Tripura High Court
Legal Representatives Of Late Pabitra ... vs Smt. Unmadini Bala Das on 31 January, 2017
Author: S. Talapatra
Bench: S. Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
RSA No.25 of 2013
1. Legal representatives of late Pabitra Malakar,
[a] Smt. Archana Malakar,
wife of late Pabitra Malakar
[b] Sri Pradip Malakar,
son of late Pabitra Malakar
[c] Smt. Ruby Malakar,
daughter of late Pabitra Malakar
[d] Smt. Panchami Malakar (minor),
daughter of late Pabitra Malakar
[e] Smt. Loveli Malakar (minor),
daughter of late Pabitra Malakar
[The appellants 1[d] and 1[e] being minors, are represented
by their natural guardian and mother, Smt. Archana Malakar
at Sl.1[a].]
2. Sri Pranat Malakar,
son of late Paresh Chandra Malakar
3. Sri Prabas Malakar,
son of late Paresh Chandra Malakar,
- all are residents of Village-Baghan, P.S. Kadamtala,
District-North Tripura
............Appellants
- Vs -
1. Smt. Unmadini Bala Das,
wife of Sri Sudhir Chandra Das
2. Sri Nikhil Chandra Das,
son of late Shyamacharan Das
both are residents of Village and P.O. Fulbari,
P.S. Churaibari, District-North Tripura
............Respondents
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
For the appellants : Mr. A. K. Bhowmik, Sr. Advocate
Ms. M. Choudhury, Advocate
For the respondents : Mr. Bidyut Majumder, Advocate
Date of hearing : 07.12.2016
Date of delivery of Judgment : 31.01.2017
and order
Whether fit for reporting : YES
RSA No.25 of 2013 Page 1 of 16
2
Judgment and Order
Heard Mr. A.K. Bhowmik, learned senior counsel
assisted by Ms. M. Choudhury, learned counsel appearing for the
appellants as well as Mr. B. Majumder, learned counsel appearing
for the respondents.
02. This is an appeal under Section 100 of the CPC from
the concurrent finding of the fact as returned by the judgment
dated 26.02.2013 by the Additional District Judge, North Tripura,
Dharmanagar in Title Appeal No.10 of 2012 while affirming the
judgment dated 05.03.2012 delivered in Title Suit No.13 of 2009
by the Civil Judge (Junior Division), Dharmanagar, North Tripura.
03. When admitting this appeal, by the order dated
10.07.2013, the following substantial question of law was
formulated for hearing:
"Whether by the impugned judgment dated 26.02.2013 the
Additional District Judge has misread the evidence
including the said content of the said ekrarnama, Exbt. B for
purpose of affirming the finding as regard to the possession
as returned by the Civil Judge, Jr. Division, Dharmanagar,
North Tripura by his judgment and decree dated 13.12.2013
in Title Suit No.13 of 2009?"
04. For purpose of appreciating the substantial question of
law, the relevant facts may briefly be noted at the outset.
The suit being Title Suit No.13 of 2009 was filed by the
respondents for perpetual injunction under Section 38 of the
Specific Relief Act as the plaintiff was threatened of dispossession
on 17.12.2008 by the appellants and their men. But for resistance
offered by the plaintiff-respondents in order to protect the
possession and interest in the suit land, the said bid was
RSA No.25 of 2013 Page 2 of 16
3
frustrated. But for enjoying peaceful possession, the suit for
perpetual injunction was filed against the defendant-appellants.
The suit land indisputably pertains to Khatian No.1460 of Mouja
Dharmanagar, R.S. Plot No.5633 corresponding to old plot No.3649
measuring .39 acre. The plaintiff-respondents prayed for the said
relief based on the title which devolved to them by way of sale vide
the sale-deed No.1-2253 dated 03.06.1993 from Harendra Chandra
Torat and Himangshu Torat. On the same day of purchase, they
took the delivery on the possession. The said land has been
mutated in their name under Khatian No.1460. But the root of the
dispute can be located in the transfer of the suit land to Harendra
Chandra Torat and Himangshu Torat who claimed to have
purchased the suit land from Paresh Chandra Malakar, the
predecessor and father of the defendant-appellants.
