Punjab-Haryana High Court
Harnam Singh vs Amar Singh & Ors on 15 May, 2020
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
RSA 5072 of 2003 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA 5072 of 2003 (O&M)
Date of Decision: May 15, 2020
Harnam Singh (since deceased) th.his LRs. ....Appellant(s)
Versus
Amar Singh (deceased) through his LRs.and anr. ...Respondent(s)
CORAM:HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU
Present: Mr.G.S. Punia, Sr. Advocate with
Ms. Harveen Kaur, Advocate for the appellant.
Mr.H.S. Dhandi, Advocate for respondent No.1.
Service of respondent No.2 dispensed with
vide order dated 26.02.2005.
*****
MAHABIR SINGH SINDHU, J.
Appellant/Defendant No.1(Harnam Singh) preferred present Regular Second appeal against the impugned judgment & decree dated 15.09.2003 passed by Learned Additional District Judge, Fatehgarh Sahib, whereby an appeal filed by respondent No.1/ plaintiff (Amar Singh) was allowed and judgment & decree dated 10.02.1998 of learned Civil Judge (Sr. Division), Fatehgarh Sahib, thereby dismissing his suit was set aside.
Subject matter of the lis is agricultural land measuring 23 kanals 12 marlas comprised in Khewat No.68, Khatoni No.147, Khasra No.24//6 (8-0), 7 (8-0), 8/2 (7-12) situated in Village Bhamarsi Zer, as per Jamabandi for the year 1987-88 (hereinafter referred as 'land in dispute'). Dispute is primarily between appellant/defendant No.1 (Harnam Singh) and respondent No.1/plaintiff (Amar Singh). Both the parties are staking their claim regarding the land in dispute on the basis of their respective (separate) registered sale deeds executed by respondent/ defendant No.2 (Shamsher Singh), (hereinafter referred as 'vendor'). 1
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2. Brief facts of the case are that respondent No.1 filed a Civil Suit No. 436 dated 15.06.1992 (727-T of 16.12.1997) for declaration and permanent injunction against the present appellant as well as vendor to the effect that he is owner in possession of land in dispute and that judgment & decree dated 02.05.1992 obtained by appellant in Civil Suit No. 936 of 26.11.1988 titled as Harnam Singh vs.Amar Singh are null, void, collusive and not binding upon his rights; restraining the appellant from execution of the decree dated 02.05.1992 while getting the sale deed executed by vendor regarding the land in dispute; further prayed that appellant be restrained from taking possession of the land in dispute forcibly, illegally or in any manner.
Material pleadings by respondent No.1are as under:-
i) That he was not a party to Civil Suit No.936 of 1988 resulting into the passing of judgment & decree dated 02.05.1992.
ii) He is a bonafide purchaser for consideration without notice vide sale deed dated 13.09.1988 executed by vendor, who was the lawful owner of the land in dispute. Also pleaded that prior to the above sale deed an agreement to sell dated 08.07.1987 was executed between respondent No.1 as well as vendor and who received an earnest money of Rs.25,000/- at that time. Thereafter, vendor received more amount of Rs.30,000/- by way of writing dated 05.12.1987 and upon receiving the balance amount, he executed the sale deed dated 13.09.1988 in favour of respondent No.1. The possession of the land in dispute was handed over by 2 2 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) vendor, duly recited in the sale deed and since then respondent No.1 is continuing as owner in possession of the land in dispute.
iii) Vendor never executed any agreement to sell dated 11.08.1987 in favour of appellant and even if the same is proved, it is the result of collusion between both of them i.e. appellant and vendor, thus, the same is forged and false.
iv) That agreement to sell was executed with respondent No.1 on 08.07.1987, whereas the appellant is claiming the agreement to sell dated 11.08.1987, thus the agreement executed in favour of the respondent no.1 is prior in time to the appellant. Appellant was having full knowledge about the agreement to sell dated 08.07.1987 executed by vendor in favour of respondent No.1 as he (appellant), on earlier occasion, filed a Civil Suit No. 429 dated 27.10.1987 against vendor as well as respondent No.1 for permanent injunction for restraining the vendor from alienating the land in dispute by way of sale, mortgage, gift or in any manner in favour of respondent No.1, but the same was dismissed on 22.12.1988. In that suit, although at first instance, the interim injunction was obtained by appellant, but subsequently learned trial Court vacated the same and even an appeal preferred against the vacation of interim stay at the instance of appellant, was dismissed on 21.11.1988. In civil suit no. 429 of 1987 appellant clearly acknowledged that vendor 3 3 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) wanted to alienate the land in dispute in favour of respondent No.1 on the basis of agreement to sell dated 08.07.1987, thus he was very well aware about the same.
v) Appellant never came into possession of the land in dispute, but by taking advantage of the void decree dated 02.05.1992 wants to get the possession as well as execution of the sale deed in his favour without any lawful right.
