Chattisgarh High Court
Ramdas vs Nohar Das on 29 April, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No. 299 of 1999
Judgment Reserved on 07.03.2022
Judgment Delivered on 29.04.2022
1. Ramdas S/o Ghasiyadas Aged About 16 Years Minors Through
Natural Guardian Mother Smt. Prembai W/o Ghasiya Das, Aged
About 53 Years, R/o Village Raipura, Tehsil Sakti, District Bilaspur
Madhya Pradesh, Chhattisgarh
2. Munna S/o Ghasiyadas Aged About 15 Years Minor Through Natural
Guardian Mother Smt. Prembai W/o Ghasiya Das, Aged About 53
Years R/o Village Raipura, Tehsil Sakti, District Bilaspur, Madhya
Pradesh
3. Sumitra Bai D/o Ghasiya Das Aged About 25 Years R/o Village
Raipura, Tehsil Sakti, District Bilaspur Madhya Pradesh
4. Amritdas S/o Ghasiya Das Aged About 30 Years R/o Village
Raipura, Tehsil Sakti, District Bilaspur Madhya Pradesh
---- Appellants
Versus
Nohar Das S/o Jandhir Das Mahant Aged About 50 Years R/o
Village Raipura, Tahsil Sakti, District Bilaspur, Madhya Pradesh,
Chhattisgarh
---- Respondent
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For Appellants : Shri Anuroop Panda, Advocate For Respondent : Shri H.B. Agrawal, Sr. Advocate with Ms. Swati Agrawal, Advocate
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Hon'ble Shri Justice Narendra Kumar Vyas CAV Judgment
1. The appellants/defendants have filed the Second Appeal under Section 100 of the C.P.C. challenging the judgment and decree dated 06.01.1999 passed by the learned Additional District Judge, Sakti District - Bilaspur in Civil Appeal No. 14-A/97, by which learned Additional District Judge, Sakti has allowed the appeal setting aside the judgment and decree dated 28.02.1997 passed 2 by the Second Civil Judge Class -2, Sakti, District - Bilaspur in Civil Suit No. 48-A/89 by which learned Second Civil Judge Class- 2 has dismissed the suit on count that the plaintiff has failed to prove their possession.
2. The appeal was admitted on 06.08.1999 on the substantial question of law as under :-
(I) Whether the First Appellate Court has erred in allowing the plaintiff's appeal and decreeing the suit by observing in paragraph 9 of the impugned judgment that the receipt referred to in the trial court's judgment is not available in the record, though the same is very much available in the trial court's record?
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 48-A/89.
4. The plaint averments, in brief, are that plaintiffs have filed civil suit before the Second Civil Judge Class -2, Sakti for declaration of the suit for obtaining the vacant possession of the suit land after demolition of the house constructed on the land described in the Schedule A as also for issuance of permanent injunction restraining the defendants from plaintiff's enjoyment over the door constructed on a part of the land and further restraining them to cause obstruction from interfering with the plaintiff's right. It has been pleaded by the plaintiff that he has purchased the land of Schedule A attached with the land bearing Khasra No. 617 area 0.07 disimal for a sum of Rs. 3000/- vide registered sale deed dated 26.03.1984 from one Preet Kunwar but the defendants have illegally constructed a house on an area of 10x15 feet and have also developed Kolabadi. There was dilapidated construction on the suit land but the defendants denied to make repair of the said dilapidated construction and unnecessary raising dispute, which has necessitated him to file the suit.
5. The defendants have filed their written statement resisting the claim of the plaintiff contending that they have obtained possession of the land from its owner Preet Kunwar by virtue of an agreement dated 05.04.1974 after paying Rs. 530/-. The defendants have also filed a map with the written statement on the pleading that the plaint map is not correct. According to them the house has been constructed by the defendant No. 1 in 1979 3 and since then they are residing in the suit property. It has been specifically pleaded in the written statement that on 18.05.1984 the plaintiff has tried to take possession from the defendants illegally. It was objected by the defendant No. 1 on which the defendant No. 1 was given severe beating on his left hand as a result of which he has become handicapped. A case under Section 325 IPC has also been registered against the plaintiff, therefore, would pray that the suit filed by the plaintiff may kindly be dismissed.
