of the learned Court below being contrary to aforesaid law laid down by this Court, deserves to be set aside.
.
9. Mr. Bhupender Gupta, learned Senior Advocate duly assisted by Ms. Rinki Kashmiri supported the judgment and decree passed by the learned first appellate Court and contended that there is no illegality or infirmity in the same, rather, perusal of same suggests that each and every aspect of the matter has been dealt with meticulously, as such, there is no scope for interference by this Hon'ble Court. While refuting the contention put forth by the learned counsel representing the defendant that no evidence worth the name is available on record suggestive of the fact that exhibit PW-2/A was executed by defendant in favour of the plaintiff, learned senior counsel contended that bare perusal of evidence led on record by plaintiff proves it beyond reasonable doubt that on 6.2.1983, defendant exchanged suit land with the plaintiff by way of exchange deed and in lieu of same, plaintiff relinquished whole of share in the ancestral house and vacant land adjoining to the house in Abadi Tika. Mr. Gupta, learned senior counsel further contended that exhibit PW-2/A was not required to be registered since exchange of suit land between the parties was an oral exchange.
While making this Court to travel through the statement of PW-2, Chain Singh son of Shri Chuha Ram, learned senior counsel contended that it stands duly proved on record that PW-2 had scribed exhibit PW-2/A, on the instructions of defendant. He also ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 8 invited attention of this Court to the statement of PW-3 Babu Ram, who identified his signatures on exhibit PW-2/A. While refuting the contention of learned counsel representing the defendant that .
exchange was necessarily required to be registered, learned senior counsel contended that the writing exhibit PW-2/A dated 6.2.1983 was not pleaded or set up by plaintiff as exchange or relinquishment deed in the plaint, rather plaintiff by way of leading cogent and convincing evidence has successfully proved on record that parties mutually exchanged the land, whereafter arrangement arrived inter se parties was duly reduced into writing before the Gram Panchayat. Mr. Gupta, learned senior counsel pleaded that exhibit PW-2/A was admitted by defendant as exchange between the parties, which had already taken place between them. Learned senior counsel further contended that once factum with regard to exchange, wherein defendant agreed to exchange suit land with plaintiff, has been duly proved in accordance with law by the plaintiff by leading cogent and convincing evidence on record, there is no question of ignoring same being un-registered document, rather, same was rightly taken into consideration by the learned first appellate Court being oral exchange. While placing reliance upon the judgments relied upon by the learned District Judge, while reversing findings returned by learned trial Court, learned senior counsel reiterated that relinquishment of share in favour of a family member need not be evidenced by a document in writing, rather it can be inferred even from the circumstances.
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 910. With the aforesaid submissions, learned senior counsel sought dismissal of the appeal being devoid of any merit. However at this stage, it may be noticed that learned senior counsel was .
unable to dispute/distinguish the law laid down by this Court in Piar Chand's case (supra), wherein admittedly, this Court taking note of the judgments rendered by the Hon'ble Apex Court i.e. Suraj Lamp and Industries Private Limited through Director vs. State of Haryana and another, (2009) 7 SCC 323, SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011) 14 SCC 66, M/s. Kamakshi Builders vs. M/s.
Ambedkar Educational Society & Ors., AIR 2007 SC 2191 and Satyawan and others vs. Raghubir, AIR 2002 Punjab & Haryana 290, has categorically held that title of an immovable property having value more than Rs.100/- can only be transferred by way of a registered document as provided under Section 17 of the Registration Act, 1908.
11. I have heard the learned counsel for the parties and gone through the record carefully.
12. In nutshell, in the case at hand, plaintiff has asserted his title on the suit land merely on the basis of exchange effected between the parties by way of written document i.e. exhibit PW-2/A dated 6.2.1983. Defendant while denying execution of this document had sought assistance of this Court for getting his signatures compared with his admitted signatures but record reveals that despite there being application filed by defendant, no steps were taken for getting ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 10 signatures of defendant on document, exhibit PW-2/A compared from handwriting expert. Though, plaintiff with a view to prove execution of aforesaid document has adduced on record oral .