05. Hemendra Torat and Himangshu Torat claimed to have
purchased the said suit land by dint of the registered sale deed
No.1-383 dated 03.02.1977. The sale documents are not disputed
by the defendant-appellants. But the defendant-appellants have
claimed that the sale that occurred on 03.02.1977 was a
conditional sale as his father took a loan of Rs.2,000/- and he
executed the sale-deed dated 03.02.1977 with oral condition that
on payment of the said loan amount within a period of 5(five)
years from date of the execution of the sale-deed, Hemendra Torat
and Himangshu Torat shall re-convey the said land in favour of
Paresh Chandra Malakar. According to them, within 5(five) years
their father Paresh Chandra Malakar repaid the loan and on
09.02.1981 a memorandum [smaraklipi] was issued by Hemendra
RSA No.25 of 2013 Page 3 of 16
4
Chandra Torat (Exbt.B). From the reading of the said memorandum
it would appear that on that day of execution of the said
memorandum i.e. 09.02.1981 the possession of the land was
handed over. But the plaintiff-respondents have claimed that from
03.06.1993 when the land was purchased from Hemendra Chandra
Torat and Himangshu Torat they are in continuous possession over
the said land. On 07.12.2008, the defendant-appellants made a
desperate bid according to the plaintiff-respondents to oust them
from possession. But the said bid was frustrated for their
resistance.
06. On the basis of the pleadings, as many as 4(four)
issues were framed, which are as under:
(i) Whether the suit is maintainable in its present form
and nature.
(ii) Whether the plaintiffs have any cause of action for
the suit.
(iii) Whether the plaintiffs are entitled to the decree as
prayed for.
(iv) To what other relief/reliefs are the parties entitled.
07. It is to be noted further that, the defendant-appellants
have asserted in their written statement as under:
"In the meantime, both Paresh Chandra Malakar and
Hemendra Chandra Torat died and after the death of Paresh
Chandra Malakar, the defendants along with their sisters
and their brother became the owners as per succession and
the suit land along with other land have been recorded in
their name under the khatian No.337, touji No.470 of
mouja- & Tehsil-Kadamtala, Rev. Circle and sub division-
Dharmanagar, North Tripura and they are jointly
possessing the said land as their predecessor, Paresh
Chandra Malakar exercising their right openly, adversely to
the knowledge of rightful owners continuously without any
interruption since 09.02.1981 A.D. extinguishing the right
of lawful owner since 09.02.1981 A.D. Hemendra Tarat and
his successor, Himangshu Tarat and Harendra Tarat had no
right to sale the suit property to anybody or to the plaintiffs
and the plaintiffs acquired no right in the suit property by
RSA No.25 of 2013 Page 4 of 16
5
so-called purchaser. Hemendra Tarat after purchase the
suit land from Paresh Malakar till his death never prayed
for mutation of the suit land in his name because he knew
very well that he was not the owner of the suit land and he
was not the owner of the suit land and he had no ill motive
and illegal gain at the saleing whole properties to the
plaintiffs, they have also included the suit land in the sale
deed. But never got possession or possessed the suit land
since 09.02.1981 A.D. neither Hemendra Tarat or his sons
nor the plaintiffs have possessed the suit land for a single
day."
08. After recording the evidence, the trial court by the
judgment dated 05.03.2012, has observed as under:
"After perusing the pleadings and also the documentary
evidence and ocular evidence of both sides it appears that
the plaintiffs/petitioners have purchased the land by a
registered sale deed no.1-2253 on 03.06.1993 from
Harendra Chandra Tarat and Himangshu Tarat for a
valuable consideration and after purchasing the land they
also mutated the land in their names in finally published
khatian no.1460 of Mouja and Tehsil - Kadamtala for a land
measuring 0.39 acre appertaining to RS plot no.3946 (Part)
corresponding to CS plot no.5633 and RS plot
no.3976/5225 corresponding CS plot no. 5773. The said
khatian no. is marked as Exbt.1 which is adduced on behalf
of the plaintiffs. It also appears after perusing the khatian
no.1460 adduced on behalf of the plaintiff that the record
of rights was created on the basis of M.R. Case no.45 and
36/04 and 35/04. Therefore, from these documents it is
clear that the plaintiffs/petitioners are the bonafide
purchaser of the suit land and after purchase, the suit land
was also mutated in their name after observing all the
statutory formalities as laid down in the TLR and LR Act.
Also after perusing the khatian no.1460 marked as Exbt.1 it
appears that it stands in the name of the plaintiffs
Unmadini Bala Das and Nikhil Chandra Das and both the
plaintiffs are the joint owner and possessor of the suit land
having 50% share each. After perusing the evidences of the
plaintiffs side it has also transpires that the plaintiffs have
also deposed specifically and clearly about the boundary of
the suit land though in some places some minor
contradiction is found but such contradiction can be
ignored with because Civil cases are based on documentary
evidences and the documentary evidences has an
upperhand against the ocular evidences. The certified copy
of the trace map furnished from the plaintiffs side which is
marked as Exbt.2 also clearly shows the land bearing RS
plot no.5633 which the plaintiffs claim in their possession.
On the other hand, the defendants/O.P.s in their written
statement has stated that the father Paresh Chandra
Malakar had sold out the suit land to Hemendra Taarat,
father of Harendra Tarat and Himangshu Tarat in the year
1977 with an oral condition of repurchasing it after 5 years
and accordingly, Hemendra Tarat sold out the same to
Paresh Chandra Malakar father of the defendants on
09.02.1981 on the basis of one unregistered Smaraklipi
executed by him after receiving an amount of Rs.2000/-.
The said copy of Smaraklipi/memorandum is also
RSA No.25 of 2013 Page 5 of 16
6
submitted by the defendants side and is marked as Exbt.B
and during the executing of the Smaraklipi Hemendra Tarat
promised that he would register the suit land in favour of
Paresh Chandra Malakar father of the defendant in future
and also delivery the possession of the same to the
defendants. But it is a fact that no such sale deed was
registered during the life time of Hemendra Tarat or till
date. Therefore, according to the defendants/O.P.s that
their father has repurchased the suit land from Hemendra
Tarat by executing an unregistered Smaraklipi does not
sustains in the eye of law because as per provision of
Transfer of Property Act such transfer from Hemendra Tarat
to Paresh Chandra Malakar by dint of unregistered
Smaraklipi is not a valid transfer because of the fact the
same was not registered by a valid registered sale deed as
per provisions of Section 54 of Transfer of Property Act
though the value of the suit land is more than Rs.100/-.
Hence it is presumed in the eye of law that Hemendra Tarat
has not delivered the property to Paresh Chandra Malakar
father of the defendants/O.P.s because the transfer is not a
valid transfer. So, the claim of the defendants/O.P.s that
after the death of Paresh Malakar the defendants along
with their sister and mother became the owner of the suit
land by inheritance does not also sustains here because as
stated earlier that the transfer of the suit land from
Hemendra Tarat to Paresh Malakar during his repurchase is
not a valid transfer. So, the question of becoming the
owner of the suit land by inheritance on behalf of the
defendants also does not arise in this case. So, the question
of recording their names in khatian no.837 which is marked
as Exbt.A submitted on behalf of the defendants also does
not carries any weight to me. During argument Ld. Defence
Advocate on behalf of the defendants has cited two case
laws in support of their contention bearing case no.AIR
1978 Punjab and Haryana 326 and case no.AIR 1992 Delhi
197. I have perused the citations very carefully. In those
citations it was stated by the Hon'ble Court that the
suppression of the material facts is a sufficient ground for
declining the discretionary relief of injunction and also it
was stated in those judgments that malafide and calculated
suppression of material facts would disentitle a party from
getting injunction. But in this case, these citation as
submitted by Ld. Defence Advocate is not applicable
because those Judgments were given under different facts
and circumstances of the case which does not attract the
present case. Since, the transfer of repurchase by Paresh
Chandra Malakar is not a valid transfer, it is also clear that
the possession of the suit land was not handed over to
Paresh Malakar, father of the defendants by Hemendra
Tarat. On the other hand after perusing the documents
submitted by the plaintiffs side it has revealed that after
the purchase of the land the plaintiffs/petitioners also
mutated the same in their name in a finally published
khatian no.1460 which certainly proves that the
plaintiffs/petitioners are in the possession of the suit land
after the purchase. So, since the plaintiffs/petitioners are
in the possession of the suit land so the
plaintiffs/petitioners are entitled to get a decree as prayed
for."
[Emphasis added]
Based on such finding the suit was decreed.
RSA No.25 of 2013 Page 6 of 16
7
09. Being aggrieved by the said judgment dated
05.03.2012, the defendant-appellants filed an appeal under Section
96 of the CPC in the court of the Additional District Judge, North
Tripura, Dharmanagar. The first appellate court by the impugned
judgment while affirming the said finding of the trial court, has
observed as under:
"It is the contention Ld. Counsel for the defendant-
appellants that their father late Paresh Ch. Malakar sold the
suit land to Hemendra Tarat by registered deed in the year
1977 on condition to repurchase it after five years. But they
have not produced the said sale deed vide No.1-383 dated
03-02-1977 of the year 1977 allegedly executed by their
father in favour of Hemendra Tarat. This is indeed a missing
link in the evidence of the defendants. Further, according to
the defendants said Hemendra Tarat transferred back the
suit land to their father by means of the unregistered hand
note i.e. "Smaraklipi" dated 9.2.1981 (exbt.B) and that on
the basis of that hand note they obtained the ROR i.e
Khatian No.837 dated 20.10.92. But it sounds absurd as to
how they could obtain the Khatian, which is an important
revenue record, on the basis of that unregistered hand
note. Here it is submitted by Ld. Counsel for the appellants
that as there was a stipulation that the vendor Paresh Ch.
Malakar would repurchase the property after five years
from the vendee Hemendra Tarat, for the reason Hemendra
Tarat did not mutate the property in his name. Here I am of
the view that this could be the reason that despite the sale
to Mr. Tarat the ROR still remained in the name of Mr.
Malakar and that led to the eventual preparation of Khatian
No.837 dated 20.10.92 in the name of the heirs of the said
vendor late Paresh Ch. Malakar, regardless of the fact of
the handing out of the 'Smaraklipi' by Hemendra Tarat to
Paresh Ch. Malakar.
In the case law reported in AIR 2003 SC 4548 it was
held by Hon'ble apex court that if title is established burden
is discharged. It now shifts to the adverse party to prove
the contrary.
In the case in hand, the defendant-appellants cannot
be held to have succeeded in dislodging the sturdy and
cogent documentary evidence adduced by the plaintiffs i.e.
the registered purchase deed and the finally published
Khatian in their favour.
In the case law reported in 1998 GLR 145 it was held
by our Hon'ble High Court that the record of right shall be
presumed to be correct unless and until that has been
rebutted. Finally published Khatian must be construed to
have authenticity as to the possession of plaintiff in the suit
premises.
In the instant case I am of the view that the
registered purchase deed dated 3.6.1993 and the
corresponding Khatian No.1460 dated 17.6.2008 relied
upon by the plaintiff-respondents have been able to rebut
RSA No.25 of 2013 Page 7 of 16
8
the so called unregistered hand note and the Khatian in the
name of the defendant-appellants.
In the case law vide (1998) 3 GLR.119 it was held
that the entry in ROR u/s 43 of TLR & LR ACT shall be
presumed to be correct unless the contrary is proved."
[Emphasis supplied]
By means of this appeal, the defendant-appellants have
challenged this finding.
10. Mr. A.K. Bhowmik, learned senior counsel assisted by
Ms. M. Choudhury, learned counsel appearing for the appellants
has submitted that, on reading of the Exbt.B it would clearly
transpire that, in terms of the condition of the sale Hemendra
Chandra Tarat received the entire sum of the loan amount within
the period as agreed by an oral agreement at the time of execution
of the sale-deed dated 03.02.1977. In the said memorandum
[smaraklipi(Exbt.B)], it has been clearly acknowledged that the
possession of the suit land was handed over to the predecessor of
the defendant-appellants. The first appellate court did not consider
that aspect of the matter properly and grossly misread the content
of the said memorandum and as consequence of that, returned the
finding which is entirely perverse in nature and hence the
interference from this court is essentially required.
