Himachal Pradesh High Court
Bhimu (Deceased) Through Lrs vs Gaura Devi (Deceased) Through Lrs on 9 August, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2024:HHC:6673 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No.7 of 2005 a/w Cross Objections No.36 of 2005 .
Reserved on : 01st August, 2024 Decided on : 09th August, 2024 Bhimu (deceased) through LRs .....Appellants Versus Gaura Devi (deceased) through LRs .....Respondents Coram The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellants : Mr. G.D. Verma, Senior
Advocate with Mr. Sumit
Sharma, Advocate.
For the respondents : Mr. G.R. Palsra, Advocate, for
respondents No.1(a) to 1(f).
Virender Singh, Judge.
The above titled appeal, as well as, the Cross Objections are being decided by a common judgment, as both have been preferred against the judgment and decree dated 29.10.2004, passed by the Court of learned Additional District Judge, Mandi (hereinafter referred to as the 'First Appellate Court'), in Civil Appeal No.44 of 2001, titled as Gaura Devi Vs. Bhimu.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Vide judgment and decree dated 29.10.2004, the appeal preferred by respondent Gaura Devi, has been allowed by the learned First Appellate Court, by granting the following .
relief:
"In view of my findings on point No.1 above, there is merit in the appeal, and the same is allowed. The judgment and decree of the learned trial Court is set aside. The record of the trial Court alongwith copy of the judgment be sent forthwith and file of this Court be consigned to record room after due completion.
3. The said appeal has been preferred, against the judgment and decree dated 30.11.2000, passed by the Court of learned Senior Sub Judge, Mandi, District Mandi, H.P. (hereinafter referred to as the 'trial Court'), in Civil Suit No.43/94, titled as Bhimu Vs. Gaura Devi.
4. Vide judgment and decree dated 30.11.2000, the learned trial Court has decreed the suit for possession, filed by the predecessorininterest of the appellant, by granting the following relief : "22. In the light of my aforesaid findings and discussion on the aforesaid issues for determination, the suit of the plaintiff succeeds and is hereby decreed for possession of the suit land by way of redemption on payment of mortgage money of Rs.1500/. Preliminary decree for possession by way of redemption of the suit land comprising of Khasra Nos.701, 705 and 1120/695 measuring 31017, situated in Mauza Takoli510, Tehsil Sadar, District Mandi, H.P., is hereby passed in favour of the plaintiff and against the defendant on depositing the mortgage money of Rs. 1500/ by the plaintiff within six months from today. A decree of mesnes profit is also hereby ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 3 ( 2024:HHC:6673 ) passed in favour of the plaintiff against the defendant for sum of Rs. 1500/ per year from May, 1994 till the date of actual delivery of possession of the suit land by the defendant to the plaintiff. In case, the plaintiff fails to deposit the mortgage money of Rs.1500/ within six months from today then the suit shall stand .
dismissed. In the peculiar facts and circumstances of the case the parties are left to bear their own cost. Preliminary decree sheet be drawn up accordingly and the file thereafter be consigned to the record room."
4. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as
5. to were, referred to, by the learned trial Court.
Brief facts, leading to the filing of the present appeal, as well as, crossobjections, before this Court, may be summed up, as under: 5.1. Plaintiff Bhimu has filed the suit for redemption of mortgage and possession against the defendant on the ground that he is mortgagor, as land bearing Khasra No.695, 701 and 705, Kittas 3, measuring 3185 bighas situated in Mauza Takoli510, Tehsil Sadar, District Mandi, H.P., has been mortgaged with defendant Gaura Devi on 15.6.1964 for a sum of Rs.1500/.
5.2. According to the plaintiff, no rate of interest was fixed, as, the usufruct of the suit land was enjoyed by the mortgagor. The said mortgage was oral, accompanying by the delivery of possession. Out of the said land, land measuring ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 4 ( 2024:HHC:6673 ) 078 bigha has been acquired by the State of Himachal Pradesh, for the construction of National Highway No.21 on 14.2.1983. As such, the defendant is stated to be in .
possession of land measuring 31017 bighas, in Khasra Nos.701, 705, 1120/696 (hereinafter referred to as 'the suit land').
5.3. It is the further case of the plaintiff that the defendant was requested to accept the mortgage money out of the compensation amount, awarded for acquisition of Khasra No.695/1. According to the plaintiff, a sum of Rs.1500/ i.e., the mortgage money, was offered and sent by Money Order to the defendant, along with notice, to redeem the mortgage and deliver the possession of the land under mortgage to the plaintiff on 14/22.5.1993, but, the defendant has refused to accept the same and even denied the mortgage with her.
5.4. On the basis of the above facts, the plaintiff has claimed that the decree, for redemption of the mortgaged land, be passed, in his favour along with the decree for possession. He has also sought the mesne profit for the period, during which, the possession has not been delivered to him, from the date, when, the plaintiff is stated to be entitled to have possession.
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6. When put to notice, the suit has been contested by defendant, by filing the written statement, wherein, the preliminary objections; that the suit is not maintainable, as .
the matter involved, in the present suit is already pending adjudication in RFA No.3 of 1989, before the High Court; Civil Court has no jurisdiction to entertain and try the present suit; the plaintiff has no locus standi to file the present suit;
the plaintiff has no enforceable cause of action; and the suit is not properly valued for the purpose of Court fee and jurisdiction, have been taken.
6.1. On merits, the suit has been contested on the ground that earlier, the suit land was mortgaged with the defendant, for a sum of Rs.1500/, in the year 1964 and the possession was also delivered to the defendant. Later on, the plaintiff has sold the suit land to the defendant for a sum of Rs.1755/, through a writing dated 8.4.1965. In this regard, revenue entries in Khasra Girdwari, as well as, in the Jamabandi, were also changed. In this way, the defendant has asserted her ownership over the suit land. However, acquisition of a portion of the suit land, measuring 078 bighas, has not been disputed.
::: Downloaded on - 09/08/2024 20:36:17 :::CIS6 ( 2024:HHC:6673 ) 6.2. In the alternative, the defendant had taken a plea that the suit land is in her possession, which is open, peaceful, continuous, exclusive, uninterrupted, hostile and .
notorious possession and in the full knowledge of the plaintiff from 8.4.1965.
