Patna High Court - Orders
Bhanso Singh & Ors. vs Chandra Shekhar Singh & Ors. on 9 January, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.174 of 2010
Bhanso Singh & Ors.
Versus
Chandra Shekhar Singh & Ors.
6 9-1-2012Heard Mr. D.K. Singh, learned senior counsel appearing on behalf of the appellants in support of the appeal.
The defendants are the appellants in this appeal against the judgment and decree of affirmance . The plaintiffs filed a suit for declaration of their title over nine decimals of Plot no. 947 mentioned in Schedule-I of the plaint with a further declaration that the defendants have no right of use and enjoyment of any part of the suit land as Rasta. The further reliefs for setting aside the deed of rectification dated 5-6- 1993 and recovery of possession in case of dispossession from the suit land or part of it have also been sought by the plaintiffs.
The material facts of the case of the plaintiffs are that the suit land, which is part of Plot no.947 area 9 decimals had been recorded in the name of three raiyats, namely, Most. Fudo, Umedi Singh and Most. Chulho, out of whom Most. Fudo and Umedi Singh died and the entire nine decimals of land came in possession of Most. Chulho as sole surviving successor. Most. Chulho sold the nine decimals of land of the aforesaid Plot to Baudhi Singh by registered sale deed dated 4-5-1945. The plaintiffs are the descendants of Baudhi Singh. It is the further case of the plaintiffs that by registered sale deed dated 10-7-1056 the predecessors of the defendants purchased Plot no. 948 from Panchawati Devi, but much thereafter they manufactured a deed of rectification in which an area of three decimals of Plot no. 947 has been shown to have been included in the sale deed dated 10-7-1056 and as such the 2 defendants acquired no title over any part of the suit Plot no. 947.
The defendants resisted the claim of the plaintiffs by asserting that Mangar Singh had purchased three decimals of Plot no. 947 from one of the recorded tenants, namely, Umedi Singh by unregistered sale deed dated 1-12-1010 and later on Mangar Singh executed a registered Will to his relative Panchwati Devi on 4-3-1948 with regard to his entire property including three decimals of the suit land. The defendants have based their title on the basis of their purchase of the suit land from Panchwati Devi by registered sale deed dated 10-5-1966 and have justified the execution of the deed of rectification dated 5-6-1993 on the plea that by mistake of the scribe three decimals of the suit land could not be mentioned in the sale deed.
It is significant to note here that defendant nos. 11 and 12 who are sons of Panchwati Devi(the vendor of the defendants) and who have been the executants of the deed of rectification which is the basis of the claim of the defendants over the suit land have in their written statement denied to have any title over Plot no. 947 and also denied to have included the suit land in the deed of rectification. They have specifically alleged that the suit Plot No. 947 has been wrongly mentioned in the deed of rectification at the instance of the defendants in collusion with the scribe of the deed.
Both the courts below after considering the evidence and the submissions of the parties have concluded that the suit Plot no. 947 has been fraudulently mentioned in the deed of rectification(Ext.C) and the defendants have not acquired any title over the suit land on the basis of deed of rectification which has also been declared not to be binding 3 upon the plaintiffs. Further, after finding the plaintiffs to have been dispossessed by the defendants over a portion of the suit Plot no. 947 the plaintiffs have also been granted decree for recovery of possession.
The learned senior counsel appearing on behalf of the appellants has submitted that both the courts below have erred in law in not considering that before the amendment of the Registration Act, the sale deed for the property of the value less than Rs.100/- was not required to be compulsorily registered and as such the unregistered sale deed of the year 1915 should have been taken to be a legally valid document capable of conferring valid title to the purchaser. It has been further urged that both the courts below have also erred in law in not considering the acquisition of title by adverse possession by the defendants, who are admittedly in possession over the suit land since long.Thus, it is the submission of the learned senior counsel that substantial questions of law arise for consideration in this appeal.
After perusing the impugned judgments and considering the submissions on behalf of the appellants ,it is manifest that the defendants' claim over the suit property is based upon the deed of rectification dated 5-6-1993 which in term itself is based upon the unregistered sale deed dated 1-12-1915 said to have been executed by Umedi Singh in favour of Mangar Singh from whom the title over the suit land has been traced to Panchwati Devi(vendor of the defendants). The Transfer of Property Act has been enacted in the year 1882 and section 4 of the said Act reads as follows:
" 4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act.--The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract 4 Act, 1872(9 of 1872) And section 54, paragraphs 2 and 3, sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act[1908(16 of 1908)] From the perusal of paragraph no.2 of section 54 of the Transfer of Property Act it is clear that the transfer of title over an immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument. From the conjoint reading of the aforesaid two provisions there is no doubt that the transfer of title over immovable property valued more than Rs.100/- must be done by a registered document in accordance with the Registration Act. Nothing could be pointed out as to when the relevant amendment in the Registration Act, as asserted by the appellants, has been effected on the basis of which it could have been claimed that the unregistered sale deed of the year 1915 was a valid document of transfer inspite of want of Registration. Moreover, both the courts below on consideration of evidence on record have come to the conclusion that the vendor of the defendants had no title over the suit Plot no. 947 and the heirs of the vendor of the defendants have also disclaimed such title over any part of the suit Plot. Further the defendants cannot also be allowed to raise a plea of acquisition of title by adverse possession over the suit land without giving up their claim of title over the suit land on the basis of the sale deed dated 10-7-56 as both the pleas would be mutually destructive For the foregoing reasons, it is held that no substantial question of law arises for consideration in this appeal and the issues arising between the parties have been determined by concurrent findings 5 of fact. Accordingly, this second appeal is dismissed.
( V. Nath, J.) roy