11. Mr. Bhowmik, learned senior counsel appearing for the
appellants, having relied a decision of the apex court in Maria
Margarida Sequeria Fernandes and Ors. vs. Erasmo Jack De
Sequeria (Dead) through L.Rs., reported in AIR 2012 SC
1727, has further contended that the defendant-appellants are the
true owners qua Paresh Malakar, their predecessor, and hence the
RSA No.25 of 2013 Page 8 of 16
9
suit for perpetual injunction against the true owners cannot be
maintained. Mr. Bhowmik, learned senior counsel has relied on the
following passages of Maria Margarida Sequeria Fernandes
(supra):
96. The respondent's suit for injunction against the true
owner - the appellant was not maintainable, particularly
when it was established beyond doubt that the respondent
was only a caretaker and he ought to have given
possession of the premises to the true owner of the suit
property on demand. Admittedly, the respondent does not
claim any title over the suit property and he had not filed
any proceedings disputing the title of the appellant.
97. This Court in Puran Singh v. The State of Punjab (1975)
4 SCC 518 held that an occupation of the property by a
person as an agent or a servant at the instance of the
owner will not amount to actual physical possession.
98. This Court in Mahabir Prasad Jain (supra) has held that
the possession of a servant or agent is that of his master or
principal as the case may be for all purposes and the former
cannot maintain a suit against the latter on the basis of
such possession.
99. In Sham Lal v. Rajinder Kumar & Others 1994 (30) DRJ
596, the High Court of Delhi held thus:
"On the basis of the material available on record, it
will be a misnomer to say that the plaintiff has been
in 'possession' of the suit property. The plaintiff is
neither a tenant, nor a licensee, nor a person even in
unlawful possession of the suit property. Possession
of servant is possession of the real owner. A servant
cannot be said to be having any interest in the suit
property. It cannot be said that a servant or a
chowkidar can exercise such a possession or right to
possession over the property as to exclude the
master and the real owner of the property from his
possession or exercising right to possession over the
property.
Possession is flexible term and is not necessarily
restricted to mere actual possession of the property.
The legal conception of possession may be in various
forms. The two elements of possession are the
corpus and the animus. A person though in physical
possession may not be in possession in the eye of
law, if the animus be lacking. On the contrary, to be
in possession, it is not necessary that one must be in
actual physical contact. To gain the complete idea of
possession, one must consider:
(i) the person possessing,
(ii) the things possessed and,
(iii) the persons excluded from possession.
A man may hold an object without claiming any
interest therein for himself. A servant though holding
RSA No.25 of 2013 Page 9 of 16
10
an object, holds it for his master. He has, therefore,
merely custody of the thing and not the possession
which would always be with the master though the
master may not be in actual contact of the thing. It is
in this light in which the concept of possession has to
be understood in the context of a servant and &
master."
100. The ratio of this judgment in Sham Lal (supra) is that
merely because the plaintiff was employed as a servant or
chowkidar to look after the property, it cannot be said that
he had entered into such possession of the property as
would entitle him to exclude even the master from enjoying
or claiming possession of the property or as would entitle
him to compel the master from staying away from his own
property.
101. Principles of law which emerge in this case are
crystallized as under:-
1. No one acquires title to the property if he or she
was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such
person would not acquire any right or interest in the
said property.
2. Caretaker, watchman or servant can never acquire
interest in the property irrespective of his long
possession. The caretaker or servant has to give
possession forthwith on demand.
3. The Courts are not justified in protecting the
possession of a caretaker, servant or any person who
was allowed to live in the premises for some time
either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or
extended to the person who has valid, subsisting
rent agreement, lease agreement or license
agreement in his favour.
5. The caretaker or agent holds property of the
principal only on behalf of the principal. He acquires
no right or interest whatsoever for himself in such
property irrespective of his long stay or possession.
[Emphasis supplied]
On the first blush, this contention appears very
attractive but this court is constrained to observe that this decision
has got any application in the context of this appeal.
12. From the other side, Mr. B. Majumder, learned counsel
appearing for the respondents has stated that this court would
carry out any scrutiny in respect of the fact with the laid-down
circumspection. Interference with the finding of the fact by the
RSA No.25 of 2013 Page 10 of 16
11
courts below is not required unless it is shown that the particular
finding is perverse for non-reading the content of Exbt.B. He has
emphatically submitted that both the courts below had taken due
care of the content of Exbt.B and after giving adequate reasoning
they have discarded the claim of the defendant-appellants.
