Allahabad High Court
Krishna Pratap vs Smt. Meenu Devi on 19 August, 2019
Equivalent citations: AIR 2020 ALLAHABAD 41, AIRONLINE 2019 ALL 1499, 2020 (1) ALJ 253, (2019) 9 ADJ 464 (ALL), AIRONLINE 2019 ALL 1828
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved On:-15.07.2019 Pronounced On:-19.08.2019 Court No. - 10 Case :- SECOND APPEAL No. - 236 of 2009 Appellant :- Krishna Pratap Respondent :- Smt. Meenu Devi Counsel for Appellant :- D.C.Mukerjee,Mohd. Aslam Khan,Mohiuddin Khan Counsel for Respondent :- R.K.Srivastava,H.B. Singh,Surya Prakash Singh Hon'ble Ved Prakash Vaish, J.
1. Heard Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Mohd. Aslam Khan, learned counsel for the appellants and Sri H.B. Singh, learned counsel for the respondent.
2. The appellants/defendants have assailed the impugned judgment and decree dated 24.04.2009 passed by learned District Judge, Faizabad, in Civil Appeal bearing No.97 of 2008, whereby the appeal filed by the appellants was dismissed.
3. The respondent, Smt. Meenu Devi was plaintiff whereas the appellants, Sri Krishna Ptatap and Sri Ram Kalap were defendants in the original suit.
4. Succinctly stated that the facts of the present case are that the respondent, Smt. Meenu Devi filed a suit for permanent injunction and cancellation of sale deed dated 02.08.1999 bearing Original Suit No.472 of 1999. The case of the respondent/plaintiff was that appellant No.2, Sri Ram Kalap was very close of her husband; he took a total sum of Rs.68,000/- from the plaintiff's husband as loan on different dates prior to 26.02.1999; he could not repay the said amount and, therefore, appellant No.2 executed a registered sale deed dated 26.02.1999 in her favour in respect of plot No.6 admeasuring 45 feet X 30 feet, (total 1350 square feets) situated at Village Shivnathpur, Pargana Khadasa, Tehsil Bikapur, District Faizabad. On the basis of said sale deed, the plaintiff became bhoomidhar and in possession of the said plot. Defendant No.2, knowingly that he had executed a sale deed dated 26.02.1999 in favour of the plaintiff, prepared a forged document/sale deed dated 02.08.1999 in favour of defendant No.1, Sri Krishna Ptatap. It was alleged that defendant No.2 was left with no right to sell the said land. It was also stated that on the basis of void sale deed in favour of defendant No.1 which was executed in collusion with defendant No.2, defendant No.1 tried to take forcible possession of the aforesaid land and to cut crops. Hence, the plaintiff file a suit for injunction and cancellation of sale deed dated 02.08.1999.
5. The suit was contested by the defendants by filing written statements, the defendants denied the allegations made in the plaint.
6. In the additional statement, it is stated that in paras-2 and 3, the plaintiff has disclosed the two sale deeds which have different boundaries and it is not clear in respect of which property, the plaintiff has filed the suit. The suit is not maintainable in view of Order VII Rule 3 of the C.P.C. It was stated that defendant No.2 is bhoomidhar with transferable rights in respect of plot No.6, which is situated on the western side of Faizabad Raebareli Road, different parts of the disputed plot were sold to different persons, defendant No.2 sold part of disputed plot No.6, admeasuring 12.50 air to defendant No.1, defendant No.2 had sold the northern side of the disputed plot to Sri Uma Shanker Pandey on 28.01.1994; it was alleged that part of property was sold to defendant No.1 on 30.01.1984 for a consideration of Rs.4,000/- and possession was delivered to him and consequently a document on stamp paper of Rs.5/- was handed over to defendant No.1 and defendant No.1 is in occupation of the said land. It was also stated that defendant No.1 had dug for constructing a room on the eastern side of the disputed land, but the construction could not be raised as defendant No.1's wife was suffering from cancer. The disputed land is in occupation of defendant No.1. It was also stated that at that time, all the persons were purchasing the land on a stamp paper of Rs.5/- and no sale deed was registered. It was also stated that the possession of the disputed land was handed over to defendant No.1 on 30.01.1984, defendant No.1 is in continuous occupation of the same and defendant No.1 or any other person never interfered in possession of the plaintiff. It was also stated that the said document dated 30.01.1984 was on a stamp paper of Rs.5/-, defendant No.2 executed a registered sale deed dated 02.08.1999 in favour of defendant No.1 for a consideration of Rs.50,000/- and boundaries of the disputed land is mentioned in the said sale deed. Its was also stated that the plaintiff was never in possession of the disputed land, plaintiff or her husband never paid any amount to defendant No.2 and the sale deed dated 02/03.08.1999 is valid.