On the other hand, appellant while filing written statement, denied the claim of respondent No.1 regarding bonafide purchaser on the basis of sale deed dated 13.09.1988. He also denied that judgment and decree dated 02.05.1992 is collusive. Further denied the execution of agreement to sell dated 08.07.1987, receipt of Rs.25000/- as earnest money as well as subsequent amount of Rs.30000/- by way of writing dated 05.12.1987 and execution of the sale deed dated 13.09.1988 in favour of respondent No.1 after receiving balance sale consideration by vendor. Further denied the handing over of the possession of land in dispute by way of recital in the sale deed or that respondent no.1 is in possession of the land in dispute as owner. Also denied any knowledge about the agreement to sell dated 08.07.1987. He further denied the dismissal of his injunction suit on 22.12.1988 or that any appeal filed by him was dismissed on 21.11.1988 against vacation of interim injunction. Further submitted that vendor wanted to alienate the land in dispute in favour of respondent No.1 on the basis of the alleged agreement to sell dated 08.07.1987, but he never came into possession of the same. Again submitted that respondent No.1 contested the suit for specific performance filed by appellant as he appeared as a witness in that case while producing 4 4 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) the agreement to sell alongwith sale deed allegedly executed by vendor in his favour, but the same were discarded by the learned trial Court concerned and it was held that he never came into possession of the land in dispute. Further submitted that Sale deed executed by vendor in favour of the appellant in compliance of execution of the decree dated 02.05.1992 is legal and valid.
Respondent No.1 filed replication while reiterating the submissions made in the plaint. He denied the factum of contesting the suit for specific performance filed by appellant or that documents i.e. agreement to sell dated 08.07.1987 and sale deed dated13.09.1988 were discarded by the Court concerned, at that time. He further submitted that it is wrong to say that respondent No.1 never came into possession of the suit land or that sale deed executed by vendor in favour of the appellant is legal and valid, rather the same is null and void being without competency. He again submitted that decree dated 02.05.1992 being null and void is not binding upon him.
It is necessary to mention here that initially vendor was duly represented by his counsel, but later on proceeded ex-parte by Ld. Trial Court vide order dated 04.08.1994.
3. On the basis of pleadings of both the parties, learned trial Court framed the following issues, on 15.10.1994 and 06.01.1997:-
1. Whether the plaintiff is owner in possession of the land in dispute? OPP
2. Whether the judgment and decree dated 2.5.1992 passed in Civil Suit No. 936 of 26.11.1988 is null and void, collusive and not binding on the plaintiff? OPP
3. Whether the plaintiff is entitled to the injunction prayed for?
OPP 3A Whether the defendant No.2 agreed to sell the suit property to the plaintiff vide agreement to sell dated 8.7.1987? OPP 5 5 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) 3B Whether the plaintiff is a bonafide purchaser for consideration without notice of any agreement to sell in favour of defendant no. 1? OPP 3C Whether the agreement to sell dated 11.8.1997 allegedly executed by defendant No.2 in favour of the defendant No.1 is collusive, forged and false document and the same is having no effect on the ownership right of the plaintiff? OPP 3D Whether the plaintiff is entitled for relief of declaration as prayed for? OPP 3E Whether the suit is not maintainable? OPD.
3F Whether the plaintiff has no cause of action to file the present suit? OPD.
3G Whether the civil suit has no jurisdiction to try the present suit?OPD
4. Relief.
In order to prove his case, respondent No.1 appeared as PW5 as well as examined 4 (four) other following witnesses:-
PW1 Sadhu Singh son of Bhagwan Singh marginal witness of agreement to sell dated 08.07.1987(Ex.P-1), PW2 Sadhu Singh son of Mugli Singh, lambardar, attesting witness to sale deed dated 13.09.1988 (Ex.P2), registered on 29.11.1988;
PW3 Bant Singh, marginal witness of endorsement Ex.P3 dated 05.12.1987, vide which Rs.30000/- were received by defendant /respondent No.2 from plaintiff.