evidence but that may not be very crucial to ascertain validity and legality, if any, of the exchange deed dated 6.2.1983 allegedly executed between plaintiff and defendant in the given facts and circumstances of the case. Plaintiff placed on record copy of Jamabandi for the year 1992-93 pertaining to the suit land and Abadi Deh land (Ext. P2 and Ext. P3), copy of missal hakiyat for the year 1983 (Ext. P4), copy of allotment (Ext. P1), whereas, defendant has placed on record copy of Jamabandi for the year 1977-78 pertaining to suit land and Abadi Deh land (Ext. D1 and Ext. D3) and certificate from the Administrative Officer showing presence of defendant at his place of posting (Ext. D4) on 6.2.1983 i.e. date of execution of exchange exhibit PW-2/A. Apart from above, plaintiff has also led oral evidence to prove execution of exchange exhibit PW-2/A, whereas defendant, while placing reliance upon Ext. D4 i.e. letter allegedly issued by Administrative Officer, made a serious attempt to prove on record that he was present at the place of his posting on 6.2.1983, on which date allegedly the exchange deed exhibit PW-2/A was executed. After having carefully perused exhibit PW-2/A i.e. exchange deed, this Court finds considerable force in the arguments of learned counsel representing defendant that not much reliance, if any, could be placed upon the same by the learned first appellate Court, being an unregistered document.
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 1113. Question, whether unregistered document, which purports or intends to create title, can be read in evidence, has been elaborately dealt with by this Court in Piar Chand's case (supra) and this .
Court drawing strength from the judgment passed by Hon'ble Apex Court has categorically held that title of an immovable property having value more than Rs.100/- can only be transferred by a registered document as provided under Section 17 of the Registration Act. It would be profitable to take note of following paras of aforesaid judgment:
"21. After having carefully perused the pleadings adduced on record by the defendants in shape of written statement as well as oral evidence in the shape of DW-1 to DW-4, it can safely be inferred that claim of the plaintiff as put forth in the plaint was never sought to be refuted by the defendants on the ground that they had acquired title to the extent of ½ share of the suit property by virtue of 'Azadinama' as referred in Missal haquiat Ex.P-1. It emerge from the statement of aforesaid defendants witnesses that A.D.M., Bilaspur had directed Gram Panchayat, Kuh Majhwar to effect partition of suit land and houses situated therein between Munshi Ram and the defendants, but this Court was unable to lay its hands to any document adduced on record by either of the parties from where it could be inferred that how matter with regard to partition of the suit land landed up before A.D.M. Bilaspur. Defendants by way of partition deed Ex.DW-3/A made an endeavour to prove that on 15.5.1994 Gram Panchayat had effected partition interse parties qua suit land as well as houses existing thereon. But, this Court was unable to find mention, if any, with regard to order passed by A.D.M., Bilaspur. In the alleged partition deed Ex.DW-3/A, it was only mentioned that Gram Panchayat on 15.5.1994 visited the site to effect partition in terms of orders passed by A.D.M., Bilaspur. After carefully perusing the pleadings as well as evidence on record, be it ocular or documentary led on record by the defendants, this Court sees substantial force in the arguments made by learned ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 12 counsel representing the plaintiff that since no plea of 'Azadinama'/relinquishment having been made by the plaintiff in favour of defendants was raised, learned trial Court rightly not framed issue qua the same and proceeded to decide the case on the .
basis of pleadings as well as evidence adduced on record by the respective parties. As clearly emerged from the evidence of defendant witnesses, as have been discussed hereinabove, defendants have not been able to specifically prove that on what basis they became owners to the extent of ½ share in the suit land. DW-1, defendant Sant Ram himself admitted that entire suit land was granted as a Nautor to Munish Ram in the year 1947 by erstwhile Ruler of Bilaspur Estate and since then it is coming in the possession of Munshi Ram. Defendant No.1 also admitted that Munshi Ram had not alienated the suit land. If the aforesaid version of defendant is accepted, there is no explanation worth the name, if any, rendered on record by the defendants that in what manner they came to be owners to the extent of ½ share of the suit land. Though it is well settled that Courts below while adjudicating claim of the parties cannot go beyond the pleadings, but, in the instant case learned first appellate Court while holding the defendants to be owners to the extent of ½ share of the suit land heavily placed reliance on Ex.P-1. True, it is, that perusal of Ex.P-1 i.e. Misslahaquiat suggests that the plaintiff Munshi Ram had relinquished his ½ share of suit land by way of 'Azadinama' in favour of defendants vide mutation No.148, dated 12.7.1968. The aforesaid factum of having effected mutation in favour of the defendants further gets corroborated by Ex.DX, which was subsequently placed on record by the defendants during the pendency of first appeal, perusal of which suggests that on 12.7.1968 mutation Ex.DX was attested in favour of defendants on the basis of 'Azadinama'/relinquishment qua the immovable property. Now, question which requires to be considered by this Court is that, whether mutation could be attested in favour of defendants on the basis of oral 'Azadinama' or statement having been made by the plaintiff at the time of alleged mutation. In the instant case, there is no document led on record by either of the parties suggestive of the fact that the plaintiff, while relinquishing ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 13 his ½ share in the suit property, had executed registered relinquishment deed, if any.