6.3. These facts have been pleaded to show that the defendant has become owner of the suit land, by way of adverse possession. She has also challenged the entries in favour of the plaintiff, by stating the fact that the same are wrong, illegal, incorrect, null and void. Rest of the contents of the suit have been denied.
7. On the basis of the above facts, a prayer has been made to dismiss the suit.
8. The plaintiff has filed the replication denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested, by reiterating that of the plaint.
9. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 23.06.1995:
1. Whether the suit land is liable to be redeemed?
OPP
2. Whether the suit is not maintainable, as alleged?
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3. Whether this Court has no jurisdiction to try the present suit? OPD
4. Whether the plaintiff has no locus standi to file .
the present suit? OPD
5. Whether the plaintiff has no cause of action?
OPD
6. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD
7. Whether the defendant is owner of the suit land by way of purchase, as alleged? OPD
8. If Issue No.7, is not proved, whether the defendant is owner of the suit land by way of adverse possession? OPD
9. Whether the plaintiff is entitled to mesne profit as alleged? OPD
10. Relief.
10. Thereafter, the parties to the lis were directed to adduce evidence.
11. After the closure of the evidence, upon hearing the learned counsel for the parties, the learned trial Court has decreed the suit of the plaintiff, vide judgment and decree, as referred to above.
12. Aggrieved from the said judgment and decree, the defendant has preferred the appeal, before the learned First Appellate Court, assailing the judgment and decree passed by the learned trial Court.
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13. Learned First Appellate Court has allowed the appeal and the judgment and decree passed by the learned trial Court has been set aside, by dismissing the suit of the .
plaintiff.
14. Feeling aggrieved from the said judgment and decree, the plaintiff has preferred the present appeal registered, as RSA No.7 of 2005, before this Court, on the ground that the learned First Appellate Court has fallen into error, by holding that the decree for possession cannot be granted, since, by virtue of the adverse possession, the defendant has perfected her title.
14.1. The findings have further been assailed on the ground that the learned First Appellate Court has not considered the fact that the writing, which is stated to be sale deed, was neither stamped nor registered, as required under Section 35 of the Stamp Act and Section 17 of the Registration Act, as such, the same could not be looked into, for any purpose.
14.2. The findings have also been assailed on the ground that since, the document Ex.D3, was not proved, in accordance with law, as such, the same could not be relied upon by the learned First Appellate Court.
::: Downloaded on - 09/08/2024 20:36:17 :::CIS9 ( 2024:HHC:6673 ) 14.3. According to the appellants, the document Ex.D3 is not admissible in law, as such, the learned First Appellate Court, has fallen into an error in holding that from the date of .
the said writing, the possession of the defendant will be admitted to have been adverse.
14.4. Learned First Appellate Court is also stated to have wrongly been relied upon the admission of the plaintiff before the Land Acquisition Officer, where, he had made certain admissions, but, according to the appellant, the said statement has neither been proved, nor, the same has been put to him, when, he had appeared, in the witnessbox, before the learned trial Court.
14.5. Learned First Appellate Court, according to the appellant, has fallen into an error by ignoring the fact that in the statement, recorded before the Reference Court, she has categorically stated that the writing was executed, for the purpose of evidencing the mortgage, created in her favour and she has not deposed that the said writing was with regard to sale.
14.6. On the basis of the above facts, a prayer has been made to allow the appeal, as prayed for.
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15. The appeal has been admitted on the following substantial question of law, on 5.3.2005: "Whether a person admitted to be already in .
possession of the property as mortgagee can be allowed to assert a adverse possession on the basis of a writing which is required to be registered under law?"
15.1. Thereafter, on 23.2.2022, the following additional substantial question of law were framed: "1. Whether the findings recorded by learned Appellate Court are vitiated on account of misreading, misconstruction and misinterpretation of provisions of law, pleadings of the parties as well as entire evidence on record?
2. Whether the defendant having not pleaded the defence of protection and benefit under Section 53 A of the Transfer of Properties Act, as per requirement of provision of law, cannot be given this benefit for the first time in Appeal because the defendant specifically claimed that she purchased the suit land for Rs. 1755/on 8.4.1965?
3. Whether plea of purchase of land in suit by the defendant and acquiring title by way of adverse possession are mutually destructive and as such, not sustainable under law?"
16. On the other hand, by preferring, the cross objections No.36 of 2005, defendant Gaura Devi has assailed the findings of the learned trial Court, on Issue No.7, by virtue of which, learned First Appellate Court has not given ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 11 ( 2024:HHC:6673 ) the specific findings that the defendant has become owner of the suit land, by way of purchase, through Ex.D3, dated 8.4.1965. Highlighting the fact that document .
Ex.D3, does not require any registration and land can be transferred without getting the sale deed registered, a prayer has been made to allow the crossobjections.
16.1. The crossobjections were although, admitted on 5.3.2005, however, the following substantial questions of law were framed on 17.7.2023:
1. Whether document Exhibit D3 requires no registration as prior to 1971 Registration Act was not applicable in Himachal Pradesh?
2. Whether document Exhibit D3 is a complete sale in the eyes of law?"
17. In order to decide the above substantial questions of law, the oral, as well as, documentary evidence, so adduced by the parties, is required to be discussed.
18. After framing the issues, by the learned trial Court, plaintiff Bhimu stepped into the witnessbox and deposed that the suit land was mortgaged with the defendant for a sum of Rs.1500/. He has also deposed that the same was done about 32 years ago, prior to the date, when, he appeared in the witnessbox, i.e., 16.2.1997. He has also ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 12 ( 2024:HHC:6673 ) deposed that the possession was handed over to the defendant, at the time of mortgaging the suit land. According to him, the mortgage was oral, amount was received and .
possession was delivered and thereafter, the defendant had sown crops in it. He has also deposed that the usufruct was adjusted, in the interest, and on depositing the mortgaged money, the possession was to be delivered to him. Portion of the land is stated to have been acquired for the construction of the road. He has also deposed that prior to filing of the suit, notice was served upon the defendant through counsel.