7. On pleadings of the parties, following issues were framed by learned trial court:-
"1- D;k okn U;wu EkwY;kafdr gS\ 2- D;k iznRRk U;k;&'kqYd vi;kZIr gS\ 3- D;k okfnuh iz'uxr Hkwfe dh Lokfeuh v/;lhu gS\ 4- D;k okni= esa vfHkdfFkr rF;ksa ds vk/kkj ij fodz;i= 2-8-99 fujLr gksus ;ksX; gS\ 5- D;k okfnuh dksbZ vuqrks"k ikus ds fy, vf/kd`r gS\ 6- D;k okni= ds lkFk }kjk la'kks/ku tksM+k x;k ekufp= ckcr fookfnr Hkwfe] oknh; Hkwfe ds vuq:i gS\"
8. In support of her case, the plaintiff examined Sri Teerathraj as PW-1, Sri Roshanlal as PW-2 and Sri Bhagoti Prasad as PW-3. Defendants examined Sri Ramkalap as DW-1, Sri Ashok Kumar as DW-2, Sri Rajdhar as DW-3, Sri Siyaram Yadav as DW-4, Sri Umashankar as DW-5, Sri Mohd. Naseem as DW-6 and Sri Krishna Pratap as DW-7.
9. Upon consideration of oral and documentary evidence adduced by both the parties, the suit was decreed by learned Civil Judge (Junior Division), Sadar, Faizabad vide judgment and decree dated 29.08.2008. Against the said judgment and decree, the defendants/appellants filed an appeal bearing Civil Appeal No.97 of 2008, the said appeal was dismissed by learned District judge, Faizabad vide impugned judgment and decree dated 24.04.2009.
10. Being aggrieved by the said judgment and decree, the appellants/defendants have preferred the present second appeal.
11. Vide order dated 05.04.2010, my learned Predecessor admitted the appeal on the following substantial questions of law:-
"1. Whether mere reproduction of the points of challenge mentioned in the written arguments, submitted by the parties and without applying its mind to the same already concluding its agreement with the judgment passed by the learned trial court, can be considered to be a judgment according to law passed by the learned lower appellate court, which under law is a final court of law and fact?
2. Whether the judgment passed by the learned lower appellate court is vitiated in law as it dismissed the First Appeal without considering the pleadings, evidence adduced by the parties and with out examining the correctness of the finding on various issues recorded by the learned trial court but simply expressing its agreement with the judgment of the learned trial court without assigning any reason?"
12. Learned Senior Counsel for the appellants contended that the first appellate court decided the appeal without framing points of determination as required by Rule 31 Order XLI of the C.P.C.. According to him, the impugned judgment and decree dated 24.04.2009 passed by the first appellate court is liable to be set aside.
13. Learned Senior Counsel for the appellants also submitted that the first appellate court has dismissed the appeal merely by expressing agreement with the judgment of learned trial court and without assigning any reason.
