Allahabad High Court
Balram Singh vs Smt. Kelo Devi on 10 December, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 330 of 2001 Appellant :- Balram Singh Respondent :- Smt. Kelo Devi Counsel for Appellant :- ,Amit,Mohammad Israr Counsel for Respondent :- T.C.Sharma Hon'ble Vivek Agarwal,J.
Heard Sri Amit, learned counsel for the appellant and Sri T.C. Sharma, learned counsel for the respondent.
This Second Appeal has been filed by the defendant being aggrieved of the judgment and decree dated 29.01.2001 passed by learned 5th ADJ, Bijnor whereby learned 5th ADJ, has allowed Civil Appeal No.142 of 2000 filed by the plaintiff arising out of judgment and decree passed in original Suit No.696 of 1996 and has set aside the judgment and decree passed by the Trial Court.
Facts leading to the present appeal are that plaintiff Smt. Kelo Devi had filed a suit for permanent injunction which was registered as original Suit No.696 of 1997. In the said suit, it was alleged that she had entered into an agreement to sale on 23.03.1996 with the defendant and total sale consideration was settled at Rs.14,000/-, which was paid by the plaintiff. In part performance of the agreement, plaintiff was put into possession of the suit land over which she had raised a permanent construction where she is residing along with her family. Besides this for animals, she has put a Chappar, which is used for keeping the animals and storing husk. She has also planted trees in her courtyard and obtained a water connection, but despite several reminders, defendant is not executing the sale deed in her favour. It is also averred that defendant with malicious intention had filed Civil Suit No.395 of 1997 in the Court of Civil Judge (Junior Division), Bijnor seeking permanent injunction against the son of the plaintiff but defendant did not succeed in that. Thereafter, he had moved before the Area Magistrate, Bijnor, under Section- 145 of Cr.P.C. in which possession of the plaintiff has been admitted.
In view of such facts, she sought relief of injunction.
Learned Civil Judge (Junior Division) dismissed the suit filed by the plaintiff and allowed the counter claim of the defendant on the ground that plaintiff could not prove the agreement to sale for a sale consideration of Rs.14,000/- and also could not prove that she was put into possession of the suit property on 23.06.1996. Consequently held that plaintiff is in unauthorized possession of the suit property since 08.07.1997 and decreed the counter claim.
In suit filed by the plaintiff, learned Trial Court found certain minor ambiguities in the statements of the plaintiff's witness and on the basis of such ambiguities has held that the agreement to sale could not be proved. However, it has come on record that P.W.-2- Kelo Devi in her cross examination has admitted that deal was made three days prior to the agreement. She admitted that Balram had though asked for Rs.15,000/- but she had paid only Rs.14,000/-. She further averred that agreement was executed, such deal was made in the afternoon. Therefore, there was no ambiguity in the statements of P.W.-1 and P.W.-2.
Similary, P.W.-3 had though said that date on which deal was made, no payment was made but when statements of this witness, P.W.-3 are read in totality then it reveals that money transaction had taken place and this witness admitted that plaintiff had paid a sum of Rs.14,000/- to Balram. He admits that agreement was executed after Balram had accepted a consideration of Rs.14,000/- and only thereafter he had put his signatures and thumb impression.
Under such facts and circumstances on appreciation of evidence, learned first Appellate Court has reversed the findings of the Trial Court specifically holding that there is nothing in the evidence of P.W.-3- Komal Singh which will go against the interest of the plaintiff.
Learned first Appellate Court has also rejected the contention of D.W.-1, Balram that he is illiterate and does not know how to sign. While doing so learned first Appellate Court has placed reliance on the evidence of P.W.-5-Karan Singh Headmaster of the Primary School certifying vide document No.C-70 that Balram has passed 5th Class.
In support of this contention, document no.C-80 was also filed, which is a photo copy of the school entry register substantiating the fact that Balram is literate and has studied upto 5th class to deny the statement of Balram that he is illiterate and does not know how to sign.
This minute appreciation of evidence by the learned first Appellate Court coupled with the fact that defendant has not examined any independent witness in support of his contention made the first Appellate Court to reach to a conclusion that possession of the plaintiff on the disputed land is on the basis of the agreement dated 23.03.1996 and she is not an Encroacher as has been alleged by the defendant to allege that plaintiff had encroached upon the suit land in July, 1997.
After going through the record and also the evidence of witnesses of the rival parties, it is apparent that the Trial Court erred in not appreciating the evidence of P.W.-5, Karan Singh who has proved that defendant Balram is a literate person and therefore was knowing how to sign a document.
At this stage, it will be relevant to point out that this appeal was admitted on 28.02.2001. The order-sheet of the relevant date reads as under:-
"Admitted.
Issue notice and also call for record. C.A. in a month.
In the meantime, status quo.
Amendment application be kept on record."
It is apparent that appeal was admitted on the following substantial question of law namely:-
"Whether the alleged agreement is not admissible in evidence as provided by Section 17 of the Indian Registration Act.?"
Learned counsel for the appellant has placed reliance on the judgment of Allahabad High Court in case of Durga Prasad Vs. Subedar Singh and another as reported in AIR 1978 Alld. 472 wherein referring to Section 35 of the Evidence Act, it has been held that once the school leaving certificate was duly proved in accordance with law, it was not necessary to produce the Headmaster of the School who had issued the certificate and therefore evidence of P.W.-5 could not have been given much weightage.
Reliance has also been placed on the judgment of Allahabad High Court in case of Dharampal Gir and another Vs. Smt. Angoori Dev as reported in AIR 1981 Alld.164 wherein dealing with provisions contained in Section 17(b) of the Registration Act and Section 92 of the Evidence Act, it has been held as under:-
"A bare perusal of sub-s.(b) of S.17 of the Registration Act shows that other non-testamentary instruments which purport to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest in immovable property of the value of Rs.100 or more has got to be registered. In the instant case the writer of document had clearly stated that she is the absolute owner of the property in dispute and in respect of the aforesaid property she entered into an agreement not to alienate during her lifetime and that the aforesaid property would go to the heirs of the husband after her death. From the aforesaid agreement it is clear that there was no antecedent title admitted in the aforesaid deed in respect of the heirs. The writer of document categorically stated that she is the absolute owner. Therefore, the terms of the agreement clearly create an interest in the disputed property in future in favour of the heirs and would clearly amount to transfer of property in future in favour of the heirs."
Reliance has also been placed on the judgment of Supreme Court in case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others as reported in AIR 1982 SC 989 wherein in para-31, it has been held that to qualify for the protection of the doctrine of part performance, it must be shown that there is a contract to transfer for consideration of immovable property and the contract is evidenced by a writing, signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with the reasonable certainty.
In para-38, it has been held that mere recital is hardly indictive of the change in the nature of possession when there was no evidence to show that authorities were approached by the person claiming to be in possession that he would be liable to pay taxes as owner. Thus, it has held that in the absence of any Overt Act on the part of the person claiming to be in possession to assert his possession as owner a mere recital in the disputed sale deed is of dubious ancillary value.
After hearing of arguments of learned counsel for the parties and going through the records, it is apparent that the reliance has been placed by learned counsel for the appellant on the judgment of Durga Prasad Vs. Subedar Singh and another (supra) is misplaced, inasmuch as, ratio in that case is that, once School Leaving Certificate was duly proved in accordance with law then there was no necessity to produce the Headmaster of the school who had issued the certificate. It cannot be read other way round to infer that if a Headmaster of a school is examined to prove a School Leaving Certificate or School Entry Register, then no weightage can be assigned to such evidence and such evidence requires to be discarded.
Similarly, reliance has been placed on the judgment of Allahabad High Court in case of Dharampal Gir and another (supra) wherein aspect in regard to Section 17(b) of the Registration Act and Section 92 of the Evidence Act have been discussed.
However, in case of Sheth Maneklal Mansukhbhai vs. M/s. Hormusji Jamshedji and sons as reported in AIR 1950 (1) SCR, Hon'ble Supreme Court has held that in terms of the provisions contained in Section 53-A of the Transfer of Property Act; there exists a statutory defence to a person who has no registered title deed in his favour to maintain his possession if, he can prove a written and singed contract in his favour and some action on his part in part performance of that contract. It has further held that the transferee took possession of the property or did any acts in furtherance of the contract then the defence under Section 53-A is available to a person who has an agreement of lease in his favour though no lease has been executed and registered.
Since the agreement executed between the parties though not registered is available on record, it is proof of the transferor agreeing in writing to transfer the property in favour of the plaintiff and therefore for the collateral purposes, such document can be used.
As per Section 54 of the Transfer of Property Act, a contract for the sale of immovable property is a contract that a sale for 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.