The mortgaged money was also sent to her through Money Order, but, she has refused to accept the same. Thereafter, the suit was filed. According to the plaintiff, the income, from the suit land, was about Rs.10,000/ per annum.
18.1. In the crossexamination, this witness has admitted that the matter, regarding the acquisition of the land, out of the suit land, which was acquired by the PWD, is pending before the High Court. This witness has admitted that defendant has planted fruit bearing trees. The age of those trees is stated to be 1516 years. Voluntarily stated that when, the fruit bearing plants were planted, it was agreed that till the time, the land is mortgaged, mortgagor is ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 13 ( 2024:HHC:6673 ) free to cultivate the same or to use it, as per her wish. He has denied that the suit land was not yielding good crop. He has denied that he has falsely deposed about income of the suit .
land to be Rs.10,000/ per annum. He has denied that in the year 1965, the suit land was sold to the defendant. He has denied that regarding the sale, any writing was prepared.
According to him, in case, any writing is there, the same might have been got prepared by the defendant. In the further crossexamination, this witness has feigned his ignorance with regard to the fact that agreement (Ikrarnama) was written by Khyali. He could not remember that the same was signed by Paltu Ram and Karmu.
19. PW3 Brikkam, has deposed that he remain posted as Patwari, in the area concerned from the year 1963 to 1966. Girdawari entries, regarding Khasra No.695, 701, 705 were entered by him. The same are stated to have been entered as mortgage with Gaura Devi for a sum of Rs.1500/.
According to this witness, the entries were rightly made, as per factual position, on the spot, in the presence of both the parties concerned.
19.1. In the crossexamination, this witness has stated that report, regarding mortgage, was made in the Rojnamcha, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 14 ( 2024:HHC:6673 ) but, the said Rojnamcha, was not produced by him, nor, he could supply the number and date of the Rojnamcha.
According to him, no document, regarding the mortgage, was .
produced before him and as per Khasra Girdawari, for the year 196667, entry of Gaura Devi, regarding the sale for a sum of Rs.1750/, was made, but, again stated that the same was not in his handwriting, nor, he could tell about the name, who has made the said entries.
20. PW5, Devender Kumar, who was posted as Superintendent, District Court, Nahan, has deposed that he was posted as Stenographer in the Court of District Judge, Mandi, in the year 1988. Shri Amar Nath Sharma, was posted as District Judge, Mandi, at that time. This witness has proved the statement, Ex.PW5/A, recorded in Reference Petition No.4 of 1989.
20.1. In the crossexamination, this witness has proved the copy of statement of PW1, as Ex.DX.
21. To rebut this evidence, DW1 Jagdish Kumar, General Power of Attorney of the defendant, appeared in the witness box and deposed that Gaura Devi is his mother. She is stated to be ill, suffering from asthma and unable to move.
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15 ( 2024:HHC:6673 ) According to him, he is acquainted with the facts and circumstances of the present case. The suit land was earlier mortgaged, by the plaintiff, in favour of the defendant, in the .
year 1964 and thereafter, in the year 1965, after receiving a sum of Rs.250/, the suit land was sold for a sum of Rs.1750/ to the defendant.
21.1. This witness has further deposed that writing was made, in this regard, which was got scribed by Khyali Ram through Bhimu Ram, Ruldu Ram and Karmu, who were witnesses. According to this witness, from the year 1965, they are in possession of the suit land. Again stated that his mother is owner in possession of the suit land, out of the same, some area was acquired by the PWD. The Land Acquisition Officer, PWD visited the spot and only four apple trees were found in the acquired land. Payment of the same was made. Bhimu has filed the appeal against the said acquisition, before the Sessions Court. Thereafter, the defendant has filed the appeal, before the High Court. The decision of the appeal, preferred in the High Court, was in their favour. As per the decision of the Court, the defendant was held to be entitled for compensation. According to him, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 16 ( 2024:HHC:6673 ) from the year, 1965, they are owner in possession of the suit land.
21.2. In the crossexamination, this witness has stated .
that the plaintiff is having other piece of land in the village.
No land of Bhimu was acquired, except the suit land.
According to his further deposition, 15 apple saplings and 20 plum saplings, could be planted in one bigha of land. He has disclosed that the age of defendant is 67 years. He could not remember that when the land was mortgaged, at that time, some writing was given to the Patwari. Sale deed was scribed at the house of Ruldu Ram. Amount of Rs.250/ was paid, in the presence of this witness. His mother had appeared before the Court of learned District Judge, in the reference case. He has denied that when compensation was paid to them, plaintiffBhimu had raised objection that he is owner of the suit land, as such, he is entitled for the compensation. He has also objected that the suit land is mortgaged with the defendant. He has admitted that due to the objections of plaintiffBhimu Ram, the compensation amount was neither paid to him nor to them. He has denied that his mother intentionally did not appear, in this case, in order to avoid the ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 17 ( 2024:HHC:6673 ) questions in the crossexamination, regarding the statement, made in the Court of learned District Judge.
22. DW3, D.P. Sambharwal, Land Acquisition Officer, .
has deposed that out of the suit land, some portion was acquired by PWD. During inquiry, under Section 9 of the Acquisition Act, this witness has visited the spot, where, he had written the statement of 22 persons, who were claimants.
During the proceedings, statements of Gaura Devi and Bhimu were also recorded, by the Reader of this witness, under his supervision, as per their version. He has proved the said statement Ex.D2.
22.1. In the crossexamination, this witness, although firstly stated that Ex.D2 was written by him, through Reader, but, he could not disclose about the name of Kanoongo and Patwari, who had written the same. The persons, who made the statements, were not personally known to him. No one had identified them. Voluntarily stated that there was no requirement of their identification. Rest, he has denied all the suggestions put to him.
23. DW5, Prabhat Singh, is the son of Stamp Vendor Jodh Singh. He has identified the signatures of his father, on ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 18 ( 2024:HHC:6673 ) the document Ex.D3. He has also identified the handwriting of his father over this document.
23.1. In the crossexamination, this witness has .
deposed that in his presence, the name of person, who had purchased the stamp paper, has not been mentioned. He has denied that the stamp paper can be purchased in the name of other persons. Voluntarily stated that signature of the purchaser is taken on the record.
23.2. In the further crossexamination, this witness has admitted that the writing, on the backside of the stamp paper, is not in the hand of his father.
24. DW6, Girdhari Lal is the son of Khyali Ram, stamp vendor. He has identified the handwriting of his father, over the document Ex.D3.
24.1. In the crossexamination, this witness has deposed that his father used to maintain the register, regarding the document, prepared by him. He was having the licence of document writer. Gaura Devi was known to his father being neighbour. They were having the cordial relations. In the presence of this witness, a number of documents were prepared by his father.::: Downloaded on - 09/08/2024 20:36:17 :::CIS
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25. DW7, Karam Singh, has deposed that defendant is owner in possession of the suit land. He has identified the signatures of his father over document Ex.D3. The suit land .
is stated to be 3 bighas and 18 biswas. Fruit bearing trees, such as apple and plum, are stated to have been planted there. According to this witness, cultivation of cauliflower and cabbage is being done over the suit land. This witness is treating the defendant as owner of the suit land.
26. DW8, Gulab Singh, Patwari, has proved the Jamabandi Ex.D4 and D6.
27. DW9, Achhar Singh, remain posted as Patwari.
According to him, at the time of spot inspection for Girdwari, on 3.10.1966, suit land was found to have been sold by Bhimu to Gaura Devi and when, he has enquired from Bhimu and Gaura Devi, regarding the suit land, they had disclosed that the suit land has been purchased by Gaura Devi, for a sum of Rs.1750/. On the spot, possession of Gaura Devi was found. In the original record, entries were made by him, regarding the suit land, which was recorded, at the instance of both the parties. Rapat, regarding cultivation, was made on 3.10.1966, and the same was verified by the Kanoogo. He ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 20 ( 2024:HHC:6673 ) has proved the copy of Jamabandi, for the year 194950, as Ex.D7.
27.1. In the crossexamination, this witness has stated .
that the record, brought by this witness, does not pertain to the entries, prior to 20.4.1963, whereas, it pertains to Kharif 1962 till 3.4.1967. In the entries in Khasra No.695, he has written that for the crop Kharif, entries, with regard to Gaura Devi, wife of Basanta, have been made, as purchaser, for a sum of Rs.1750/. He has admitted that he has not entered anything with regard to the presence of Bhimu. According to him, he is not sure that the parties were present there or not.
Voluntarily stated that as per the procedure, entry regarding Girdwari is changed in the presence of and with the consent of both the parties.
27.2. In the next line of crossexamination, this witness has deposed that he cannot state as to whether Bhimu was present there or not. Again stated that Bhimu was present there. He has admitted that if a person sells or transfers the land, rapat is made in the Rojnamcha. According to him, in this regard, entry was made in the register. Apart from this entry, no other entry was made by him. Possession of Gaura ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 21 ( 2024:HHC:6673 ) Devi, as per the register, had started from 9.10.1964 and in the said entry, there was no reference with regard to the sale.
27.3. According to this witness, in entries No.66 and 67, .
the words, "5th September", have been written. The correction of the same has not been done by him. The entries dated
3.10.1966 and 3.4.1967, in the Register, are stated to have been made by him.
28. This is the entire evidence led by the parties.
29. In view of the stand taken by the parties, one thing is not in dispute that the suit land was initially mortgaged by the plaintiff in favour of the defendant for a sum of Rs.1500/ and the same was usufructuary mortgage.
30. However, the defendant had taken the plea of sale and according to the defendant, the writing, in this regard, was made on 8.4.1965, by virtue of which, the plaintiff has allegedly purchased the land for a sum of Rs.1755/.
31. A specific stand has been taken by the plaintiff with regard to the sale, as such, the onus was upon him to prove the said fact.
32. Defendant Gaura Devi, has not stepped into the witnessbox to depose, as per her case. On her behalf, her son has put appearance as DW1, on 29.12.1999 and ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 22 ( 2024:HHC:6673 ) deposed on the basis of the GPA. Although, her son has appeared on her behalf, but, the said witness cannot be expected to depose about the facts, which were in the .
exclusive knowledge of the defendant. As such, her non appearance is fatal for her case.
33. While holding so, the view of this Court is being guided, by the decision of the Hon'ble Supreme Court, in Iqbal Basith and Others Versus N. Subbalakshmi and Others, (2021) 2 Supreme Court Cases 718. Relevant paragraphs 9 and 10, of the said judgment, are reproduced, as under: "9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. The respondents in their written statement claimed ownership and possession of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no.1 did not appear in person to depose, and be crossexamined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no.1 in the circumstances.
10. In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 this Court observed as follows:
::: Downloaded on - 09/08/2024 20:36:17 :::CIS23 ( 2024:HHC:6673 ) "17.....Having not entered into the witnessbox and having not presented himself for cross examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
.
(Self emphasis supplied)
34. The Hon'ble Supreme Court, in Ishwar Bhai C. Patel Alias Bachu Bhai Patel Versus Harihar Behera and Another', (1999) 3 Supreme Court Cases 457, has held that when a party does not present himself/herself for cross examination and refused to enter in the witnessbox in order to refute allegations against him/her, adverse presumption is to be drawn. Relevant paragraphs 17 to 29, of the said judgment, are reproduced, as under: "17. Admittedly respondent No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/ to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for crossexamination, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 24 ( 2024:HHC:6673 ) an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act, 1872.
18. As early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh and another, AIR .
1927 Privy Council 230, took note of a practice prevalent in those days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that the other party may be treated as the witness of the first party. Their Lordships of the Privy Council observed as under: "Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness.
This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal, calling it 'a vicious practice, unworthy of a hightoned or reputable system of advocacy'."
19. They further observed as under: "But in any view her nonappearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case."
20. Their Lordships also took note of the High Court finding which was to the following effect: "It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement."
21. They observed: "Their lordships disapprove of such reasoning. The true object to be achieved by a Court of justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected in all its particulars to crossexamination."
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22. This decision has since been relied upon practically by all the High Courts. The Lahore High Court in Kirpa Singh vs. Ajaipal Singh and others, AIR 1930 Lahore 1, observed as under: .
"It is significant that while the plaintiffs put the defendant in the witnessbox they themselves had not the courage to go into the witnessbox. Plaintiffs were the best persons to give evidence as to the "interest"
possessed by them in the institution and their failure to go into the witnessbox must in the circumstances go strongly against them."
23. This decision was also relied upon by the Bombay High Court in Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97, which observed as under: "It is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to crossexamination and his nonappearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case."
24. The Lahore High Court in two other cases in 1934, namely, Bishan Das vs. Gurbakhsh Singh and Puran Das Chela vs. Kartar Singh took the same view.
25. A Divison Bench of the Patna High Court in Devji Shivji vs. Karsandas Ramji and another, relying upon the decision of the Privy Council in Sardar Gurbakhsh Singh vs. Gurdial Singh and another (supra) and the Madhya Pradesh High Court in Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, have also taken the same view. The Madhya Pradesh High Court also relied upon the following observation of the Calcutta High Court in Pranballav Saha & Anr. vs. Sm. Tulsibala Dassi & Anr.:
"The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny."
26. The Allahabad High Court in Arjun Singh vs. Virender Nath and another, AIR 1971 Allahabad 29, held that : ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 26 ( 2024:HHC:6673 ) "The explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give."
.
27. It was further observed that: "If such a party abstains from entering the witness box it must give rise to an inference adverse against him.
28. A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs. Bhishan Chand and others, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party.
29. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No.2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No.1 in its entirety and passing a decree against the appellant also."
35. Similar view has also been taken by the Hon'ble Supreme Court in S. Kesari Hanuman Goud Versus Anjum Jehan & Ors., 2013(3) ICC 1. Relevant paragraph 13, of the said judgment, is reproduced, as under: "13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC the holder of the power of attorney to "act" on behalf of ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 27 ( 2024:HHC:6673 ) the principal. The word "acts" employed therein is confined only to "acts" done by the powerofattorney holder, in exercise of the power granted to him by virtue of the instrument. The term "acts", would not include deposing in place and instead of the principal. In other words, if the powerofattorney holder has .
preferred any "acts" in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be crossexamined."
(Self emphasis supplied)
36. The Hon'ble Supreme Court, in Vidhyadhar versus Manikrao & Anr., 1999(2) Civil Court Cases 91 (S.C.), has also held that the nonappearance of the party, in the witnessbox, gives an occasion to the Court to draw presumption against such party, by holding that the case, set up by him/her, is not correct. Relevant paragraph 15, of the said judgment, is reproduced, as under: "15. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bom.97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 28 ( 2024:HHC:6673 ) and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., AIR 1974 P&H 7, drew a presumption under Section 114 of the Evidence Act .
against a party who did not enter into the witness box."
37. Learned First Appellate Court has not taken into consideration this material aspect, while allowing the appeal, preferred by defendant.
38. Although, it has been argued by learned counsel appearing for the defendant that the scope of this Court under Section 100 CPC is limited one, but, in view of the decision of the Hon'ble Supreme Court, in Rattan Dev versus Pasam Devi, 2003 (1) ICC 215, this Court, even in regular second appeal, can consider the fact of the nonappearance of the defendant in the witnessbox. Relevant paragraph 4, of the said judgment, is reproduced, as under: "4. In our opinion, the First Appellate Court was bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the Trial Court. While doing so, the First Appellate Court could have taken the factum of the nonexamination of the plaintiff also into consideration. The manner in which the appeal has been disposed of by the First Appellate Court cannot be said to be satisfactory. Non application of mind by the Appellate Court to other material, though available, and consequent failure of the Appellate Court to discharge its judicial obligation, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be heard on merits."
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39. Considering the factual position, in the light of the above settled proposition of law, nonappearance of the .
defendant in the witnessbox is held to be fatal for her case, by drawing the presumption under Section 114 of the Evidence Act, against her.
40. Even otherwise, DW1 Jagdish Kumar, has given his age as 45 years, on 29.2.1999, and the alleged writing was made in the year 1965. Meaning thereby, at that time, he was toddler. Even otherwise, he has not deposed that the said writing was made in his presence.
41. Another fact, which has also rightly been highlighted, by the learned counsel for the appellants, in this case, is that the much relied document, Ex.D3, has not been proved in accordance with the law. Ex.D3 was proved by the defendant by examining DW5, Prabhat Singh, who is son of Jodh Singh, stamp vendor. It is the attested copy of the document. Objection has been raised by the learned counsel appearing for the appellantplaintiff, when, Ex.D3 was put to this witness. However, there is nothing on the file to show that the said objection has been decided by the Court, at any point of time.
::: Downloaded on - 09/08/2024 20:36:17 :::CIS30 ( 2024:HHC:6673 )
42. DW6 is son of scribe, who has allegedly written Ex.D3. Even, in the examinationinchief of this witness, the objection, with regard to the admissibility of the document .
has also been raised. However, the said objection has not been decided by the learned trial Court. Merely, mentioning the fact that the document is directed to be taken on record, subject to its legal value, is not sufficient, as, the objection, regarding the admissibility, has to be decided, by the Court then and there, so that the party producing the same, may take necessary steps to prove the document, as per the law.
43. Learned First Appellate Court has extended the benefit of Section 53A of the Transfer of Property Act to the defendant, on the basis of the document Ex.D3, whereas, no such plea has been taken by the defendant, in this case, as she has not relied upon the document Ex.D3, as agreement to sell, but, on the basis of Ex.D3, she has asserted her claim that she has purchased the suit land for a sum of Rs.1755/.
44. Provisions of Section 53A of the Transfer of Property Act, are reproduced, as under: 53A. Part performance.-- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 31 ( 2024:HHC:6673 ) and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is .
willing to perform his part of the contract, then, notwithstanding that, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
45. Admittedly, the defendant has not filed the suit for specific performance or filed counter claim to protect her possession, rather, she has claimed the benefit of adverse possession over the suit land, in case, her stand of purchasing the suit land vide document Ex.D3, is not proved.
46. The document Ex.D3, bears the recital, as 'Akrarnama', which literally means agreement. Although, in this document, it has been mentioned that Khasra Nos.695, 701, 705, Kita 3, measuring 031805, have allegedly been sold in favour of the defendant. In the document ::: Downloaded on - 09/08/2024 20:36:17 :::CIS
32 ( 2024:HHC:6673 ) Ex.D3, there is no reference, with regard to the earlier mortgage, for a sum of Rs.1500/, by the plaintiff, in favour of the defendant, as, this fact has also been admitted, by the .
defendant, in her written statement to para 1 of the plaint, then, it can safely be concluded that the contents of the document Ex.D3, are not correct.
47. Situation would have been otherwise, had this fact been mentioned, in the document Ex.D3, that the suit land was earlier mortgaged with the defendant, for a sum of Rs.1500/, and after adjusting the said amount, more amount has been paid and land has allegedly been sold.
There is no reference, with regard to the mortgage money of Rs.1500/, as to whether the same has been adjusted or paid to plaintiff, by the defendant, at the time of alleged execution of document Ex.D3.
48. It has rightly been highlighted by the learned counsel for the plaintiff that in the alleged sale, Ex. D3, which was made on 8.4.1965, the material fact regrading the relationship of the parties to the lis, as mortgagor and mortgagee, has not been mentioned, as such, the same goes to the very genuineness of the document, Ex. D3.
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49. Learned First Appellate Court has wrongly concluded that the oral mortgage of the suit land, in favour of the defendant, has been rescinded and annulled by the .
document Ex.D3, whereas, there is even no reference with regard to the earlier mortgage, in the document, which is stated to be sale deed of the suit land.
50. Admittedly, the mortgage, which was made by the plaintiff in favour of the defendant was usufructuary mortgage and there is no limitation for resumption of usufructuary mortgage.
51. While holding so, the view of this Court is being guided by the decision of Hon'ble Supreme Court in Ram Rattan (dead) By LRs. Versus Devi Ram & Others, LiveLaw 2021 SC 562. As such, the findings of the learned First Appellate Court that the possession of the mortgagee become adverse to the mortgager, after lapse of 12 years, do not sustain in the judicial scrutiny by this Court.
52. In this case, a strange plea has been taken, by the defendant, as, on the one hand, she has admitted that the possession to her was delivered, in pursuance of the oral mortgage and thereafter, she has allegedly purchased the ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 34 ( 2024:HHC:6673 ) same vide document Ex.D3, on the other hand, she has taken the plea of adverse possession.
53. The permissive possession cannot be converted .
into the adverse possession. There is nothing on the record that the defendant, who had come in the possession of the suit land, on the basis of oral mortgage, had ever handed over the possession to the plaintiff and thereafter, entered into the suit land, on the basis of Ex. D3.
54. The stand of the defendant, is that the defendant had purchased the suit land, on the basis of document Ex.D3, as such, it cannot be said that she has taken the plea of oral sale. Hence, the defendant cannot claim adverse possession, as, inception of the possession was permissive, by way of oral mortgage and this fact has not been disputed, by the defendant, in her written statement. It is not the case of the defendant that the possession was delivered back to the plaintiff and the same was again taken by defendant, in pursuance of document Ex.D3.
55. The Hon'ble Supreme Court in L.N. Aswathama & Others Versus P. Prakash, (2009) 13 Supreme Court Cases, 229, has elaborately discussed this aspect. Relevant ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 35 ( 2024:HHC:6673 ) paragraphs 16 and 17 of the judgment, are reproduced, as under:
16. The plaintiffs contended that the plea of adverse .
possession put forth by the defendant should fail in view of the inconsistent stands taken by the defendant. It is pointed out that the defendant had specifically contended that he was the tenant of the schedule property from 1962 until he purchased the property on 18.11.1985. According to plaintiffs, this was a case of permissive possession and not adverse possession. It is submitted that the defendant having put forth a case of permissive possession, cannot put forth a plea of adverse possession. It was submitted that even assuming that there was a long and continuous possession for more than 12 years, that by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. According to them, the two pleas being mutually inconsistent, the latter plea could not even begin to operate until the former was renounced. Reliance was placed to the following observations of this Court in Mohan Lal (Dead through LRs) vs. Mirza Abdul Gaffar 1996 (1) SCC 639, made while considering a case where the defendant raised the pleas of permissive possession and adverse possession :
"As regards the first plea, it is inconsistent with the second plea. Having come into possession under the (sale) agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario (not by violence, not by stealth, not by permission). Since the appellant's claim is founded on section 53A (of Transfer of Property Act, 1882), it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant." [emphasis supplied] ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 36 ( 2024:HHC:6673 )
17.The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It .
is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.
56. This view has again been reiterated by a three Judge Bench of Hon'ble Supreme Court in Narasamma and Others versus A. Krishnappa, AIR 2020 Supreme Court 4178. Relevant paragraphs 31 to 34 of the judgment, are reproduced, as under:
31. The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e., whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned counsel for the respondent herein, which succinctly set forth the legal position.
32. In Karnataka Board of Wakf case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the (supra) former is renounced...."
33. The aforesaid judgment in turn relied upon the judgment in Mohan Lal (Deceased) Thr. LRs.10, which observed in para 4 as under:
::: Downloaded on - 09/08/2024 20:36:17 :::CIS37 ( 2024:HHC:6673 ) "4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the .
transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
34. In order to establish adverse possession an inquiry is required to be made into the starting point of such adverse possession and, thus, when the recorded owner got dispossessed would be crucial."
(Self emphasis supplied)
57. The defendant has not taken the plea that the possession was delivered to her, in pursuance of the document Ex.D3. She has relied upon this document, as a Sale Deed and in the absence of any pleadings, the learned First Appellate Court has wrongly held that the defendant is entitled to protect her possession, under the provisions of Section 53A of the Transfer of Property Act.
58. In order to get the benefit of Section 53A of the Transfer of Property Act, the defendant has to plead and prove the essential ingredients and to show her willingness to perform her part of the contract, as per document Ex.D3.
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59. The Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi & Another Versus Pralhad Bhairoba Suryavanshi (dead) by LRs and others, (2002) 3 .
Supreme Court Cases 676, has discussed the provisions of Section 53A of the Transfer of Property Act. Relevant paragraphs 15 to 21 are reproduced as under: "15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53A even if the period of limitation to bring a suit for specific performance has expired.
