Madras High Court
T.Paramasivam vs N.Babu on 16 April, 2008
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16-04-2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN S.A.No.262 of 1999 and C.M.P.No.2225 of 2007 T.Paramasivam .. Petitioner. Versus 1.N.Babu 2.A.Velu Udayar .. Respondents. Prayer: Appeal against the judgment and decree of the Additional District Judge, Villupuram, dated 08.08.2001, made in A.S.No.101 of 2000, confirming the judgment and decree of the Principal District Munsif, Villupuram, dated 14.08.2000, made in O.S.No.522 of 1996. For Appellant : Mr.D.Rajagopal For respondents: Mr.N.Suresh (R1) JUDGMENT
The second appeal has been filed against the judgment and decree of the Additional District Judge, Villupuram, dated 08.08.2001, made in A.S.No.101 of 2000, confirming the judgment and decree of the Principal District Munsif, Villupuram, dated 14.08.2000, made in O.S.No.522 of 1996.
2. For the sake of convenience, the parties in this appeal are hereinafter described as plaintiff and the defendants, respectively, as dealt with by the trial Court.
3. The second defendant in O.S.No.522 of 1996 is the appellant in the present second appeal. The plaintiff, who is the first respondent herein had filed the suit before the District Munsif Court, Villupuram, in O.S.No.522 of 1996, stating that the first defendant therein was the owner of the suit property. As such, he had executed a sale deed in favour of the plaintiff, on 02.01.1993, for a valid consideration of Rs.67,000/-. Since 02.01.1993 and 03.01.1993 were holidays, the sale deed was agreed to be registered on 04.01.1993. However, the first defendant, did not turn up for registration, on 04.01.1993. In spite of repeated requests from the plaintiff, the first defendant had not come for registering the sale deed before the Sub Registrar's office at Valavanur. Therefore, the sale deed was presented for compulsory registration, on 25.2.1993, within the time limit prescribed by law. In spite of notices having been sent to the first defendant, the first defendant did not appear before the Sub Registrar, Valavanur. Hence, the said Sub Registrar had refused to register the sale deed, dated 02.01.1993.
4.1. The plaintiff presented the document before the District Registrar, Villupuram, in accordance with the relevant provisions of the Indian Registration Act, 1908. After accepting the petition presented by the plaintiff in Petition No.5/93, the District Registrar, Villupuram, had issued the statutory notice to the first defendant asking him to show cause as to why the documents should not be registered. On 21.03.1994, the first defendant had appeared before the District Registrar, Villupuram, through his counsel and prayed for further time to file his objections. However, the first defendant had not appeared before the District Registrar, Villupuram for further hearing. After following the necessary formalities, the District Registrar, Villupuram, had issued an order, on 01.12.1994, to register the document, subject to the rules applicable to such registration.
4.2. The second defendant, who is a close relative of both the plaintiff as well as the first defendant, was having full knowledge of the entire transaction between the plaintiff and the first defendant. However, he had colluded with the first defendant and had created a fraudulent sale deed, dated 24.02.1993, alleged to be in his favour. With regard to the entire extent of the lands in the suit survey number, consideration had passed from the second defendant to the first defendant, pursuant to the alleged sale between the first defendant and the second defendant. Having executed a sale deed in favour of the plaintiff, on 02.01.1993, the first defendant had no right to sell the suit property to the second defendant by an alleged sale deed, dated 24.02.1993. Since the alleged sale deed, in favour of the second defendant, dated 24.02.1993, has no legal sanctity, it does not bind the plaintiff in any away. The second defendant is not a bonafide purchaser of the suit property for valuable consideration. The alleged sale transaction is invalid in the eye of law. The plaintiff has the absolute right of ownership over the suit property from the date of execution of the sale deed in his favour, which is dated 02.01.1993, in spite of the fact that the said document had been ordered to be registered by the District Registrar, Villpuram, only on 01.12.1994. Based on the sale deed in favour of the plaintiff, the first defendant ought to have delivered possession of the suit property to the plaintiff. Since the first defendant did not deliver possession of the suit property the plaintiff had issued a notice, on 24.12.1995, to the defendants through his counsel. The first defendant had evaded the receiving of the notice and the second defendant had issued a reply making false and unsustainable claims. In such circumstances, the plaintiff had filed the suit in O.S.No.522 of 1996 before the District Court, Villupuram, praying for the reliefs of declaration and for delivery of possession.