13. For purpose of the jurisdictional limit of this court,
while considering the judgment under Section 100 of the CPC [in
the second appeal], Mr. Majumder, learned counsel has relied on a
decision of the apex court in Deity Pattabhiramaswamy vs. S.
Hanymayya and Others, reported in AIR 1959 SC 57, where
the apex court has held as under:
"13. The finding on the title was arrived at by the learned
District Judge not on the basis of any document of title but
on a consideration of relevant documentary and oral
evidence adduced by the parties. The learned Judge
therefore, in our opinion, clearly exceeded his jurisdiction
in setting aside the said finding. The provisions of Section
100 are clear and unambiguous. As early as 1891, the
Judicial Committee in Durga Chowdhrani v. Jawahir Sigh,
17 Ind. App 122 (PC), stated thus:
"There is no jurisdiction to entertain a second appeal
on the ground of erroneous finding of act, however
gross the error may seem to be''.
The principle laid down in this decision has been followed
in innumerable cases by the Privy Council as well as by
different High Courts in this country. Again the Judicial
Committee in Midnapur Zamindari Co. Ltd. v. Uma Charan,
29 Cal WN 131: (AIR 1923 PC 187), further elucidated the
principle by pointing out:
"If the question to be decided is one of fact it does
not involve an issue of law merely because
documents which are not instruments of title or
otherwise the direct foundation of rights but are
merely historical documents, have to be construed."
Nor does the fact that the finding of the first appellate
Court is based upon some documentary evidence make it
any the less a finding of fact (See ILR 11 Lah 199:
(AIR1930 PC 91). But, notwithstanding such clear &
authoritative pronouncements on the scope of the
provisions of Section 100, Civil Procedure Code, some
learned Judges of the High Courts are disposing of Second
Appeals as if they were first appeals. This introduces, apart
from the fact that the High Court assumes & exercises a
jurisdiction which it does not possess, a gambling element
RSA No.25 of 2013 Page 11 of 16
12
in the litigation & confusion in the mind of the litigant
public."
14. Mr. Majumder, learned counsel has submitted that the
sale which took place on 03.02.1977 between Paresh Malakar and
Hemendra Chandra Tarat and Himangshu Tarat, was not a
conditional sale inasmuch as there was no document embodying
such condition that on payment of any sum or the loan amount
within a prescribed period, the predecessors of the plaintiff-
appellant shall be bound to reconvey the suit land. In this respect,
he has referred a decision of the apex court in Chunchun Jha vs.
Ebadat Ali and another, reported in AIR 1954 SC 345, where it
has been observed by the apex court as under:
"The only weakness in this argument is that when a
mortgage is by conditional sale this is the form it has to
take, because Section 58 (c) postulates that there must be
an "ostensible sale" and if a sale is ostensible it must
necessarily contain all the outward indicia of a real sale.
The question we are considering can only arise when the
word "sale" is used and, of course, a sale imports a transfer
of title. The use of the words "absolute proprietor in our
plaints" carries the matter no further because the essence
of every sale is to make the vendee the absolute proprietor
of what is sold. The question here is not whether the words
purport to make the transferee an absolute proprietor, for
of course they must under Sec. 58 (c) but whether that is
done "ostensibly" and whether conditions of a certain kind
are attached."
[Emphasis supplied]
15. In Vidhyadhar vs. Mankikrao and another, reported
in AIR 1999 SC 1441, the apex court has clearly held that, unless
the condition as embodied by way of a proviso below Section 58(c)
of the Transfer of Property Act is satisfied, the sale cannot be held
to be the conditional sale. It has been enunciated as under:
"45. Mortgage by conditional sale is defined under Section
58(c) as under:-
RSA No.25 of 2013 Page 12 of 16
13
"58. (a) to (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
...
(c) Where the mortgagor ostensibly selles the mortgaged property -
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
(d) to (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . ."
46. The Proviso to this Clause was added by Section 19 of the Transfer of Property (Amendment) Act; 1929 (XX of 1929). The Proviso was introduced in this Clause only to set at rest the controversy about the nature of the document; whether the transaction would be a sale or a mortgage. It has been specifically provided by the Amendment that the document would not be treated as a mortgage unless the condition of repurchase was contained in the same document.
47. The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in Balkishen Das v. Legge, (1899) 27 Ind App 58, had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a consideration of the contents of document in the light of surrounding circumstances. The decision of this Court in Bhaskar Waman Joshi v. Shrinarayan Rambilas Agarwal, AIR 1960 SC 301 : (1960) 2 SCR 117 and P.L. Bapuswami v. N. Pattay Gounder, AIR 1966 SC 902 : (1966) 2 SCR 918, are also to the same effect."
[Emphasis added]
16. For the same principle of law, Mr. Majumder, learned counsel appearing for the plaintiff-respondents has relied on another decision of the apex court in K. Simrathmull vs. RSA No.25 of 2013 Page 13 of 16 14 Nanjalingiah Gowder, reported in AIR 1963 SC 1182. Finally, Mr. Majumder, learned counsel has contended that acknowledging the possession of the plaintiff-respondents, the khatian has been finally published and unless it is rebutted by substantive evidence, the presumption would be in favour of correctness of such entry. In this regard, he has relied on a decision of the apex court in Sudhangshu Mohan Deb (Dead) by L.Rs. vs. Niroda Sundari Debidhup and Ors., reported in AIR 2004 SC 1781, where the apex court has observed as under:
".......... .......... .......... ..........
"Section 43 :
(1) When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission therefrom.
(2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officer shall cause the record to be finally published in the prescribed manner.
(3) Every entry in the record of rights as finally published shall, until the contrary is proved, be presumed to be correct."
7. It will be seen from the above provision that once a khatiyan is finalised and its publication takes place, it is presumed to be correct until the contrary is proved. The final khatiyan stands published in favour of the appellant which gives the appellant right to remain in possession of the suit land. This is a fresh right created in favour of the appellant by the State Government in whom the entire land had vested by virtue of Sections 134 and 135 of the Act."
[Emphasis supplied] Thus, Mr. Majumder, learned counsel has fervently urged this court that there is no merit in this appeal and the purported misreading is without any substance. RSA No.25 of 2013 Page 14 of 16 15
17. Having regard to the submissions made by the learned counsel and on scrutinising the records, for a very limited purpose, this court finds that the question that falls for consideration is, whether on the basis of the memorandum [Exbt.B], it can be inferred that the sale that occurred on 03.02.1977 was a conditional sale and the condition for reconveyance was met by the predecessor of the plaintiff-appellants on surrendering the possession of the land on that date when the said memorandum was executed.
18. In view of the proviso of Section 58(c) of the Transfer of Property Act and the law laid down by the apex court as referred by the learned counsel for the plaintiff-appellants, this court does not have any hesitation to hold that the said transaction cannot be held to be a conditional sale, inasmuch as, the defendant- appellants nowhere in the written statement has stated that either in the sale-deed or any other collateral document executed on the same date, the said condition was embodied, meaning the said condition was recited in those documents. Hence, in view of the clear bar created by proviso to Section 58(c) of the Transfer of Property Act, it cannot be held that the sale was a conditional sale. Even by way of the memorandum it cannot be said that the title was ever transferred by the plaintiff-respondents in favour of the predecessor of the defendant-appellants or the defendant- appellants. Thus, so far the title is concerned, from the documents it is well crystallised that the plaintiff-respondents have got the title over the suit land. So far the possession is concerned, both the courts below have correctly held that the evidence that has been RSA No.25 of 2013 Page 15 of 16 16 led by the defendants is not substantive enough to rebut the presumption of correctness of the entry made in the khatian mutated in favour of the plaintiff-respondents [Exbt.1 series]. This court does not find any infirmity in such finding. Thus, this court has no other alternative but to hold that while passing the impugned judgment, the first appellate court took due care of that memorandum [Exbt.B].
19. Having held so, this court is pursuaded to hold that this appeal is bereft of merit and according the same is dismissed.
Prepare the decree accordingly.
Send down the records thereafter.
JUDGE Moumita RSA No.25 of 2013 Page 16 of 16