16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the Act. The necessary conditions are:
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;::: Downloaded on - 09/08/2024 20:36:17 :::CIS
39 ( 2024:HHC:6673 )
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
.
17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.
18. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation.
19. In M.K. Venkatachari & Ors. vs. I.A.R. Arunachalam Pillai & Ors. AIR 1967 Madras, 410, it was held, thus:
"That defence to limitation is a creature of a positive law and, therefore, cannot be extended to cases which do not strictly fall within the enactment. It is an established canon of construction of law of limitation not to enlarge the scope of statutory provisions of limitation by analogy or logic".
20. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 40 ( 2024:HHC:6673 ) for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action.
21. In the present case, it is not disputed that the .
transferee has taken possession over the property in part performance of the contract. It is also not disputed that the transferee has not brought any suit for specific performance of the agreement to sell within the period of limitation. It is also not disputed that the transferee was always and still ready and willing to perform his part of the contract. Further, the view taken by the High Court in judgment under appeal was overruled by the Full Bench of the Bombay High Court in the case of Mahadeo Nathuji Patil vs. Surajbai Khushal Chand Lakkad & Ors. 1994 Maharashtra Law Journal, 1145, which, according to our view, lay down the correct view of law. In that view of the matter these appeals deserve to be allowed."
(Selfemphasis supplied)
60. The Hon'ble Supreme Court in FGP Limited versus Saleh Hooseini Doctor & Another, (2009) 10 Supreme Court Cases 223, has again elaborately discussed the ingredients of Section 53A of the Transfer of Property Act. Relevant paragraphs 21 to 30 are reproduced as under:
"21. There is nothing on record to show that the appellant ever called upon the owner to complete the sale within 3 months from 31.01.1983. In fact the appellant did not take any step for 10 long years and it only became active after the suit was filed by the owner for eviction of the appellant in February 1991. The appellant for the first time wrote a letter dated 19.08.1991 calling upon the owner to complete the sale in terms of agreement dated 20.07.1981. To this letter a reply was sent by the owner on 26.08.1981 refusing to execute the contract in terms of the option of vendor under Clause 5 of the agreement dated 20.07.1981. These facts are admitted in paragraphs 5 to 7 of the plaint filed by the appellant in specific performance suit. It may be mentioned in this ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 41 ( 2024:HHC:6673 ) connection that neither in the eviction suit filed against the appellant nor in the appeal filed by the appellant against the adverse decision passed against it in the eviction suit, the plea of specific performance was either an issue in the suit or a point for consideration in the appeal.
.
22. It is well known that the remedy of specific performance is special and extraordinary in character and is discretionary in nature. From the facts discussed above, it appears that the appellant has not succeeded in making out a strong case on specific performance so as to restrain the respondents from proceeding with their suit for eviction. We, however, make it clear that the observations made by us on the specific performance suit filed by the appellant are tentative in nature. Those observations have been made as submissions have been made before this Court that during the pendency of the appellant's suit for specific performance, the eviction suit should have been stayed. In order to deal with those submissions we have made the observations as aforesaid. But those are tentative and will not affect the merits of the specific performance suit filed by the appellant and which is pending in the Bombay High Court.
23. The submission by the appellant's counsel on part performance of the contract under Section 53A of the Transfer of Property Act also cannot be accepted. Section 53A of the Transfer of Property Act is based upon the equitable doctrine of part performance in English Law. Initially Section 53A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India.
24. Section 53A of the Transfer of Property Act has certain ingredients and, in our judgment, those are: (1) a contract to transfer immovable property;
(2) the transfer should be for consideration;
(3) the contract must be in writing;
(4) it should be signed by or on behalf of the transferor;::: Downloaded on - 09/08/2024 20:36:17 :::CIS
42 ( 2024:HHC:6673 ) (5) the terms of the contract can be ascertained with reasonable certainty from the writing;
(6) the transferee takes possession of the whole or part of the property or if already in possession .
continues in possession;
(7) such taking of or continuance in possession should be in part performance of the contract;
(8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.
25. The rationale of the equitable doctrine of part performance in English Law has been traced in Section 53A by this Court in the case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others. In paragraph 13, page 249 of the report while tracing the said equitable doctrine in the way it has been assimilated in Section 53A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as "evidencing part performance"
must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract.
26. In support of the said conclusion, the learned Judges referred to an Old English decision rendered in the case of Thynne (Lady) Vs. Earl of Glengall. In referring to the said case, the learned Judges quoted the observations therefrom and which are reproduced herein below: (Thynne case, HL p.158) "...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement..."
Relying on the aforesaid principle, the learned Judges in Sardar Govindrao Mahadik (supra) reiterated that the act relied upon by the party invoking the said ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 43 ( 2024:HHC:6673 ) doctrine must be such as by its own force to show the very existence of the same contract.
27. Applying the aforesaid tests, as we must, to the present situation we find that no case for part performance of the contract has been made out. Here .
in the plaint filed in the specific performance suit, the case of the appellant is that it was put in possession of the suit premises pursuant to the tenancy agreement dated 16.07.1981 and not on the basis of any other agreement. If we look at the tenancy agreement, we will not find that the appellant was put in possession under the same. In the said suit no evidence appears to have been led by the appellant to show how it came to the possession of the suit premises. This aspect of the case is quite vague.
28. Apart from that according to the appellant it allegedly paid Rs.5 lacs as sale consideration for the suit premises. As already pointed out in para 2 of the plaint in the specific performance suit, it has been clearly averred that the said amount of Rs.5 lacs was kept in deposit with the original owner of the premises by way of security deposit in terms of tenancy agreement dated 16.07.1981. In any event, the appellant is required to show that it either performed or is willing to perform its part of the contract. But admitted facts of the case are to the contrary.
29. After the execution of the alleged agreement for sale dated 20.07.1981, the appellant was totally silent and it is only after more than 10 years thereafter i.e. on 19.08.1991, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed in February 1991 by the owner.
30. Thus, in the facts and circumstances of this case, the doctrine of part performance under Section 53A cannot be invoked. Therefore, there is no merit in the argument advanced on behalf of by the appellant on that score."