5. In the written statement filed on behalf of the first defendant, it had been stated that the first defendant had executed a sale deed, dated 02.01.93, in favour of the plaintiff, after having received a sum of Rs.67,000/- as consideration. The first defendant had not signed the said document. There was no necessity, whatsoever, for the first defendant to sell the suit property to the plaintiff. It is only with the malafide intention, the plaintiff had presented the alleged sale deed, before the registering authorities, taking advantage of the relationship existing between the plaintiff and the first defendant. There was no notice issued from the Registration Department to the first defendant, nor has the first defendant received any such notice. Therefore, the first defendant had not appeared before the authorities of the Registration Department for any enquiry. On 24.02.1993, the first defendant had sold the suit property to the second defendant for a valid consideration and he had also handed over possession of the suit property to the second defendant. The sale deed had been registered, on 25.02.1993. Only after coming to know of the said sale, the plaintiff had fabricated a pre-dated document alleging it to be a sale deed executed by the first defendant in favour of the plaintiff. Since there is no cause of action in favour of the plaintiff his claims for declaration and for recovery of possession have to be rejected.
6. In the written statement filed on behalf of the second defendant, the claims made by the plaintiff that a sale deed had been executed in his favour, on 02.01.1993, by the first defendant, having accepted a sum of Rs.67,000/- as consideration for the suit property, has been denied. The claims made by the plaintiff that the first defendant had duly executed a sale deed in favour of the plaintiff, on 02.01.1993, and on its registration the title of the suit property vests with the plaintiff, have been denied. On the contrary, it has been claimed that the first defendant had validly executed a sale agreement in favour of the second defendant in respect of 0.5 acres of land, including the suit property, on 21.11.1992, for a valid consideration of Rs.1,60,000/-. The said document had been registered on 24.2.1993. Pursuant to the registration of the sale deed, the parent document relating to the property had been handed over to the second defendant. Based on the sale deed, the second defendant had also been put in possession of the property conveyed through the sale deed. Thereafter, the plaintiff had fabricated a fraudulent sale deed in his favour with regard to the suit property, which is said to be forming part of the property sold to the second defendant. The alleged sale deed had been submitted for compulsory registration without any notice having been issued to the second defendant. Therefore, the alleged sale deed registered in favour of the plaintiff, on 1.12.1994, cannot be held to be binding on the defendants. In such circumstances, the suit filed by the plaintiff, praying for a declaration and for delivery of possession, cannot be sustained in the eye of law.
7. Based on the contentions raised on behalf of the parties concerned, the trial Court had framed the following issues for consideration:
i) Whether the plaintiff is entitled to the relief of declaration as claimed by him?
ii) Whether the sale deed, dated 24.2.1993, in the name of the second defendant is valid and whether it would be binding on the plaintiff?
iii) Whether the second defendant is a purchaser in good faith without prior notice?
iv) Whether the plaintiff is entitled to the relief of recovery of possession?
v) What other reliefs, the plaintiff is entitled to?
7.1 An additional issue had been framed by the trial Court, which is as follows:
vi) Whether the sale deed, dated 2.1.1993, is true and valid.
8. Four witnesses have been examined and five documents were marked on behalf of the plaintiff. Three documents were marked on behalf of the defendants and the second defendant had been examined on behalf of the defendants.
9. On hearing the rival contentions raised on behalf of the plaintiff, as well as the defendants and based on the oral, as well as the documentary evidence available, the trial Court had held that Ex.B-1, which is said to be the sale deed, dated 24.02.1993, executed by the first defendant in favour of the second defendant, is invalid and that it would not bind the plaintiff. The sale deed, dated 02.01.1993, conveying the suit properties in favour of the plaintiff is valid and binding on the defendants. It was also held that the second defendant, was in knowledge of the transactions, that had taken place between the plaintiff and the first defendant and therefore, the sale deed claimed to have been executed by the first defendant in favour of the second defendant cannot be said to have been executed in good faith and therefore, no valid title could have passed from the first defendant to the second defendant with regard to the suit properties.