14. Learned Senior Counsel for the appellants further submitted that the boundaries of the sale deed dated 26.02.1999 and the boundaries of the sale deed of respondent dated 02.08.1999 are different. According to him, the sale deed dated 26.02.1999 in favour of the respondent, Smt. Meenu Devi is not in respect of the property, which was sold by appellant No.2, Sri Ram Kalap to appellant No.1, Sri Krishna Pratap on 02.08.1999.
15. On the other hand, learned counsel for the respondents urged that appellant No.2, Sri Ram Kalap sold the disputed land to the respondent/plaintiff vide registered sale deed dated 26.02.1999 and after selling the disputed land, he had left with no right, title or interest in the disputed land. The subsequent sale deed executed by appellant No.2, Sri Ram Kalap in favour of appellant No.1, Sri Krishna Pratap on 02.08.1999 is not a valid document (document No.10-C/1) as Sri Ram Kalap had no right to sell the same.
16. Learned Counsel for the respondents also submitted that appellant No.2, Sri Ram Kalap had executed a document dated 30.01.1984 in favour of appellant No.1, Sri Krishna Pratap for a consideration of Rs.4,000/- but the said document is an unregistered one and, therefore, no title was passed to Sri Krishna Pratap on the basis of said document.
17. Learned counsel for the respondents further contended that neither the original sale deed dated 02.08.1999 has been filed in the court nor witnesses have been examined to the said sale deed. According to him, the sale deed dated 02.08.1999 is liable to be canceled and there is no ground to interfere in the judgments passed by learned trial court as well as learned first appellate court.
18. I have given my thoughtful consideration to the submissions made by learned counsel for both the parties. I have also gone through the material available on record.
19. A substantial question of law has been interpreted by the Hon'ble Supreme Court in the case of 'Sir Chunilal V. Mehta and Sons Ltd. vs. Century Spinning and Manufacturing Co. Ltd.', AIR 1962 SC 1314 to mean as under:-
"6..........The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law."
20. In another case 'Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and others', (1999) 3 SCC 722, the Hon'ble Supreme Court observed that in the second appeal under Section 100 of the C.P.C, High Court cannot substitute its own opinion for that of the first appellate court, unless it is found that the conclusions drawn by learned lower court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
In the said case, it was observed that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or procedure requiring interference in the second appeal. It was further observed that the trial court could have decided differently is not a question of law justifying interference in the second appeal.
21. When a substantial question of law can be said to have arisen, has been dealt with and considered by the apex court in 'Ishwar Dass Jain (dead) Through LRs. vs. Sohan Lal (dead) by LRs.', (2000) 1 SCC 434. In the said judgment, the Hon'ble Supreme Court has specifically observed as under:-
"10. Now under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11.There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Section 100 CPC after the 1976 Amendment. In Dilbagrai Punjabi v. Sharad Chandra[1988 Supp SCC 710] while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20-8-1981, L.M. Sharma, J. (as he then was) observed that: (SCC pp. 712-13, para 5) "The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case."
In that case, an admission by the defendant tenant in the reply notice in regard to the plaintiff's title and the description of the plaintiff as "owner" of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-consideration of vital evidence and this Court affirmed the said decision. That was upheld. In Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] with reference to a second appeal of 1978 disposed of on 5-4-1991, Venkatachaliah, J. (as he then was) held: (SCC p. 652, para 10) "... where the findings by the court of facts is vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings."
Again in Sundra Naicka Vadiyar v. Ramaswami Ayyar [1995 Supp (4) SCC 534] it was held that where certain vital documents for deciding the question of possession were ignored -- such as a compromise, an order of the Revenue Court -- reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari [(1998) 2 SCC 295] arising out of second appeal of 1988 decided on 15-1-1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not based on earlier notices, was vitiated and the High Court could interfere with such a finding. This was in second appeal of 1988 decided on 15-1-1996.
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh [(1992) 1 SCC 143] it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second appeal of 1981 disposed of on 24-9-1985.
13. In either of the above situations, a substantial question of law can arise. The substantial question of law that arises for consideration in this appeal is:
"Whether the courts below had failed to consider vital pieces of evidence and whether the courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant?"
Point 1 is decided accordingly."
22. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions and considering provisions of Section 100 of the C.P.C., the substantial question of law framed by my learned Predecessor in the present case, as such, cannot be said to be a substantial question of law.
23. On merits, both the questions formulated by my learned Predecessor are inter-connected and are being taken up together. The first submission of learned Senior Counsel for the appellants that the first appellate court decided the appeal without framing points of determination and the same renders the judgment of the first appellate court bad in the eyes of law. To appreciate this issue, it will be appropriate to refer to the provisions of Order XLI Rule 31 of the C.P.C., which reads as under:-
"31. Contents, date and signature of judgment.--The judgment of the Appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
24. The word used by the Legislature under Rule 31 of Order XLI of C.P.C. are to the effect that the order of the appellate court shall be in writing and shall state (a) the point for determination; so the question which is to be considered whether intention of the Legislature while indicating the provisions as provided under Order XLI Rule 31 (a) of C.P.C. is mandatory in nature or not.
25. It is settled rule of law that an appellate court is the final court of facts and, therefore, the first appellate court shall state the points of determination, the decision thereon and the reasons for decision. It is also settled law that mere omission to frame points of determination does not vitiate the judgment if the first appellate court record its reason based on the evidence. The object behind Rule 31 of Order XLI of C.P.C. appears to focus on the contention of the parties and the appellate court in understanding in adjudicating the rival claims.
26. The law relating to powers and duties of first appellate court is well fortified by the legal provisions and judicial pronouncements. The Hon'ble Supreme Court in the case of 'Vinod Kumar vs. Gangadhar', (2015) 1 SCC 391 considered the nature and scope of duty of the first appellate court and it was held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , this Court held as under: (SCC pp. 188-89, para 15) "15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] , wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings.
13. In H.K.N. Swami v. Irshad Basith [(2005) 10 SCC 243] , this Court stated as under: (SCC p. 244, para 3) "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."
14. Again in Jagannath v. Arulappa [(2005) 12 SCC 303] , while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion."
15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy [(2010) 13 SCC 530 : (2010) 4 SCC (Civ) 808] , this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm the findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179 : (2001) 1 SCR 948] , SCC p. 188, para 15 and Madhukar v. Sangram [(2001) 4 SCC 756 : AIR 2001 SC 2171] SCC p. 758, para 5.
5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law."
27. In 'G. Amalorpavam and others vs. R.C. Diocese of Madurai & others', (2006) 3 SCC 224, the Hon'ble Supreme Court after considering the judgment in the case of Santosh Hazari vs. Purushottam Tiwari (2001) 2 SCC 179 held as under:-
"9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC."
28. It will not be out of place to mention here that the Hon'ble Supreme Court in the case of 'Girjanandini Devi and others vs. Bijendra Narain Choudhury', AIR 1967 SC 1124, it was noted as under:-
"12...................It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court. Expression of general agreement with reasons given by the Court decisions of which is under appeal would ordinarily suffice."
29. The Hon'ble Supreme Court in the case of 'G. Saraswathi and another vs. Rathinammal and others', reported in (2018) 3 SCC Page 340 had the occasion to consider the scope and applicability of Order XLI Rule 31 CPC and held as under:-
"10. Time and again, this Court has emphasized on the Courts the need to pass reasoned order in every case which must contain the narration of the bare facts of the case of the parties to the lis, the issues arising the case, the submissions urged by the parties, the legal principles applicable to the issues involved and the reasons in support of the findings on all the issues in support of its conclusion. It is really unfortunate that the Division Bench failed to keep in mind this principle while disposing of the appeal and passed a cryptic and unreasoned order. Such order undoubtedly caused prejudice to the parties because it deprived them to know the reasons as to why one party has won and other has lost. We can never countenance the manner in which such order was passed by the High Court which has compelled us to remand the matter to the High Court for deciding the appeal afresh on merits."