Reliance can also be placed on the judgment of Andhra Pradesh High Court in case of Dr. Rayadurgam Gurappa And Anr. vs. Chowdam Kondappa as reported in AIR 2006 A.P. 28 wherein considering the provisions of Section 49 of the Registration (16 of 1908) wherein a non-registered agreement to sale was executed and, thereafter, suit was filed for refund of consideration amount and damages on the ground of lack of marketable title or defective title, it is held that in view of the relief claimed, document could be said to fall under collateral transaction as specified in later part of proviso to Section 49 and document can be received in evidence.
In case of Mattapalli Chelamayya And Another Vs. Mattapalli Venkataratnam as reported in AIR 1972 SC 1121, it has been held that proviso to Section 49 clearly empowers the Court to admit any unregistered document as evidence of a collateral transaction not required to be registered. It is apparent from a conjoint reading of provisions contained in Section 17 of the Registration Act, 1908 and Section 54 of the Transfer of Property Act that it is a deed evidencing sale of a property of value of Rs.100/- or more which is compulsorily registrable. Thus, a document purporting to be evidence of sale is compulsorily registrable and is not admissible for collateral purposes. However, the case of the plaintiff is that on the strength of such agreement to sale she was put into possession of the suit premises. Plaintiff sought mandatory injunction refraining the defendants from evicting her from such premises, treating her to be an encroacher.
The agreement can be accepted in evidence though unregistered as it is an evidence of part performance of a contract as envisaged under Section 53-A of the Transfer of Property Act. Thus, this being the position, plaintiff was entitled to refer to the document though unregistered to prove the collateral transaction and for limited purpose of proving nature of possession as has been held in case of Mahadeva Vs. Commissioner, Mysore City Corporation, Mysore as reported in AIR 2003, Karnataka 217.
Therefore the law laid down by Andhra Pradesh High Court in case of Dr. Rayadurgam Gurappa And Anr. vs Chowdam Kondappa (supra) lays down that the exception to the rigor of Section 49 which ordains that the document which is required to be registered under Section 17 of the Registration Act shall not be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The exception applies to three categories namely, (i) a document may be received as evidence of a contract in a suit for specific performance, (ii) as evidence of part performance of a contract for the purpose of Section 53-A of Transfer of Property Act, 1882: and (iii) as evidence of any collateral transaction not required to be affected by registered instrument. In respect of these three categories of transaction, notwithstanding the fact that the document which is required to be registered has not been registered and, therefore, shall not be received as evidence, can be received as evidence.
As far as three judgments referred to by the learned counsel for the appellant are concerned, judgment rendered in case of Durga Prasad (supra) has no application to the facts of the present case because in that case Hon'ble High Court has held that once ''school leaving certificate' was duly proved in accordance with law then it was not necessary to call the headmaster of the school who had issued the certificate. It does not mean that if headmaster is produced from the school to prove the school leaving certificate then appearance of headmaster will vitiate the evidence of school leaving certificate.
Similarly, in case of Dharampal Gir and another (supra) issue of admissibility of a document for collateral purposes and as proof of part performance has not been considered and therefore it turns on its own facts and facts of that case are not applicable to the facts of the present case.
As far as judgment of Hon'ble Supreme Court in case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others (supra) lays down the law that acts anterior to the contract or merely incidental to the contract would hardly provide any evidence of part performance. Case of Sardar Govindrao Mahadik (supra) also turns on its own facts, inasmuch as, it is not a ruling on the substantial question of law framed while admitting the appeal as to the admissibility of the agreement in terms of the provisions contained in Section 17 of the Indian Registration Act. Therefore, they are of no avail to the appellant.
Reliance can also be placed on the judgment of Madras High Court in case of K. Balaraman and others Vs. Pattammal and others wherein para-12 and 14 deals with the identical situation as enumerated in para-14 of the said judgment which is reproduced below:-
"14. It is evident that where any person contracts to transfer for consideration any immovable property by writing signed by him and in part performance of the contract the transferee has taken possession of the property and continues in possession, then notwithstanding that the contract which was required to be registered has not been registered, the transferor is precluded from enforcing against the transferee any right in respect of that property other than the right expressly provided by the terms of the contract. Hence, the argument of the learned counsel for the appellants that Ex.A1 is inadmissible in law is rejected for the reasons mentioned supra."
In view of such facts and the legal position, substantial question of law framed in this appeal is answered in the following terms namely that the alleged agreement is admissible in evidence for collateral purposes and to prove the possession in terms of part performance of the contract in terms of Section 53-A of the Transfer of Property Act but not as evidence to the transaction of completion of sale.
In above terms, since agreement is admissible for collateral purposes, appeal deserves to fail and is dismissed.
Order Date :- 10.12.2019 Ashutosh