10. With regard to issues 1,4 and 5, the trial Court had held that according to Section 47 of the Registration Act, 1908, the plaintiff should be deemed to be having the possession of the suit property from 02.01.1993, when the sale deed had been executed by the first defendant in favour of the plaintiff. Therefore, the possession of the suit property by the second defendant is illegal. In such circumstances, the plaintiff is entitled to the reliefs as prayed for in the suit.
11. Aggrieved by the findings of the trial Court, the second defendant in the suit had filed an appeal in A.S.No.101 of 2000, before the Additional District Judge, Villupuram, who had framed the following points for consideration:
i) Whether the plaintiff is entitled to the reliefs prayed for in the plaint?
ii) What is the relief the second defendant, who is the appellant in the appeal, is entitled to?
12. On analysing the points raised, the first appellate Court had confirmed the findings of the trial Court and held that the plaintiff was entitled to the reliefs prayed for in the suit, since the sale deed, dated 02.01.1993, marked as Ex.A-4, is valid and it had conveyed valid title in favour of the plaintiff with regard to the suit property. The alleged sale deed between the first and second defendants, said to have been executed on 24.02.1993 and registered on 25.02.1993, is not valid in the eye of law and that it would not convey valid title in favour of the second defendant. Since the registration of the document executed on 02.01.1993, by the first defendant in favour of the plaintiff, had been compulsorily registered on 01.12.1994, it relates back to the date of its execution, which is 02.01.1993. Therefore, the alleged sale deed, dated 24.02.1993, marked as Ex.B-1, said to be in favour of the second defendant and registered on 25.02.1993, had come into existence later in point of time. Since the second defendant had knowledge of the earlier transaction between the plaintiff and the first defendant, the sale deed executed in favour of the second defendant, cannot be said to be executed in good faith without notice of the earlier transaction.
13. Being aggrieved by the judgment and decree of the Courts below the second defendant in the suit, who had preferred the appeal before the first appellate Court, had come before this Court by way of the present second appeal. The second appeal had been admitted on the following substantial questions of law:
"1) Whether the lower appellate Court was right in acting upon the document Ex.A-1 which was admittedly under-stamped at the time of its execution and presentation before the Sub-Registrar.
(2) Whether a document which is under-stamped at the time of its execution can be received for the purpose of compulsory registration without first collecting the stamp duty and penalty as provided for under Section 35 of the Stamp Act.
(3) Whether an anti-dated document which was subsequently registered gets precedence over the sale deed which is properly executed stamped and registered, prior to the registration of Ex.A-1."
14. The trial Court, while coming to its conclusions for decreeing the suit in favour of the plaintiff, had held that there was no explanation from the second defendant as to why the alleged agreement of sale, dated 21.11.1992, entered into between the first and the second defendants, had not been filed before the trial Court.
15. Though the said agreement had been mentioned in the sale deed executed between the first and the second defendants with regard to the suit property, the date of the agreement had been shown as 21.01.1992. On 21.01.1992, the suit property had not been conveyed to the first defendant from its original owner Natarajan. The first defendant had purchased the property from Natarajan only on 20.10.1992, by a sale deed, marked as Ex.B-3. The trial Court had also found that the plaintiff had sent a legal notice, dated 24.12.1993, to the defendants, with regard to the suit property. The said notice had been marked as Ex.A-1. Though the first defendant had refused to receive the notice, the second defendant had received the said notice and had also sent a reply, dated 15.02.1996, marked as Ex.A-3. In the said reply notice sent through his counsel, the second defendant had not mentioned anything about the alleged agreement of sale entered into between the first and the second defendants. It was also found by the trial Court that the plaintiff and the defendants are all closely related to each other and therefore, the claim made by the second defendant that he had purchased the suit property from the first defendant, by a sale deed, dated 24.02.1993, marked as Ex.B-1, in good faith, without the knowledge of the earlier transaction between the first defendant and the plaintiff cannot be believed. In such circumstances, the trial Court had arrived at its conclusion holding that the plaintiff had sufficiently proved that the first defendant had sold the suit property to the plaintiff by way of a sale deed, dated 02.01.1993, marked as Ex.A-4. It was held that the second defendant in the suit had not proved the validity of the sale deed, dated 24.02.1993, marked as Ex.B-1, based on acceptable evidence. Therefore, the trial Court decreed the suit in favour of the plaintiff, declaring the title in his favour with regard to the suit property and also holding that the plaintiff was entitled to the relief of recovery of possession of the suit property from the defendants.