30. Thus, from reading of the aforesaid judgments, it is emerged that the judgment of the first appellate Court must confirm to the mandate of Order XLI Rule 31 CPC as it is a duty cast on the first appellate Court to follow and perform the same. The rules of procedure are made to subserve the ends of justice. A decision of the Court cannot be upset merely on technical or immaterial defects.
31. The spirit of the provision is to ensure that the appellate Court must record reasons for the decisions and is to focus attention of the Court to rival contentions of the parties which arise for determinations and also to offer the litigating parties an opportunity of knowing and understanding the grounds upon which the decision is founded in a view to enable them to know the basis of decision and if they think proper and so advised to avail the remedy of second appeal conferred by Section 100 of the CPC..
32. In the present case, the first appellate court has dealt with all the points and considered the arguments advanced on behalf of the parties and thereafter observed that the sale deed dated 02.08.1999 is in respect of plot No.06 admeasuring 12.50 air and the boundaries have been mentioned; as per sale deed, on northern side there is a constructing house of Sri Siyaram Yadav, on southern side house of Naseem is situated, on eastern side there is Raebareli Faizabad Road and on the western side Saraswati school and house of Sri Shivram Chauhan are situated. In the second sale deed dated 26.02.1999 in respect of Plot No.6 ad-measuring 1350 sq. feet the boundaries are mentioned as on the northern side house of Sri Ramdev Yadav and Sri Sankata Prasad Pandey, on the southern side, house of Yaseen, on the eastern side Faizabad Raebareli road and on the western side School Saraswati Shishu Mandir are situated. In his statement, Sri Roshan Lal (PW-2) has stated that on the northern side of disputed land, house of Sri Ramdev @ Siyaram is situated. The appellants have examined Sri Siyaram Yadav as DW-4; in his cross-examination, he stated that on the northern side of his land, the land of Sri Sankata Prasad is situated. The first appellate court has recorded an independent finding that the sale deed dated 26.02.1999 executed by Sri Ram Kalap in favour of Smt. Meenu Devi is in respect of the same property for which the second sale deed dated 02.08.1999 was executed by appellant No.2, Sri Ram Kalap in favour of appellant No.1, Sri Krishna Pratap. Thus, the first appellate court has essentially complied with the mandatory provisions of Order XLI Rule 31 of the C.P.C..
33. Coming to the facts of present case, appellant No.2, Sri Ram Kalap alleged to have sold the property to appellant No.1, Sri Krishna Pratap on 30.01.1984 for a consideration of Rs.4,000/- and a document was executed on a stamp paper of Rs.5/-. Thereafter, appellant No.2, Sri Ram Kalap sold the land in question to the respondent, Smt. Meenu Devi for a consideration of Rs.68,000/- vide registered sale deed dated 26.02.1999. Later on, appellant No.2, Sri Ram Kalap sold the disputed land to appellant No.1, Sri Krishna Pratap and executed a registered sale deed on 03.08.1999 (in para 3 of the plaint, the date is mentioned as 02.08.1999) for a consideration of Rs.50,000/-. Now the question which comes up for consideration is the effect of document dated 30.01.1984 and whether it confers any right on appellant No.1, Sri Krishna Pratap.
34. At this juncture, it is relevant to consider the provisions of Section 54 of the Transfer of Property Act, 1882, which read as under:-
"54. "Sale" defined.--"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
35. Moreover, Section 17 of the Registration Act, 1908 is a disabling section. The documents defined in clauses (a) to (e) therein required registration compulsorily. Accordingly, the sale of immovable property of the value of Rs.100/- and more requires compulsory registration. Part X of the Registration Act, 1908 deals with the effects of registration and non-registration.
36. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 of the Registration Act, 1908 reads as under:-
"49. Effect of non-registration of documents required to be registered.--No document required by section 17 [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:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [***] or as evidence of any collateral transaction not required to be effected by registered instrument."
37. The main provision in Section 49 provides that any document which is required to be registered, if no registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the Registration Act, 1908 or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered document. Therefore, by virtue of the proviso an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document.
38. In the case of 'K.B. Saha and sons Private Limited vs. Development Consultant Limited', (2008) 8 SCC 564, the Hon'ble Supreme Court, in para 34, summed up the following principles:-
"1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
39. It is well settled law that a person in possession pursuant to a contract for sale does not get title to the land/property unless there is a valid document in his favour. In taking this view, I am fortified by judgment of the Hon'ble Supreme Court in the case of 'State of Andhra Pradesh vs. Mohd. Ashrafuddin', (1982) 2 SCC 1:-
"9. It is by now well settled that a person in possession pursuant to a contract for sale does not get title to the land unless there is a valid document of title in his favour. In the instant case it has already been pointed out that the transferee came into possession in pursuance of an agreement for sale but no valid deed of title was executed in his favour. Therefore, the ownership remained with the respondent transferor. But even in the absence of a valid deed of title the possession pursuant to an agreement of transfer cannot be said to be illegal and the transferee is entitled to remain in possession. If per chance he is dispossessed by the transferor, he can recover possession. The transferor cannot file any suit for getting back possession but all the same he will continue to be the owner of the land agreed to be transferred. The respondent, in our considered opinion, satisfies the conditions contemplated by the definition of the term "holding" and the land transferred by him under a defective title deed will form part of his holding. The High Court, therefore, erred in holding that the land in possession of the transferee cannot be taken to be a part of the holding of the transferor respondent."
40. In the instant case, appellant No.2, Sri Ram Kalap executed a document dated 30.01.1984 in respect of Gata No.06 in favour of appellant No.1, Sri Krishna Pratap, the said document is for a consideration of Rs.4,000/- but the said document is an unregistered document. Admittedly, the document dated 30.01.1984 is in writing and value of the property is worth more than one hundred rupees. Section 54 of the Transfer of Property Act, 1882 would, therefore, exclude the conferment of absolute title by transfer to the transferee/appellant No.1, Krishna Pratap.
41. It is not disputed that the appellant No.2, Sri Ram Kalap executed a sale deed on 26.02.1999 in respect of plot No.06 admeasuring 45 feet X 30 feet, (total 1350 square feets) in favour of respondent, Smt. Meenu Devi (plaintiff) which was duly registered in the office of sub-Registrar. Later on, on 02.08.1999, the appellant No.2, Sri Ram Kalap executed another sale deed in respect of the same property in favour of the appellant No.1, Sri Krishna Pratap. It is not clear when the appellant No.2 had sold the disputed property to Smt. Meenu Devi by virtue of registered sale deed dated 26.02.1999, he was left with no right, title or interest and he was not competent to execute another sale deed in respect of the same property in favour of appellant No.1, Sri Krishna Pratap. That being so, the sale deed dated 02.08.1999 executed by Sri Ram Kalap in favour of Sri Krishna Pratap is liable to be canceled.
42. On the basis of documentary and oral evidence, both the courts below have recorded a concurrent finding that the sale deed dated 02.08.1999 executed by appellant No.2, Sri Ram Kalap in favour of appellant No.1, Sri Krishna Pratap is liable to be canceled. Learned Senior Counsel for the appellants has not been able to point out any illegality or perversity in the findings recorded by both the courts below.
43. In view of the foregoing reasons, the appeal is without any merit, deserves to be dismissed and the same is hereby dismissed. No order as to costs.
44. Interim application(s), if any, stands disposed of.
45. Lower court record be sent back forthwith.
(Ved Prakash Vaish) Judge Order Date :-19th Aug, 2019 cks/-