(self emphasis supplied)
61. A plea has been taken that at the relevant time, when, the document Ex.D3 was executed, Transfer of ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 44 ( 2024:HHC:6673 ) Property Act, was not applicable, in the area, where suit land is situated. According to learned counsel for the defendant, the oral sale was permissible, whereas, the plea of oral sale .
has not been taken. Rather, the defendant had taken the plea that the suit land has been purchased vide document Ex.D3. When, the document has been executed, for transferring the land, value of which, admittedly, is more than Rs.100/, then, the same is required to be registered, as per the provisions of Section 17 of the Registration Act, 1908, which read, as under: "17. Documents of which registration is compulsory.(1) 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 nontestamentary 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) nontestamentary 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;
(e) nontestamentary instruments transferring or assigning any decree or order of a Court or any award ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 45 ( 2024:HHC:6673 ) 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 [State Government] may, by order published in the [Official Gazette], exempt from the operation of this subsection any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. (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 (48 of 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 subsection (1) 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) [any document other than the documents specified in subsection (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, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS
46 ( 2024:HHC:6673 ) when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which .
is the subjectmatter of the suit or proceeding]; or
(vii) any grant of immovable property by [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 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 (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 mortgagedeed acknowledging the payment of the whole or any part of the mortgagemoney, 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 RevenueOfficer.
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."
62. In the absence of registration of the document Ex.D3, the same does not convey the title, as per the ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 47 ( 2024:HHC:6673 ) provisions of Section 49 of the Registration Act, which is reproduced as under: .
"49. Effect of nonregistration of documents required to be registered. No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] [Added by Act 21 of 1929, Section 10.] 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:
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 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, or as evidence of any collateral transaction not required to be effected by registered instrument."
63. Their Lordships of Privy Council, in Bank of Upper India, Ltd. Versus Robert Hercules Skinner and Others, A.I.R. (29) 1942 Privy Council 67, have held that though, Transfer of Property Act is not applicable, but, the document, transferring immovable property of value of Rs.100/ or upwards, must be registered. Relevant paragraph of the judgment is reproduced, as under: " In these cases there are five consolidated appeals from five decrees of the High Court at ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 48 ( 2024:HHC:6673 ) Allahabad who varied decrees of the Subordinate Judge, Meerut, in mortgage suits instituted by the appellant. The transactions between the plaintiff bank now in liquidation and the relations of the respondents, and between those relations and the respondents, were numerous, and have been the .
subject of other litigation. But the question to be decided on this appeal, the construction of Section 19 of the Indian Limitation Act, is a simple one, and the point can be discussed upon a concise statement of the facts. At various dates between 1904 and 1912 four brothers, cousins of the respondents, executed five mortgages of properties in Meerut, United Provinces, and in Hissar, Punjab. In one the mortgagors were the four brothers and in four only two of the brothers disposing of their twofifth shares in the properties. Two of the mortgages were expressed to be cash credit loans payable after three months' notice, the others were for periods of five and two years respectively. The last mortgage was given on November 21, 1912. On May 30, 1914, the four brothers and a sister who between them at that date possessed the entire property in the lands in question subject to the mortgages sold to the respondent R.H. Skinner certain of the mortgaged lands, on the terms mentioned in the deed of that date. These properties are all in the Punjab to which the Transfer of Property Act does not apply. Though some doubt has been expressed on the point by the High Court of Lahore in a similar case also heard on appeal before this Board their Lordships have no difficulty in concluding that this document was intended to affect the transfer of the property and should have been registered. In fact it was not. Shortly after the execution of the document R.H. Skinner was given possession of the properties purchased and obtained mutation into his name. In 1924 the respondent R.H. Skinner bought under a money decree obtained by another banking company; against one of the mortgagors a share in some of the mortgaged property situate in the United Provinces."
(Selfemphasis supplied)
64. There is nothing on record to show that the Registration Act was not applicable, at the relevant time. As per Section 1 of the Registration Act, it shall come into force ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 49 ( 2024:HHC:6673 ) on the first day of January, 1909 and there is nothing on the file to show that its operation has been excluded by the State, qua District Mandi.
.
65. In view of the submissions made by learned counsel appearing for the parties, record of land reference No.62 of 1986 (84 of 1988) has also been requisitioned. A futile exercise has been made by learned counsel for the defendant, by drawing the attention of this Court, towards the statement of Bhimu, in the said proceedings. Without confronting the plaintiff with the earlier statement recorded in the proceedings under Section 18 of the Land Acquisition Act, no benefit could be derived by the defendant.
66. Further, in view of the decision of District Judge, Mandi, on 29.12.1998, the entitlement of the compensation has been ordered, subject to the decision of Civil Court, regarding their entitlement. Moreover, the reference proceedings, under Section 18 of the Land Acquisition Act, are by the Court of limited jurisdiction.
67. Hence, the judgment and decree, passed by the learned First Appellate Court suffers from infirmity and illegality and the findings recorded by the learned First Appellate Court fall within the definition of perverse findings, ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 50 ( 2024:HHC:6673 ) as, the same are beyond the pleadings and are result of misreading and misappreciation of the oral, as well as, documentary evidence, available on record.
.
68. The findings, recorded by the learned trial Court, are also liable to be modified, to the extent that the suit of the plaintiff is decreed by passing a decree for possession by way of redemption of the suit land, on payment of mortgage money i.e. Rs.1500/. However, keeping in view the fact that the nature of the mortgage is usufructuary mortgage, as such, the plaintiff is not entitled to mesne profits, as granted by the learned trial Court. Except the relief of mesne profit, the plaintiff is entitled to the remaining relief granted by the learned trial Court.
69. No other point urged or argued.
70. Considering all these facts, all the substantial questions of law, are decided in favour of the appellant/ plaintiff and against the respondent/defendant.
71. Consequently, the appeal is allowed and the counter claim is dismissed. The judgment and decree passed by the learned First Appellate Court, is set aside and the judgment and decree passed by the learned trial Court is ::: Downloaded on - 09/08/2024 20:36:17 :::CIS 51 ( 2024:HHC:6673 ) upheld with the modification, as mentioned above. There shall be no order, so as to costs.
72. Decree sheet be prepared accordingly.
.
73. Record be sent back.
(Virender Singh)
August 09, 2024(ps) Judge
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