16. Based on the evidence available, the first Appellate Court had come to the conclusion that the trial Court was right in holding that the sale deed, dated 02.01.1993, marked as Ex.A-4, executed by the first defendant in favour of the plaintiff, is valid. The first appellate Court had found that even though no notice had been issued by the plaintiff asking the first defendant to register the sale deed executed in his favour, the first defendant had initially appeared before the District Registrar, through his counsel, on 21.03.1994, and thereafter, he had not participated in the enquiry. It was held that there is no provision in the Tamil Nadu Registration Act, 1908, stating that a notice is to be issued to the party concerned before moving the registration authorities for compulsory registration of the document.
17. It was also found that the witnesses to the sale deed, executed in favour of the plaintiff, and the scribe who had written the document had been examined and they had deposed in favour of the plaintiff stating that the sale deed, had been executed by the first defendant for a valid consideration. One Bhaskaran, who is the son of the first defendant had also signed the sale deed executed in favour of the plaintiff, as a witness and the said fact had not been denied by the defendants. On the other hand, neither the scribe nor the witnesses to the alleged sale deed, made in favour of the second defendant, had been examined as witnesses. If the first defendant was interested in proving that the sale deed executed by him in favour of the second defendant was valid, he should have appeared before the trial Court to record his evidence. Instead, the first defendant, after having filed a written statement, had remained exparte during the trial. The second defendant had not taken any steps, as required under law, to summon the first defendant to depose in his favour. Though the second defendant had claimed that there was a sale agreement between him and the first defendant, dated 21.11.1992, it had not been filed before the trial Court. The first appellate Court had held that the sale deed, marked as Ex.A-4, in favour of the plaintiff, registered on 01.12.1994, had come into effect from 02.01.1993, which is the date of its execution. Therefore, the first defendant could not have validly sold the suit property to the second defendant by a sale deed, dated 24.02.1993. In such circumstances, the first appellate Court had confirmed the judgment and decree of the trial Court, made in O.S.No.522 of 1996, and consequently, dismissed the appeal filed by the second defendant, in A.S.No.101 of 2000.
18. Mr.D.Rajagopal, the learned counsel appearing on behalf of the appellant in the present second appeal had submitted that the judgment and decree of the Courts below are unsustainable, incorrect and invalid on the various grounds stated in the memorandum of grounds filed along with the second appeal.
19. The main contention raised on behalf of the appellant is that the sale deed, dated 24.02.1993, marked as Ex.B-1, executed by the first defendant in favour of the second defendant, is valid in law. Prior to the execution of the sale deed, an agreement, dated 21.11.1992, had been entered into between the first and the second defendants with regard to the sale of the suit property. Since the date of the agreement was mentioned as 21.01.1992 in the subsequent sale deed, dated 24.02.1993, and the actual date of agreement was 21.11.1992, a rectification deed, dated 03.03.1993, marked as Ex.B-2, had been duly registered showing the correct date of the agreement.