PW4 Sham Lal Sharma, Advocate, scribe of sale deed Ex.P2.
Respondent No.1 also produced the following documentary evidence in support of his case:-
Ex.P1 Agreement to sell dated 08.07.1987;
Ex.P2 Sale deed dated 13.09.1988 registered on
29.11.1988;
Ex.P3 Receipt dated 05.12.1987 for Rs.30,000/-;
Ex.P4 Copy of Jamabandi for the year 1987-1988;
Ex.P5 Copy of Khasra Girdawari dated 02.06.1992 for the
period 1988 - 1992;
6
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Ex.P6 Copy of decree sheet dated 02.05.1992 in CS No.
936 of 26.11.1988;
Ex.P7 Copy of judgment dated 02.05.1992 in CS 936 of
26.11.1988;
Ex.P8 Copy of mutation dated 29.12.1988;
Ex.P9 Copy of order dated 22.12.1988;
Ex.P10 Copy of judgment dated 21.11.1988;
Ex.P.11 Copy of Khasra Girdawari dated 29.06.1993 for the
period from 1988 - 1992;
Ex.P.12 Copy of Jamabandi for the year 1992-93;
Ex.P13 Copy of Khasra Girdawari (1993 - 1995);
On the other hand, appellant himself appeared as DW3 and also examined two other defence witnesses, which are as under:-
DW1 Mukhtiar Singh, marginal witness of agreement dated 11.08.1987, DW2 Harpal Singh, S/o Labh Singh marginal witness of sale deed dated 28.05.1993, In addition to above, appellant also produced the following documentary evidence:-
Ex.D1 Copy of Sale deed dated 28.05.1993.
Ex.D2 Copy of agreement dated 11.08.1987.
Ex.D3 Copy of Judgment dated 02.05.1992, in CS No. 936
of 26.11.1988.
Ex.D4 Copy of decree dated 02.05.1992 in CS 936 of
26.11.1988.
4. Learned trial Court while deciding issue Nos.1, 2, 3A, 3B and 3C jointly, held that judgment & decree dated 02.05.1992 is valid and vendor never agreed to sell the land in dispute to respondent No.1 vide agreement to sell dated 08.07.1987. Learned trial Court further held that respondent No.1 is not a bonafide purchaser for consideration without any 7 7 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) notice on the basis of agreement to sell as well as sale deed dated 13.09.1988 registered on 29.11.1988 (Ex.P2), as the same is null and void, thus not binding upon the appellant while observing that sale deed in favour of respondent No.1 was registered on 29.11.1988; whereas Civil Suit No.936 was filed on 26.11.1988, therefore, the same is hit by principle of lis pendense. Learned trial Court primarily relied upon the judgment of Hon'ble Supreme Court reported as AIR1961SC1747, Ram Saran Lall and others Vs. Mst. Domini Kuer and others. Further held that respondent No.1 is estopped from filing the suit by his own act and conduct as the agreement to sell dated 11.08.1987, executed by vendor in favour of the appellant is not collusive, and decided all the above issues against respondent No.1 and in favour of appellant.
Learned trial Court while observing that respondent No.1 is neither proved to be owner; nor in possession of the land in dispute, therefore, decided issue Nos.3 and 3D against him and in favour of the appellant.
Learned trial Court while dealing with issues No.3E to 3G regarding maintainability of the suit, cause of action and jurisdiction of the Court, decided all the issues in favour of respondent No.1 and against the appellant.
Ultimately, while deciding issue No.4, the learned trial Court dismissed the suit of respondent No.1, with costs.
5. Aggrieved against the above judgment and decree, an appeal was preferred by respondent No.1, which was accepted by learned Additional District Judge vide judgment and decree dated 15.09.2003.
Learned first Appellate Court while considering issue No.1 came to the conclusion that respondent No.1is recorded as owner in 8 8 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) possession of the suit land on the basis of sale deed dated 13.09.1988, registered on 29.11.1988 (Ex.P2) and his name is recorded in the column of cultivation right from 20.10.1988 uptill the year 1995. It was further observed that agreement dated 08.07.1987 (Ex.P1) executed in favour of respondent No.1 is prior in time than the agreement dated 11.08.1987 (Ex.D2) in favour of appellant. Further observed that sale deed executed in favour of respondent No.1 on 13.09.1988, registered on 29.11.1988 (Ex.P2),is also prior in time than the sale deed 28.05.1993(Ex.D1) executed in favour of the appellant by the vendor.
Learned first Appellate Court while deciding issue No.2, found that judgment and decree dated 02.05.1992 is the result of collusion between the appellant and vendor. Further observed that the Civil Suit No.429 dated 27.10.1987 for permanent injunction was instituted by appellant against the vendor as well as respondent No.1 and in that suit the agreement to sell dated 08.07.1987 was brought to the notice of the appellant and as such, he was having the full knowledge of the same, but intentionally did not implead respondent No.1 as a party in Civil Suit No. 936 of 26.11.1988, resulting into passing of the decree dated 02.05.1992. It was again observed that appellant remained unsuccessful in an appeal against vacation of interim stay vide judgment dated 21.11.1988 (Ex.P10) and suit for permanent injunction was withdrawn by him on 22.12.1988 (Ex.P9), but he has shown ignorance about both these orders.
Learned first Appellate Court while deciding issue No.3 held that judgment and decree dated 02.05.1992 is the result of collusion between appellant as well as vendor; thus, the same are not binding on the rights of respondent No.1 and he is entitled to get the relief of permanent injunction to restrain the appellant as well as vendor from getting the 9 9 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) decree dated 02.05.1992, executed resulting into execution of sale deed on the basis thereof.
While considering issue Nos. 3A and 3B, learned first Appellate Court decided both the issues in favour of respondent No.1 and against the appellant to the effect that principle of lis pendense would not be applicable in view of the facts and circumstances of the present case, as the sale deed executed on 13.09.1988, registered on 26.11.1988 would relate back to the date of execution i.e. 13.09.1988 and at that time, the Civil Suit No.936 was not pending, rather the same had been instituted on 26.11.1988. Ld. first Appellate Court relied upon two reported cases rendered by division benches of this Court; 1972 PLJ 584-Ram Chand and others Vs. Rajinder Kaur and ors.; 1973 CLJ 225-Milkha Singh and others Vs. Tara Singh.
Learned first Appellate Court decided issue No.3C against the appellant and in favour of respondent No.1, while observing that agreement dated11.08.1987 (Ex,D2) is the result of collusion between defendants (appellant and vendor).
Leaned first Appellate Court, in view of the findings of issues No.1, 2, 3A and 3B, decided issue No.3D in favour of the respondent No.1 and against the appellant as well as vendor.
Issue No.3E pertaining to the maintainability of the suit was decided in favour of respondent No.1 and against the appellant as well as vendor.
Since issue No.3Fregarding the cause of action was not pressed by the appellant ,therefore, the same was decided accordingly. 10
10 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) Learned first Appellate Court decided issue No.3G against the appellant and in favour of respondent No.1, while observing that objection regarding jurisdiction of Civil Court is totally false and frivolous.
Ultimately, while deciding issue No.4 regarding the relief clause, allowed the appeal and set aside the judgment & decree dated 02.05.1992, passed by learned trial Court and thus, decreed the suit of respondent No.1 with costs.
6. Hence, the present regular second appeal.
Ld. Senior counsel contended on behalf of the appellant that learned first Appellate Court has committed grave error of law while setting aside the well reasoned judgment and decree passed by learned trial Court. Further submitted that judgment and decree dated 02.05.1992 passed in Civil Suit No. 936 of 26.11.1988 has already attained finality and not challenged by way of an appeal either by respondent No.1 or vendor, thus the sale deed dated 28.05.1993 executed in favour of the appellant is perfectly legal and valid. Again submitted that although sale deed was executed in favour of respondent No.1 on 13.09.1988 , but the same was registered on 29.11.1988; whereas Civil Suit No. 936 was filed by appellant on 26.11.1988, thus, in view of Section 52 of Transfer of Property Act, the same is hit by principle of lis pendense, and in support of his contention relied upon the judgment of Supreme Court in Ram Saran Lall's case (supra). Again submitted that respondent No.1 is not a bonafide purchaser without notice as he contested the earlier suit filed by the appellant while producing agreement to sell dated 08.07.1987, thus, was very well aware about the agreement to sell dated 11.08.1987, executed by the vendor in his favour. He further submitted that execution of agreement dated 11.8.1987 as well as sale deed dated 28.05.1993 in favour of appellant are 11 11 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) duly proved by DW1 and DW2. Lastly submitted that agreement to sell dated 08.07.1987 which is alleged to be the basis for execution of sale deed dated 13.09.1988 (registered on 29.11.1988) in favour of respondent No.1 is not genuine, rather the same is ante-dated.
On the other hand, respondent No.1 opposed the contentions raised on behalf of the appellant and submitted that impugned judgment and decree dated 15.09.2003 passed by learned first Appellate Court are well reasoned and do not require any interference by this Court. Further submitted that sale deed dated 13.09.1988 which was registered on 29.11.1988 would relate back to the date of its execution i.e. 13.09.1988, in view of the two Division Bench judgments of this Court in Ram Chand's case (supra) and Milkha Singh's case (supra), wherein the judgment of Hon'ble Supreme Court in Ram Saran Lall's case (supra) relied upon by the appellant, was also referred. Thus, the plea regarding principle of lis pendense, is not applicable to the facts of the present case.
7. Heard learned counsel for the parties and perused the record.
Before proceeding further, it is necessary to mention here that in view of the judgment of Hon'ble Supreme Court in (2019) 7 SCC 219- Kirori (since deceased) through his LRs. Vs.Ram Parkash and others, framing of substantial question of law is not required while deciding Regular Second Appeal and para10 of the judgment reads as under:-
"The effect of the judgment of the Constitution Bench is that insofar as the State of Punjab is concerned, second appeal does not require formulation of substantial question of law since the Punjab Act would be applicable for the State. Hence, Section100 of the Code would not hold the field having supervening effect."12
12 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) As per the case of respondent No.1 the vendor, entered into an agreement to sell dated 08.07.1987 with him regarding the land in dispute for a total sale consideration of Rs.1,05,000/-, and out of that an earnest money of Rs.25000/- was received by him on the same day and last date for execution of sale deed was fixed on 07.12.1987. Thereafter, vendor received another amount of Rs.30,000/- by way of endorsement dated 05.12.1987 (Ex.P3). Since appellant filed Civil Suit No. 429 on 27.10.1987 for permanent injunction against respondent No.1 and vendor from alienating the land in dispute and obtained interim stay, therefore, sale deed could not be executed in favour of respondent No.1 on the agreed date i.e. 07.12.1987, by the vendor. Record reveals that interim injunction granted in favour of the appellant in Civil Suit No. 429 was vacated by learned trial Court on 07.09.1988. Then, immediately, vendor executed sale deed dated 13.09.1988 in favour of respondent No.1, but the same could not be registered as an appeal was preferred by the appellant against the vacation of interim injunction order dated 07.09.1988. Record further reveals that an appeal against the vacation of interim injunction was dismissed by the then ld. Additional District Judge, on 21.11.1988 (Ex.P10). Thereafter, the sale deed executed on 13.09.1988 was registered in favour of respondent No.1 on 29.11.1988 by vendor and ultimately, the suit for permanent injunction was dismissed as withdrawn by the appellant on 22.12.1988.Appellant filed Civil Suit No. 936 on 26.11.1988 for specific performance against the vendor only, without impleading respondent No.1 as party, despite the fact that he was well aware about the agreement to sell dated 08.07.1987as well as sale deed dated 13.09.1988 Suit was decreed on 02.05.1992 and learned trial Court while decreeing the Civil Suit No.936 also granted the alternative relief for refund of earnest money 13 13 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) in favour of the appellant to the tune of Rs.40,000/- along with damages of Rs.41,000/- . Despite the fact that vendor had already executed the sale deed dated 13.09.1988, registered on 26.11.1988, in favour of respondent No.1, appellant got executed sale deed on 28.05.1993, in his favour, regarding the land in dispute by the vendor, instead of recovering the alternative relief from him. Also noteworthy that possession of land in dispute was already handed over to respondent No.1 by the vendor at the time of registration of sale deed in his favour. In Civil Suit No. 936, neither respondent No.1 was impleaded as a party; nor vendor appeared as a witness as is clear from para 6 of the judgment dated 02.05.1992 and this fact has also been duly noticed by learned first Appellate Court in para 21 of the judgment.
Since respondent No.1 was not a party to Civil Suit No. 936, therefore, any observations made by learned trial Court while passing the judgment & decree dated 02.05.1992 are not binding upon him. Merely examination of the respondent no.1 as a defence witness would not confer him the status as a party to the suit and it is only a party to the suit who has a right of filing written statement, reply, examination or cross-examination of witnesses and to advance arguments, therefore, respondent No.1 is not bound by the findings recorded by the court concerned in the judgment and decree dated 02.05.1992. Therefore, the argument of the appellant that judgment and decree dated 02.05.1992 has attained finality against respondent No.1 is liable to be rejected.
Agreement to sell dated 08.07.1987(Ex.P1) along with writing dated 05.12.1987 (Ex.P3), are duly proved by PW1 Sadhu Singh, PW3 Bant Singh and respondent No.1 himself as PW5 , thus the same cannot be said to be ante-dated and the contention of the appellant to that effect is 14 14 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) liable to be rejected. Execution of sale deed dated 13.09.1988 registered on 29.11.1988 is duly proved by respondent No.1 and moreover, the same is not questioned by the appellant, rather much stress was given by learned senior counsel on the principle of lis pendense, but in view of the Division Bench judgment of this Court in Milkha Singh's case (supra), the sale deed executed on 13.09.1988 registered on 26.11.1988, would relate back to the date of execution i.e. 13.09.1988. At that point of time i.e. 13.09.1988, the stay order granted in Civil Suit No. 429 had already been vacated and an appeal against the vacation of interim order was dismissed by learned District Judge on 21.11.1988. No doubt, the present Civil Suit No. 936 was filed on 26.11.1988, but since the sale deed executed in favour of respondent No.1 would relate back to 13.09.1988, therefore, the principle of lis pendense is not attracted to the facts of the present case. Also necessary to mention here that in Milkha Singh's case (supra), the judgment relied upon by learned counsel for the appellant i.e. Ram Saran Lall's case (supra) was duly referred in para 7 and held that registration of a sale deed would relate back to the date of execution and not from the date of registration. Para Nos.3, 4, 5, 6 and 11 of Milkha Singh's case (supra), being relevant, read as under:-
"3. The facts are not in dispute. It is agreed that the sale-deed, Exhibit D-1 by Ramo in favour of Sohan Singh and others, defendants Nos. 2 to 10 had been executed on 28th October, 1960. This document had been presented for registration on 15th February, 1961, but the same was actually registered on 1st March, 1961. The question for decision is as to when did the title in the property pass to the vendees? Was it on 28th October, 1960, as held by the Courts below or 1st March, 1961, 15 15 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) when the said sale-deed was registered as urged by the learned counsel for the appellants?
4. Learned counsel for the appellants referred to two decisions in this connection viz. Ram Saran Lall and others v. Mst. Domini Kuer and others, AIR 1961 SC 1747 and Ram Chand and others v. Smt. Rajinder Kaur and another, 1972 PLJ 584.
5. Before I come to the authorities mentioned above, I may state that in Punjab when immovable property of the value of Rs. 100/- and upwards is sold, the sale-deed has to be registered. There is no quarrel about the proposition that such a sale-deed will be complete only when it is registered. It is undisputed that the registration will be complete only when the sale-deed is copied out in the records of the Registration Office as provided in Section 61 of the Registration Act. But the title in the property on registration will, however, pass to the vendees from the date when the said deed was executed. This is by virtue of the provisions of Section 47 of the Registration Act, which lay down:
"A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration."
6. A bare reading of this provision will show that the registered document will operate from the time from which it would have commenced to operate, if no registration thereof was required by law and not from the time of its registration. Admittedly, this document, as I have already said, was executed on 28th October, 1960. If under the law, it was not required to be registered, it would have operated from the time it was executed. But it had to be registered under the law and, therefore, under the provisions of Section 47 of the Registration Act, it would operate on the date when it was executed, but that would 16 16 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) happen only if it was subsequently registered. If it was not registered, no title in the property would pass to the vendees under it. However, the moment it was registered the title in the property would pass to the transferees from the date of its executionA..
11. In view of this, it is clear that Ramo had no title in the property on 7th February, 1961, when the compromise took place, because she had already sold the property to the vendees on 28th October, 1960, and the title passed to them on that very date, when the document was later registered on 1st March, 1961. In this situation, the finding of both the Courts below on this point is quite correct."
8. Still further, Hon'ble Supreme Court in 2002 (1) Apex Courts Judgments 373, Gurbax Singh Vs. Kartar Singh and others, held that in view of Section 47 of the Registration Act, 1908, it is well settled that a document on subsequent registration will take effect from the time when it was executed and not from the time of its registration.