6. During the pendency of the suit Defendant No. 1 Ghasiya expired, therefore, his legal representatives namely Ramdas, Munna, Sumitra Bai, Amrit Das and Prembai were brought on record. As defendants No. 1a, 1b, and 1c were minor, they were represented by their mother Prembai. Since during the pendency of the suit Defendant No. 4 Narbandiya expired and her legal representative was already on record, therefore, her name was deleted.
7. On the pleadings of the parties, learned trial Court has framed as many as 9 issues. The defendants have specifically pleaded that the plaintiff is not in possession of the suit property and in the Kolabadi defendant No. 1 has grown vegetable and since the plaintiff is not in possession of the property, therefore, he is not entitled for mesne profit also and would pray for dismissal of the suit. The plaintiff to substantiate his case has examined Nohardas as PW/1, Leela Das as PW/2 and exhibited documents Sale deed dated 26.03.1984 as Ex.P/1, Map as Ex.P/2 and Kistbandi Khatoini as Ex.P/3.
8. The plaintiff witness PW/1 Nohradas in his examination in chief has reiterated the averments made in the plaint. He was cross- examined wherein he has admitted that the land which is adjacent to the purchased land is not his land. He submitted that he has map, Khasra B along with plaint. Land of Preet Kunwar is 140 feet long and 31 feet wide. Length is in East-West and some part is in North-South direction. He has admitted that the land which he has purchased more than half is vacant and there is some vacant land in the East of the house. He has admitted that the case was initiated before the Tahsildar and attestation was done in his name. He has not filed any document. He has further submitted 4 that with regard to suit property a criminal case under Section 325 IPC was initiated wherein he has been acquitted. He admitted that he has submitted map but he cannot explain which place is vacant as he is less educated. PW2 Leeladas who is witness with regard to preparation of the sale document has submitted that after completion of the writing work Preet Kunwar was explained, thereafter, she has accepted the same and put thumb impression. He has admitted that on Ex.P1 he has put his signature. In the cross-examination he has stated that land of Ghasiya is near suit property and old house of Ghasiya still exists. He has further admitted that house of Ghasiya and Preet Kunwar are adjacent to each other. Plaintiff has not constructed house on the suit property. He has admitted that he is not able to give details of length and width of the suit property. In South land of Ghasiya, in North there is passage, in East Ganpat's house and in West again there is passage.
9. Defendants to substantiate their case have examined Prembai as DW1, Lompat as DW2, Radheshyam as DW3 and Mastram as DW4. Defendant No. 1 examined DW/1 Prembai who has stated that Preet Kunwar is her mother in law in relation who was issueless. Preet Kunwar has 7 dismil land wherein she has constructed Kolabadi. 21 years have already lapsed. The suit property does not belong to Nohardas. Preet Kunwar has made documentation after 3-4 years for construction of house. Preet Kunwar had taken Rs. 530/- from them. Khedu Kenwat has done the documentation. At the time of documentation Preet Kunwar, her husband, Radheshyam and Ghasiya were also present. In the documentation she herself, her husband, Radheshyam, Lompat and Preet Kunwar had put their signature/thumb impression. Nohardas has not taken any possession over the suit property and in the said property Tirathram and Bhanwarmati are residing. The witness was cross examined wherein she has stated that Preet Kunwar and herself were living separately but she stated that house and Kolabadi are one and same. The house was in name of Preet Kunwar and Kolabadi was in name of her father in law. There was no separate land in the name of Preet Kunwar. It is denied that suit property was in the name of Preet Kunwar. It is 5 also denied that the suit property is not in possession of her and her father in law. She is unable to tell on which date money was given to Preet Kunwar. Preet Kunwar had said that within two- three days she will do the registration but she has not done the registration. She has stated that since Preet Kunwar has not done the registration, therefore, registration is not required. As per the documentation in the suit property name of her husband and her son have been recorded. They have given some documents to their counsel and some documents are in her house. She has stated that documents related with construction of house were 21 year prior and have been kept in house or with her lawyers. She has denied that documentation has not been done. She has denied that they are in possession of 10x12 Sq.ft land and rest of the land was in possession of Nohardas. She has stated that mutation proceedings with Tahsildar, Sakti has been done by her husband not by Nohardas. She denied that her husband has lost the case. She has won the case, but she has given the document to her lawyer.