20. If the date of the agreement for the sale of the suit property, entered into between the first and the second defendants, is taken to be 21.11.1992, it is clearly earlier in point of time ,as compared to the alleged sale deed, dated 02.01.1993, marked as Ex.A-4, based on which the plaintiff has claimed title over the suit property. It was further submitted that the plaintiff had presented the sale deed, marked as Ex.A-4, said to be in his favour, for registration before the registering authority only on 25.02.1993. Since the Sub Registrar had refused to register the said document, on 15.3.1993, the plaintiff had filed an appeal to the District Registrar in Appeal Petition No.5/93. The District Registrar had passed an order, dated 1.12.1994, to register the sale deed in favour of the plaintiff. The said document had been registered on 15.12.1994. On the other hand, the sale deed, marked as Ex.B-1, executed by the first defendant in favour of the second defendant, on 24.02.1993, had been registered only on 25.02.1993. If the actual date of registration of a sale deed is taken into consideration, the sale deed executed by the first defendant in favour of the second defendant is earlier in point of time, as compared to the sale deed said to have been executed by the first defendant in favour of the plaintiff. If the registration of a sale deed relates back to the date of the agreement for sale, the sale of suit property in favour of the second defendant should take precedence. Since the sale agreement, dated 21.11.1992, entered into between the first and second defendants, have not been filed before the Courts below, it not been taken into consideration by the Courts while arriving at their conclusions. In such circumstances, the appellant has filed a Civil Miscellaneous Petition before this Court in C.M.P.No.2225 of 2007 to mark additional documents, under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code, 1908, to prove his claims.
21. Mr.N.Suresh, the learned counsel appearing on behalf of the plaintiff, who is the first respondent in the present second appeal, had vehemently contested the claims made on behalf of the appellant. He had submitted that the documents sought to be filed before this Court to be marked as Exs.B-4 to B-14, in O.S.No.522 of 1996, on the file of the District Munsif Court, Villupuram, cannot be permitted at this stage. In filing the said petition, the appellant is attempting to fill up the lacuna in his case. Having failed to mark the said documents before the Courts below, the appellant is attempting to drag on the proceedings, by filing a civil miscellaneous petitions, after losing his case in both the Courts below. If the appellant is permitted to file the documents to be marked as exhibits, it would cause irreparable loss and mental agony to the first respondent as he has not been allowed to enjoy the property, which he had purchased from the first defendant in the suit, by a registered sale deed for a valid consideration, in spite of both the courts below granting the reliefs prayed for by him in the suit in O.S.No.522 of 1996.
22. The plaintiff in the suit and the first respondent in the present second appeal has preferred a Civil Miscellaneous Petition in C.M.P.No.242 of 2007, to amend the plaint seeking for the relief of a direction to direct the defendants to pay future mesne profits from the date of the plaint, in accordance with Order XX Rule 12 of the Civil Procedure Code.
23. The learned counsel Mr.D.Rajagopal, appearing on behalf of the first respondent in the petition and the appellant in the second appeal had refuted the claims made on behalf of the petitioner.
24. The learned counsel appearing on behalf of the appellant had submitted that unless the appellant is permitted to file the sale agreement, dated 21.11.1992, executed by the first defendant in favour of the second defendant in the suit and the appellant in the second appeal, it would cause irreparable loss to the appellant as it goes to the root of the matter. Having purchased the suit property from the first defendant for a valid consideration, in good faith, without the knowledge of the transaction alleged to have taken place in favour of the second defendant, the appellant should not be allowed to suffer the loss. Therefore, it is prayed that this Court may be pleased to permit the appellant to file the documents to be marked as Exs.B-4 to B-14 and to remit the matter back to either the trial Court or the first appellate Court for the parties to let in evidence with regard to the said documents or in the alternative this Court may call for the findings with regard to the specific issues raised, based on the said documents, keeping the second appeal pending.
25. The learned counsels appearing on behalf of the appellant as well as for the first respondent had relied on the various decisions of the Courts of law to advance their arguments, with regard to the effect of Sections 47-K and 75 of the Registration Act, 1908, relating to the status of a registered document.
26. The main contention of the learned counsel appearing on behalf of the appellant is that both Sections 47 and Clause 3 of Section 75 of the Act should be read together and while doing so, the only meaning that could emerge from such reading of the Sections is that every registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
27. In such a case, the sale deed, dated 24.02.1993, marked as Ex.B-1, registered, on 25.2.1993, by the first defendant in favour of the second defendant would have precedence over the sale deed executed, on 02.01.1993, marked as Ex.A-4, said to have been registered by the first defendant in favour of the plaintiff, as it had been registered only on 15.12.1994. In fact the sale deed, dated 24.2.1993, registered on 25.2.1993, marked as Ex.B-1, relates back to the date of the agreement for sale, which is 21.11.1992.
