Gujarat High Court
Rancchodbhai vs Premabhai on 17 February, 2010
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SA/33/2010 15/ 15 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 33 of 2010
With
CIVIL
APPLICATION No. 331 of 2010
In
SECOND
APPEAL No. 33 of 2010
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RANCCHODBHAI
MORARBHAI PATEL P/W/O SHARADBHAI RANCCHODBHAI - Appellant(s)
Versus
PREMABHAI
MORARBHAI PATEL - Defendant(s)
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Appearance
:
MR
DIPEN C SHAH for
Appellant(s) : 1,
MR NV GANDHI for Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 17/02/2010
ORAL
ORDER
1). Heard learned advocate for the parties at length and gone through the paper book and orders impugned in this appeal. The Second Appeal is preferred by the original plaintiff under Section 100 of Code of Civil Procedure,1908 challenging the order in Regular Civil Appeal No.6 of 2003 dated 17.4.2009 preferred against the judgment and order dated 11.9.2003 in Regular Civil Suit No.33 of 1995 filed by the plaintiff (present appellant) for declaration and for permanent injunction with regard to land which was subject matter of the suit.
2). The facts in brief leading to file second appeal deserve to be set out as under:
2.1). It was a case of the plaintiff that the plaintiff and defendant are brothers and by sale deed, the suit property came to be transferred by way of sale to the plaintiff. The said document is dated 27.11.1972, on the strength of said documents, the mutation in the revenue record by way of revenue entry came to be made whereunder the plaintiff's name along with defendant's name came to be incorporated in respect of the sale property. The plaintiff, thereafter, moved revenue authorities and obtained orders with regard to land in question, which were in his favour and, thereafter, as the plaintiff apprehended coercive steps from the defendant, filed a suit being regular civil suit no.33 of 1995. The Court for the first instance with its order dated 11.9.2003 dismiss the same and vacated the order of status quo granted on 8.8.1997,
2.2). Being aggrieved and dissatisfied with the said order, plaintiff preferred appeal being Regular Civil Appeal No.6 of 2003, which came to be rejected by an order dated 17.4.2009 passed by the 4th Additional District Judge, Surat at Vyara confirming the judgment and decree passed in Regular Civil Suit No.33 of 1995. The appellant has therefore filed this second appeal raising the following substantial questions of law.
[1] Whether judgment and order of deputy collector L.N.D.-8, Vyara dated 18.3.1996 passed in exercise of jurisdiction under section 73AA of the Bombay Land Revenue Code, 1879 declaring the appellants-original plaintiffs to be in lawful possession of the suit property in pursuance of agreement to sale/Satakhat dated 27.11.1975 is final, conclusive and binding on the civil court in view of section 73AC bearing the jurisdiction of the civil court in matters which have been settled, decided or dealt with by the collector under section 73AA?
[2] Whether the opponent-original defendant is estopped in law from taking plea contrary to that taken in the proceedings before the deputy collector L.N.D.-8 No.GMN/73AA(4)93/95, in regular civil suit 33/1995? When the opponent- original defendant in the proceedings before the deputy collector under section 73AA having not disputed the execution of agreement to sale/Satakhat produced at Exhibit 130 and having not disputed lawful possession of the appellants-original plaintiffs, whether the learned lower court committed grave error of jurisdiction in permitting opponents in taking diametrically opposite and inconsistent plea in the proceedings of Regular Civil Suit 33/95?
[3] Whether an unregistered sale deed has the force of executable solemn promise creating an obligation of the nature equal to that of agreement to sale and capable of giving a right of specific performance as well as protection of possession which it witnesses?
[4] Whether the learned trial court and appellate court committed a grave error in the interpreting agreement to sale/Satakhat dated 27.11.1975 as unregistered sale deed? And therefore in rejecting the plaintiff's suit by proceeding on totally wrong and erroneous footing of construing an agreement to sale as sale deed while ignoring that an entry in 7/12 extract cannot be effected unless the agreement to sale is specifically performed while ignoring the receipts at Exhibit 107 to Exhibit 122 of payment of revenue tax and education cess by Appellant-plaintiffs.
[5] Whether the lower courts committed grave error of law in holding that unregistered sale deed cannot be read into evidence even for collateral purposes of establishing possession?
[6] Whether the judgment and order of the lower court is perverse for not believing the execution and contents of agreement to sale at exhibit 130 while failing to consider the oral testimony of the witness Gaminbhai Nathubhai Desai at Exhibit 129 who is the attesting witness to agreement to sale at Exhibit130, wherein it was clearly deposed that Appellant- plaintiff is in the possession of the property since 1975 and that the signature on instrument at Exhibit 130 are his and that Exhibit 130 has been executed in his presence?
[7] Whether the judgment and order of the lower court is perverse for failing to consider and appreciate payment of revenue tax and education cess and receipts thereof produced by appellant's-plaintiffs vide exhibit 107 to Exhibit 122 as proof of possession of suit lands?
[8] Whether the judgment and order of the lower courts is perverse for failing to give finding as regards the proof of execution of Exhibit 130?
2.3). Shri Dipen Shah, learned advocate appearing for the appellant contended that the finding of the Court of the first instance as well as of the Appellate court were not based upon the evidences on record.
2.4). Shri Dipen Shah, learned advocate appearing for the appellant took this Court through the testimony of the witnesses and pointed out that in witnesses testimony also, it has emerged on the record that the possession in fact is with plaintiff and, therefore, findings recorded by the Court contrary to the said testimony would certainly not be tenable in the eye of law.
2.5). Shri Dipen Shah, learned advocate appearing for the appellant relying upon the testimony of the defendant herein above submitted that even defendant also did not have exact knowledge with regard to the crops standing on the land and when the revenue receipt as well as the testimony of the defendant himself go to show that the possession is with present plaintiff, then the Court ought not to have held otherwise. Shri Shah further submitted that the question which is required to be posed and answered is as to whether the document in question namely so called Satakhat/sale deed can be construed as solemn executable promise and relief based there upon can be granted. Shri Shah further submitted that the issue of document being registered or not would pale into insignificance in light of the questions which are being framed i.e the Satakhat of the document in question was in fact a promise to sale or agreement to sale and as such a sale was required to be treated by the Courts throughout. Shri Shah relying upon the provisions of Specific Relief Act also submitted that the possession is very material aspect in the entire proceedings and, therefore, the plaintiff cannot be dispossessed on the suit land without there being due procedure of law.
2.6). Shri N.V. Gandhi, learned advocate appearing for the defendant herein above contended that the questions which have been framed are not substantial questions of law and, therefore, the second appeal is not required to be entertained. Shri Gandhi relying upon the decision of the Apex Court in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in AIR 2009 SC 1489 contended that the documents which are sale documents and made basis for filing the suit, in itself, were absolutely non-admissible documents and the documents cannot be relied upon for even indicating any collateral purpose namely possession in question.
2.7). Shri Gandhi further submitted that the suit of such nature should fail and has rightly failed. He relied upon the decision of this court in case of Gohil Amarsingh Govindbhai (deed) by L.Rs. Vs. Shah Mansukhlal Chhaganlal (Decd.) by L.R. reported in AIR 2003 Gujarat 78 and submitted that the suit in this nature with this prayer would not be maintainable.
2.8). Shri Gandhi thereafter, submitted that the substantial questions of law with regard to Section 73AA of the BLRC is not even relied upon and or made basis in form of any pleading in the plaint itself. Relying upon the decision of the Apex Court in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L. Rs. & Ors. reported in AIR 2008 SC 2033 and observation of the Paragraph 23 of the court submitted that the questions of this nature cannot be gone into under Section 100 of the Code of Civil Procedure.
(3) This Court has heard the learned advocate for the parties and peruse the order impugned.
(4) Before adverting to the questions raised by the appellant in this appeal and termed them to be substantial questions of law, it would be most appropriate at this stage to bear in mind the fact that the original suit filed by the present appellant, original plaintiff for declaration and injunction only, that he is owner of the land on the strength of sale deed dated 27.11.1997. His subsequent application for amendment seeking amendment of the plaint being Exh.104 made under order 6 Rule 17 incorporating prayer for specific performance also has been rejected by the Trial Court. In view of this, the suit was essentially for declaration and injunction only. The so called sale deed is admittedly not a registered document. Now for the first time in second appeal, it is termed to be an executable promise in order to overcome the requirement of registration for making it admissible. In light of these facts, now let us examine the rival contention of the learned advocate for the parties and the questions framed as substantial questions of law in this appeal.
(5) The Court is hearing the second appeal at the admission stage and, therefore, no elaborate discussion with regard to each of the question said to have been substantial question need to be dwell upon as the questions are intertwined and, therefore, they have been dealt with jointly as under:
(6) The reading of the judgment of the Trial Court, which is based upon the evidence on record and which is not shown to have been in any way perverse on account of not recording its finding as per the evidence.
Therefore, the suit property is claimed to belong to the plaintiff on account of so called sale deed dated 27.11.1975. The plaintiff has, thereafter, relied upon the revenue proceedings and the crop taken on the land, the defendant's ignorance with regard to crop on the said land. At this stage, it is required to be once again noted that the suit was filed by the plaintiff for seeking declaration with regard to his claim and title upon the suit land. Therefore, he cannot relied upon the weakness in the case of the defense and defendants. He has to make out his own case for seeking declaration with regard to the title of the land in question. The plaintiff, therefore, could not have been successfully relied upon the revenue proceedings in absence of any admissible document of sale. The so called writing is actually nothing but an agreement to sale, which has sought to be now termed to be executable solemn promise , but merely changing the nature of the document in pleadings itself would not attach importance to the document and its contents and, therefore, the Court has to take it into consideration as it has been sought to be pressed into service in the suit itself. The Exh.130 document is not accepted to be inspiring any confidence at all as could be seen from the discussion in the judgment of the Trial Court. The document, not being registered document, was not admissible in evidence. The Apex Court in case of Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, reported in AIR 2009 SC 1489 observed unequivocally that unregistered sale deed is not admissible in evidence and the said document would also not be admissible for collateral purpose. The Learned Counsel for the defendant in the present second appeal, therefore, has rightly placed reliance upon the judgment in support of his submissions that the document in question was rightly not treated as a valid evidence so as to pronounce upon the right and title claimed therefrom. The learned advocate for the opponent hereinabove has also relied upon decision of the Apex Court in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by L. Rs. & Ors., reported in AIR 2008 SC 2033 specially paragraph 24 and 25.
(7) The advocate for the opponent has also relied upon the decision of this Court in case of Gohil Amarsing Govindbhai (decd.) by L.Rs. Vs. Shah Mansukhlal Chhaganlal (Decd.) by L.R., reported in AIR 2003 Gujarat 78 in support of his submissions with regard to non-registered documents and its efficacy as an evidence.
(8) There are catina of the decisions of the Apex Court with regard to the efficacious pronouncement of title lying with the Civil Court only. The Revenue Authorities, therefore, cannot have by their judgment and order pronounce upon the ownership of the immovable property in question. The Revenue Authority's record and its pronouncement are, therefore, to be treated as in respect of the revenue collection and it may not be treated as valid evidence or pronouncement of right and title based upon examination of evidence. In the instant case, therefore, the pronouncement of the revenue authorities in favour of the plaintiff and the plaintiff's submission that the defendant cannot change his stand with regard to possession would be of no avail. The order impugned, therefore, in my view does not suffer from any infirmity.
(9) It is also required to be noted at this stage that the Exh.130 document cannot be classified to be an agreement to sale and the finding recorded on this cannot be said to be perverse in any manner. The plaintiff rightly is held not to be entitled to claim any title flowing therefrom qua suit property. It is also required to be noted at this stage that the plaintiff did not step into witness box and it was only power of attorney holder, who gave evidence. The appellant has raised specific questions to be determined namely, whether judgment and decree passed by the Learned Judge in Regular Civil Suit No.33 of 1995 is perverse, illegal and, therefore, required interference and is answered that the same is legal, proper and hence no interference is required.
(10) In view of the aforesaid discussion, this Court is of the view that no substantial question is raised requiring admission of this appeal. Hence, the appeal is not required to be admitted and is rejected.
(S.R.BRAHMBHATT,J.) Vahid Top