22. 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 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.
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 144 [(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 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
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP
15
(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 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.] (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. 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 ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 16
(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 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.]... ... ... ..."
23. 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.
24. After having carefully perused aforesaid provisions of law, this Court is of the view that Ex.P-1 as well as Ex.DX, which were admittedly not registered documents, as prescribed/defined under Section 17 of the Act, could not be read in evidence by learned first appellate Court, especially, in the absence of any registered relinquishment deed made by the plaintiff in favour of defendant No.1.
25. 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.
26. 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:-
::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 17"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.
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 rdocument 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 - 17/03/2018 22:59:31 :::HCHP 18
27. 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.
28. 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 evidence under the proviso to section 49 of the Registration Act.
(p.71)
29. 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.::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 19
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)
30. 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, 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 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."
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14. It is quite apparent from the aforesaid exposition of law that exchange deed exhibit PW-2/A being an unregistered document could not be looked in evidence by the learned first appellate Court, .
while ascertaining correctness of the claim put forth by the plaintiff in his plaint. Even if findings returned by the learned first appellate Court qua entitlement of plaintiff to suit property on the basis of aforesaid document is examined and tested on the touchstone of Section 17 of the Act ibid, by no stretch of imagination same can be held to be valid and in accordance with law. There is no valid exchange deed adduced on record by the plaintiff to prove his claim with regard to his having acquired share in the suit property and as such, learned first appellate Court has gravely erred in placing undue reliance upon Exhibit PW-2/A. Moreover, there appears to be considerable force in the arguments of Mr. Ajay Sharma, learned counsel representing the defendant that exchange deed dated 6.2.1982 exhibit PW-2/A was never placed before the revenue authorities for effecting change in the revenue record and in this regard there is no explanation rendered on record by the plaintiff, which certainly creates doubt with regard to genuineness and correctness of the aforesaid document.
15. Consequently, in view of detailed discussion made hereinabove as well as law laid down by this Court in Piar Chand's case (supra), it is reiterated that no immovable property having value more than `100/- can be relinquished/exchanged without there being a registered document, as such, findings returned by ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP 21 the learned first appellate Court being contrary to the provisions of law as contained under Sections 17 and 49 of the Registration Act, 1908 and judgment rendered by this Court in Piar Chand's case .
(supra), can not be allowed to sustain. Since this Court has categorically held that exhibit PW-2/A being an unregistered document could not be seen in evidence, this court sees no reason to refer to oral evidence led on record by the plaintiff in support of his claim. Otherwise, this court having perused material available on record has no hesitation to conclude that learned first appellate Court has not only misread the evidence particularly Exhibit PW-
2/A and Exhibit D4, rather has failed to take cognizance of provisions contained in Sections 17 and 49 of Registration Act, 1908, as a consequence of which erroneous findings to the detriment of the defendant have come on record. Substantial questions of law are answered accordingly.
16. In view of detailed discussion made herein above, present appeal is allowed. Judgment and decree dated 29.8.2007 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 94-J/XIII-2005 are set aside. Judgment and decree dated 29.4.2005 passed by learned Civil Judge (Senior Division), Jawali, District Kangra, Himachal Pradesh in Civil Suit No. 549/95/94 are restored. Suit of the plaintiff is dismissed.
Pending applications, if any, are disposed of.
(Sandeep Sharma) Judge March 13, 2018 (Vikrant) ::: Downloaded on - 17/03/2018 22:59:31 :::HCHP