10. DW2 Lompat has reiterated the same stand which has been taken by the defendant and in the cross-examination he has admitted that when the documentation was done, he was in the village, he has not heard about registration of the documentation at the time of writing work. DW3 Radheshyam has stated that Preet Kunwar sold the property to Nohardas at Rs. 530/-. The witness was cross-examined wherein he has admitted that there were tension between plaintiff and defendants with regard to suit property. He has admitted that how much land and which land has been sold has not been explained to Preet Kunwar. Witness DW4 Mastram has stated in his examination in chief that the land adjacent to suit land does not belong to Nohardas. He has stated that house of Nohardas is across the street and plaintiff was never in possession of the suit property. He has stated that how much land is in the possession of anybody he does not recall. He has stated that there is door in the house and courtyard is surrounded by boundary. Nohardas has closed the door of western direction and in the South Nohardas has constructed boundary wall subsequently and this has been done 7-8 years 6 ago. He has stated that this house has been constructed by Ghasiya and Firtu jointly. He has stated that both are fighting for 6-7 disimil land. He has told whether Preet Kunwar has sold the property to Nohardas or not, dispute is still going on. Earlier the suit property was in the name of Bulbul subsequently it has been recorded in the name of Preet Kunwar. There was no documentation work, therefore, he has not advised for registration of sale deed. When dispute arose between the parties Ghasiya has shown the receipt but was not asked about registration.
11. Learned trial Court while examining the objection with regard to existence of Ex.P1 has recorded the finding on 30.01.1997 which is as under :-
"fnukad 17-4-75 dks fy[ks x, nLrkost dh lk{; esa xzkfgrk laca/kh fookn ij rdZ lquk x;k] izfroknh dhs vksj ls vkns'kkuqlkj Lvkai M~;wVh] isukYVh] Hkqxrku fd;s tkus dk dFku fd;k x;k gSA fnukad 17-4-75 ds nLrkost jlhn dk voyksdu fd;k] tks /ku vnk;xh gS ftlesa 10 iSls dh jsosU;q fVfdV yxk gqvk gS] mDr nLrkost lu~ 1975 esa fy[kk x;k gS] ,oa /ku vnk;xh jlhn gksus ls 10 iSls dk yxk;k fVfdV mfpr gS blfy, iqu% mlesa Lvkai M~;wVh dk vkns'k fn;k tkuk mfpr izrhr ugha gksrk gSA mDr nLrkost lk{; esa /ku vnk;xh jlhn ds :i esa gh ekU; fd;k tkosxkA mijksDrkuqlkj vkifRr dk fujkdj.k fd;k x;kA"
12. Learned trial court after appreciating the evidence, material on record dismissed the suit filed by the plaintiff holding that plaintiff before execution of the sale deed Ex.P1 the property was in possession of the defendants and Ex.P3 and P4 have also been produced according to which Preet Kunwar has decided to give suit property on donation to the school after her death, therefore, the documents produced by the plaintiff and defendants are doubtful, receipt dated 05.04.1975 also becomes doubtful, therefore, dismissed the suit. Against that judgment plaintiff has preferred an appeal before the first appellate Court under Section 96 of the CPC and also filed application under Order 41 Rule 27 of the CPC for taking additional documents on record by which plaintiff intended to bring attention order dated 31.04.1987 contending that the document is required for proper adjudication of the case. Learned First Appellate Court vide its judgment and decree dated 06.01.1999 allowed the appeal and set aside the judgment and decree passed by the learned trial Court. The first appellate Court has recorded its finding that the receipt is not in 7 record. As per Section 17 of the Registration Act, 1908 since documents filed by the defendants are unregistered, therefore, it does not give any right to the defendants. Learned appellate Court granted decree by directing the defendants to be restrained from repair and construction of the suit property, neither personally nor through any agent, and hand over the suit property to the plaintiff. Aggrieved with this judgment and decree passed by the leanred first appellate Court, the defendants have preferred this second appeal.