28. The learned counsel appearing on behalf of the appellant had submitted that the appellant would be put to irreparable loss if the sale agreement, dated 21.11.1992, is not permitted by this Court to be marked as an exhibit. The learned counsel had submitted that the sale deed, dated 24.2.1993, executed by the first defendant in favour of the second defendant, was pursuant to an earlier agreement, dated 21.11.1992. Since in the sale deed, dated 24.2.1993, marked as Ex.B-1, the date of the earlier agreement had been wrongly mentioned as 02.01.1992, instead of 21.11.1992, a rectification deed, dated 3.3.1993, marked as Ex.B2, had been executed. Even though the agreement, dated 21.11.1992, had not been marked before the trial Court or before the lower appellate Court, the fact of execution of an agreement prior to the execution of the sale deed, dated 24.2.1993, cannot be disputed. In such circumstances, this Court ought to permit the appellant to file the agreement, dated 21.11.1992, in the present second appeal to meet the ends of justice. Along with the agreement, dated 21.11.1992, the appellant seeks permission of this Court to mark certain other documents by way of a petition filed before this Court in C.M.P.No.2225 of 2007.
29. It has been further contended by the learned counsel for the appellant that under Order XLI Rule 27 of the Civil Procedure Code, the Appellate Court can receive additional evidence if the Court considers that they are needed in the interest of justice. In support of his contention, the learned counsel had relied on the decision reported in K.Venkataramiah Vs. A.Seetharama Reddy (AIR 1963 Supreme Court 1526), wherein, it has been held as follows:
"16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court requires such evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause.". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R.27(1) (b) of the Code."
30. The learned counsel had also relied upon a decision of the Apex Court reported in Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and others (1994 (4) SCC 659), wherein it had been held as follows:
"4. Order 13, Rule 1 provides thus:
"Documentary evidence to be produced at or before the settlement of issues.-(1)The parties or their pleaders shall produce, at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court and all documents which the Court has ordered to be produced.
(2) The Court shall receive the document so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs:"
It is clear from its bare reading that the parties or their counsel shall be required to produce all the documentary evidence in their possession or power which they intend to rely on to establish their right along with pleadings or before settlement of the issues. The Court is enjoined under sub-rule (2) to receive such documents provided they are accompanied by an accurate list thereof prepared in the prescribed form. If they are not in the party's possession or custody, it shall be filed by the party along with an application to condone the delay in filing them. The explanation for delay is not as rigorous as one filed under Section 5 of the Limitation Act. These documents were not in the possession or custody of the appellants, but they have obtained certified copies from the Revenue Authorities and sought to be produced. It is undoubted that there is a delay in production of the said documents. But the trial Court had stated that the application was filed at the stage of arguments, seeking to produce those documents and sought to rely upon the documents. It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the Court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27 CPC the appellate Court would receive the documents and consider their effect thereof. When such ist he position, when the documents are sought to be produced in the trial Court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy. Under these circumstances, the trial Court was not justified in refusing to condone the delay and to receive the documents. The High Court also committed the same error in not considering the effect in this behalf in the right perspective. The orders are accordingly set aside and the delay in filing the documents is condoned. The trial Court is directed to receive the documents, give an opportunity to the parties to prove the documents and if necessary, opportunity to the respondent to rebut the same and then dispose of the reference according to law."
31. The learned counsel had also relied on the decision reported in Bole Naidu Vs. N.Kothandarama Pillai and others (100 L.W 750), wherein it had been held that the appellate Court has power under Order 41, Rule 27 of the Civil Procedure Code, to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause".
32. The learned counsel appearing on behalf of the appellant had submitted that there could be no dispute with regard to the legal position that a document, once registered, takes effect from the date of its execution when it has been registered in the normal course under Section 47 of the Registration Act, 1908. However, the same principle may not be applied in the case of a document, registered by virtue of the provisions of Section 75 of the Registration Act, 1908. Sub Section (3) of Section 75 of the Registration Act, 1908, makes it clear that when a document is registered by compulsory registration, the registration shall take effect as if the document had been registered when it was first duly presented for registration. If there is no difference in respect of the effect of the date of the documents registered in the normal course under Section 47 of the Registration Act, 1908, and those which are compulsorily registered, under Section 75 of the Registration Act, 1908, there will not be any need for incorporating sub Section (3) of Section 75 of the Registration Act, 1908. Therefore, a document registered under Section 75 of the Registration Act, 1908, shall take effect from the date on which it was duly presented for registration.
33. In the present case, admittedly, Ex.A-4 was presented for compulsory registration, on 25.2.1993. As it was refused by the Sub Registrar, the District Registrar, Villupuram, by an order, dated 01.12.1994, marked as Ex.A-5, ordered the sale deed, dated 02.01.1993, marked as Ex.A-4, to be registered and it was registered on 15.12.1994. The sale deed, dated 21.11.1992, made in favour of the second defendant, marked as Ex.B-1, had been executed on 24.2.1993. It was registered in the normal course, on 25.2.1993, one day prior to the presentation of the sale deed, dated 02.01.1993, for compulsory registration. Applying the provisions of Section 47 and 75(3) of the Registration Act, 1908, Ex.B-1 comes into effect from 24.2.1993 and Ex.A-4 comes into effect from 25.2.1993 and therefore, the sale deed in favour of the second defendant will have precedence over the sale deed alleged to have been executed in favour of the plaintiff.
34. The learned counsel appearing on behalf of the first respondent had submitted that such a contention raised by the learned counsel for the appellant need not be considered at this stage of the hearing of the second appeal for the reason that Since if this Court is of the view that the appellant cannot be permitted to mark the documents, including the alleged sale agreement, dated 21.11.1992, at this stage, the contentions raised on behalf of the appellant, with regard to Sections 47 and 75(3) of the Act, would be a mere academic exercise. It was further submitted by the learned counsel for the first respondent that in spite of the appellant being aware of the necessity to file the documents, including the alleged sale agreement, dated 21.11.1992, he has chosen not to do so. In such a case, when the appellant had not filed the documents, said to be in his favour, before the courts below, he cannot be permitted to file them at this stage of the second appeal as it would cause great prejudice and irreparable loss to the respondents in the present second appeal. This Court ought to draw adverse inference against the appellant for not filing the documents, sought to be filed in the present second appeal.
35. On analysing the rival contentions raised on behalf of the parties concerned and on a perusal of the records available, and in view of the decisions cited before this Court, it is clear that the appellant has sought to file certain documents before this Court, by filing the petition in C.M.P.No.2225 of 2007, as he has failed to file them before the Courts below.
36. It is also clear that, even though the appellant had knowledge of the existence of the said documents, he has chosen not to mark them as documentary evidence before the trial Court as well as the first Appellate Court. Even though this Court has the power, under Order XLI Rule 27 of the Civil Procedure Code, 1908, to permit marking of documents at this stage in the interest of justice, this Court is of the considered view that such a necessity does not arise in the present case. The appellant has not been in a position to give a sufficient reason or an acceptable explanation as to why he could not mark the documents said to be in his favour at an earlier stage. When both the courts below, after carefully analysing the evidence on record, had found that the first defendant had sold the suit property to the plaintiff in the suit for a valid consideration, by executing a sale deed, dated 02.01.1993, marked as Ex.A-4, this Court does not find sufficient grounds to interfere with the said findings of the Courts below. The petition filed by the appellant in C.M.P.No.2225 of 2007 is belated and if the prayer therein is granted it would cause grave prejudice to the respondents. Therefore, the CMP stands dismissed.
37. As it is held by this Court that it would not be proper for this Court to permit the appellant to mark the documents as prayed for in this petition, at this stage, this Court is also of the view that the issue relating to the application of Sections 47 and 75(3) of the Registration Act, 1908, need not be gone into as it would be a mere academic exercise.
38. In such view of the matter, the substantial questions of law raised before this Court in the present second appeal, are answered in favour of the first respondent. Accordingly, the second appeal stands dismissed. No costs.
Index:Yes/No 16-04-2008 Internet:Yes/No csh M.JAICHANDREN.J., csh S.A.No.262 of 1999 16-04-2008