Even there is no evidence on record to indicate that on the basis of sale deed dated 28.05.1993, any revenue entry was recorded in favour of the appellant to establish his possession, rather there are repeated entries in the jamabandies and khasra girdwaries to substantiate that respondent No.1 is continuing as owner in possession of the land in dispute since 1988 being a boanfide purchaser. Reference in this regard can be made to mutation dated 29.12.1988 (Ex.P8), Khasra Girdawari (1988 to 1992) (Ex.P11), Copy of Jamabandi for the year 1992-93 (Ex.P12) and Copy of Khasra Girdawari (1993 to 1995) (Ex.P13). Therefore, the contention of the appellant that respondent No.1 is not a bonafide purchaser is also without any substance and liable to be rejected. 17
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9. Above all, appellant, while appearing as DW3 during his cross- examination, categorically admitted that "Amar Singh, plaintiff is in possession of the land in dispute". Conduct of the appellant can be judged from the fact that during his cross-examination, he has shown his ignorance about the dismissal of his appeal against the vacation of interim injunction on 21.11.1988 as well as withdrawal of suit for permanent injunction on 22.12.1988, in the following terms:-
"I do not know if my appeal was dismissed on 21.11.1988."
"I do not know whether the said suit for permanent injunction was dismissed as withdrawn on 22.12.1988".
Thus, there is no hesitation to record that statement made by the appellant during the cross-examination is contrary to the judicial record i.e. Ex.P10 and Ex.P9, respectively and which prima facie virtually amounts to an act of perjury.
10. In view of the discussion made above, the irresistible conclusion would be as under:-
i) Agreement to sell dated 08.07.1987 (Ex.P1 ) in favour of respondent No.1 is prior in time to that of agreement to sell dated 11.08.1987 (Ex.D2) in favour of appellant.
ii) Sale deed dated 13.09.1988 was registered on 29.11.1988 (Ex.P2) in favour of respondent No.1 and he is continuing as owner in possession of the land in dispute since 1988 viz. mutation dated 29.12.1988 (Ex.P8), Khasra Girdawari (1988 to 1992) (Ex.P11), Copy of Jamabandi for the year 1992-93 (Ex.P12) and copy of Khasra Girdawari (1993 to 1995) (Ex.P13). Respondent No.1 filed the present suit on 15.06.1992 and thereafter the sale deed was executed on 28.05.1993 (Ex.D1) in favour of the appellant by the vendor without any right left with him and even there is no revenue record to 18 18 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) substantiate the possession of the appellant, rather during cross-examination, he specially admitted that respondent No.1 is in possession of the land in dispute, therefore, the sale deed dated 28.05.1993 is only a paper transaction as the vendor was not competent to execute the sale deed;
iii) Despite the specific knowledge of agreement to sell dated 08.07.1987 (Ex.P1) and execution of sale deed on 13.09.1988 in favour of respondent No.1, appellant did not choose to implead him as a party in Civil Suit No. 936 dated 26.11.1988, resulting into passing of the judgment and decree dated 02.05.1992 (Ex.P6); whereas in the earlier Civil Suit No. 429 dated 27.10.198, which was dismissed as withdrawn on 22.12.1988, respondent No.1 was impleaded as a party respondent, thus, the judgment and decree dated 02.05.1992 is result of collusion between appellant and vendor, thus, the same is not binding upon the right, title and interest of respondent No.1.
iv) Appellant was also granted the alternative relief to recover the amount of Rs.41,000/- as damages in addition to earnest money of Rs.40000/-, as is clear from para 15 of the judgment dated 02.05.1992, but instead of taking recourse for recovery of alternative relief, he preferred to execute the sale deed dated 28.05.1993 by the vendor without his competency, as he was not the owner of the land in dispute on that date.
11. In view of the conclusion drawn above, it is apparently clear that the judgment and decree dated 02.05.1992 passed in Civil Suit No. 936 of 26.11.1988 are on the basis of collusion between the appellant and vendor, thus being null and void, not binding on respondent No.1 and the consequent sale deed dated 28.05.1993 (Ex.D1) executed by vendor in 19 19 of 20 ::: Downloaded on - 07-06-2020 01:45:24 ::: RSA 5072 of 2003 (O&M) favour of the appellant, would not confer any right, title or interest in his favour.
12. Consequently, this Court has no option except to dismiss the present regular second appeal by upholding the judgment of the learned first Appellate Court.
13. Ordered accordingly.
[MAHABIR SINGH SINDHU]
JUDGE
May 15, 2020
sanjay
Whether speaking/reasoned yes
Whether reportable? yes
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