13. While admitting the appeal this Court has framed aforestated substantial question of law.
14. Learned counsel for the defendants would submit that the finding recorded by the learned first appellate Court that the document was not on record is perverse as it is very much available in the records of the trial Court as well as before the appellate Court, therefore, learned first appellate Court should have relied upon the document and should have held that the defendants have purchased the suit property prior to the purchase of property by the plaintiff in the year 1974. To substantiate his contention he would refer to judgment of Hon'ble Supreme Court in case of A. Lewis and Another vs. M.T. Ramamurthy and Others 1 and also in case of FGP Limited vs Saleh Hooseini Doctor and Another 2 and would submit that the defendants are in possession of the suit property and documents with regard to sale has also been executed between Preet Kunwar and defendants, they are still in possession of the suit property, as such it should be held by the learned appellate Court that defendants are entitled for protection granted under Section 53A of the Transfer of Property Act as it amounts to part performance of the contract of sale of immovable property and would refer para 24 of FGP Limited (supra) which reads as under :-
"24. Section 53-A 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;
1 (2007) 14 SCC 87 2 (2009) 10 SCC 223 8 (3) the contract must be in writing;
(4) it should be signed by or on behalf of the transferor;
(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."
15. Learned Senior Advocate for the plaintiff would submit that learned first appellate Court has recorded a finding that though document is not available still it has given a finding that document does not confer any right to the defendants as it is not registered. He would submit that as per Section 17 of the Registration Act, it is necessary for the documents to be registered. He would refer to Section 17 of the Registration Act which is extracted below:
Section 17 in The Registration Act, 1908
17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:9
(2) Nothing in clauses (b) and (c) of sub-section (l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) Any document other than the documents specified in sub-
section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding; or
(vii) any grant of immovable property by 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
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered."
16. Learned counsel for the appellants has tried to call his case under the ambit of Section 53A of the Transfer of Property Act. This Section will not come in the rescue of the appellants. If he has to take benefit of this Section he must plead that he has taken possession of the property in part performance of contract. Perusal of the written statement of the defendants would show 10 that they have neither pleaded before the trial Court nor before first appellate Court.
17. It is not in dispute that plaintiff has purchased the suit property through registered sale deed Ex.P1 dated 26.03.1984 whereas the defendants relied upon the said transaction receipt as Ex.P1 is not registered sale deed. This Court has also searched for Ex.P1 but it was not found in the record of the trial Court. Even otherwise if we examine case of the defendants they have neither pleaded nor adduced any evidence that they have purchased the property through registered sale deed. Defendants have taken defence that they have purchased the property valued at Rs. 530/- which is more than Rs. 100/-, therefore, any transfer of right of the property should be registered as per the provisions of Section 17 of the Registration Act. The defendants have nowhere proved that they have purchased the property through registered sale deed. They have neither mentioned this fact in the written statement nor in their counter claim. Even in the evidence, they have not produced the registered sale deed establishing with regard to fact of purchase of the property. This clearly shows that defendants have not purchased the suit property. Even receipt Ex.P1 does not confer any right to the defendants as it was unregistered document.
18. Hon'ble Supreme Court has also examined the issue of transfer of right of property if sale consideration is more than Rs. 100/- in case of Shyam Narayan Prasad vs Krishna Prasad and Others 3 relevant paragraphs 18 to 22 are extracted below:-
"18. It is clear from this provision that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs.100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.
19. Section 49 of the Registration Act, 1908 provides for the effect of non- registration of the document which is as under:
"49. Effect of non-registration of documents required to 3 (2018) 7 SCC 646 11 be registered.-No document required by section 17 {or by any provision of the Transfer of Property Act, 1882 (4 of 1882)}, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) Be received as evidence of any transaction affecting such property or conferring such power, Unless it has been registered:"
20. Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.
21. In Roshan Singh & Ors. v. Zile Singh & Ors. 1988 (2) SCR 1106, this Court was considering the admissibility of an unregistered partition deed. It was held thus:
"......Section 17(i)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property......Two propositions must therefore flow:
(1) A partition may be affected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of S.91 of the Evidence Act, 1872."
22. It is clear from the above judgment that the best evidence of the contents of the document is the document itself and as required under Section 91 of the Evidence Act the document itself has to be produced to prove its contents. But having regard to Section 49 of the Registration Act, any document which is not registered as required under law, would be inadmissible in evidence and cannot, therefore, be produced and proved under Section 91 of the Evidence Act. Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2."
1219. In the result, the substantial question of law framed by this court is answered against the appellants. This Court finds that there is no illegality or perversity in the judgment and decree passed by the learned appellate Court, therefore, the second appeal filed by the defendants deserves to be and is hereby dismissed.
20. A decree be drawn up accordingly.
21. No order as to costs.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh