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2005 DIGILAW 1224 (PNJ)

Piara Singh v. Harbhajan Singh

2005-11-30

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging the view taken by the lower Appellate Court in reversing the findings of fact as recorded by the trial Court. The principal question of law which require determination in this appeal is as under:- 1. Whether a property shown to be worth less than Rs. 100 would be transferable without delivery of possession within the meaning of Section 54 of the Transfer of Property Act, 1882 2. The dispute in the present case relates to the property of one Khushia who is alleged to have executed four sale deeds Exs. D1 to D4, on 15-5-1987 He also executed a will Ex. DW-8 and an agreement on 15.5.1987 Ex.D5. The plaintiff-appellant and defendant-respondent No. 1 are sons of real brother of Khushia. Piara Singh-plaintiff-appellant filed a suit for declaration to the effect that he alongwith his brother Harbhajan Singh defendant-respondent 1 are owners in possession of the suit property comprised of two houses which are fully detailed in the judgment and decree. Defendant-respondents 2 to 5 have set up the sale deeds Exs. D1 to D4, agreement Ex.D5 and will Ex.DW-8 alleged to have been executed by Khushia on 15.5.1987. It is appropriate to mention that defendant-respondents 2 to 5 are the grandsons of the other brother of Khushia who admittedly died during the life time of Khushia. 3. The trial Court decided the pivotal issue No.2 in favour of the plaintiff-appellant by holding that sale deeds were surrounded by numerous suspicious circumstances and in any case the value of the land as per admission made by defendant-respondent 5 Gian Singh who has appeared as DW-6 is Rs. 2,500/- to Rs. 3,000/- per marla. The total area transferred by four sale deed was eight marlas. The trial Court specifically referred to the admission made by DW-1 Gurdas Singh with regard to possession of the two houses wherein Gurdas Singh who was an attesting witness of the sale deeds had admitted that houses were in possession of plaintiff-appellant Piara Singh and his brother defendant-respondent 1 Harbhajan Singh. The view of the trial Court on issue No.2 reads as under:- 14. Perusal of the sale deeds Ex.D1 to Ex. D5 shows that all these sale deed are unregistered and they were executed for Rs.99/- each. The view of the trial Court on issue No.2 reads as under:- 14. Perusal of the sale deeds Ex.D1 to Ex. D5 shows that all these sale deed are unregistered and they were executed for Rs.99/- each. As per Section 54 of the Transfer of Property Act "in case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property". Admittedly all these sale deeds in dispute are unregistered documents, so delivery of possession was necessary to complete the sale. It has been admitted by DW.l Gurdas Singh and DW.6 Gian Singh that the houses in dispute are in possession of plaintiff and defendant No. l and defendant Nos. 2 to 5 are not in possession over the same. No such evidence has come on file as defendants Nos. 2 to 5 were delivered the possession at the time of the execution of the sale deeds and afterwards, they were forcibly dispossessed from the suit property. So Ex.D.l to Ex. D4 are unregistered and no possession was delivered at the time of execution so no title has been passed in favour of the defendant Nos. 2 to 5. 15. Moreover, other suspicious circumstances are also surrounding the execution of these sale deeds. As it has been admitted by DW.l Gurdas Singh that Khushia was not in need of any money at the time of the execution of the sale deed and DW.6 Gian Singh admitted in his cross examination that the rate of land in his village is about Rs. 2500/- - Rs.3000/- per marla in the abadi area. The fact being that the vendor was not in need of money, the stamp papers were not purchased by the vendor. The sale deeds being unregistered and inadequacy of consideration, all these circumstances make the execution of Ex.D.l to Ex.D.4 doubtful and the defendants have not dispelled these suspicious circumstances. So this issue is decided in favour of the plaintiff and defendant No.l and against defendant Nos.2 to 5. 4. On the issues concerning the will Ex.DW-8 as well as the agreement Ex. D5, the findings recorded by the trial Court are that the houses in dispute were not covered by those documents. So this issue is decided in favour of the plaintiff and defendant No.l and against defendant Nos.2 to 5. 4. On the issues concerning the will Ex.DW-8 as well as the agreement Ex. D5, the findings recorded by the trial Court are that the houses in dispute were not covered by those documents. These findings are available in the judgment and decree of the trial Court in paras 17 and 18 respectively and the same read as under:- 17. Will in dispute was also executed by Khushia regarding his land which is not in dispute in this case. Copy of the will is Ex.DW.8/B. DW.7 Sukhvinderjit Singh scribe of the will and DW. 8 Gurdas Singh attesting witness of the will were also examined. The Id. Counsel for the defendants has vehemently contendted that as will in dispute was also executed on 15.5.1987 and on the basis of this will, plaintiff sold his 1/3 share. He has also contended that if the will had been accepted by the plaintiff, then the sale deeds in dispute which were also executed on the same date are also to be accepted by the plaintiff. But since the will was not executed regarding the suit property, so it has no bearing on the property in dispute in this case. So this issue is decided accordingly. 18. Agreement Ex. D5 was also executed by Khushia on 15,5.1987. Gurdas Singh DW.l who is the attesting witness of the agreement has been examined. The Id. Counsel for the defendants has again contended that as this agreement was also executed by Khushia on 15.5.1987 so the sale deeds Ex.D.l to Ex.D.4 were also executed by deceased Khushia but the suit is not covered under this agreement . So this agreement has no bearings in the present suit. Moreover, agreement creates no title. This issues is also disposed of accordingly. 5. On appeal filed under Section 96 of the Code, learned lower Appellate Court has reversed the findings by observing that sale deeds Exs.Dl to D4 were not challenged by Khushia during his life time nor any suit was filed by him against defendant-respondents 2 to 5 by asserting that sale consideration was inadequate. It has further been observed that Khushia was issueless and he could dispose of the property as per his own choice at whatever price. It has further been observed that Khushia was issueless and he could dispose of the property as per his own choice at whatever price. However, the learned lower Appellate Court completely overlooked the admissions made by DW-1 Gurdas Singh who was an attesting witness of the sale deeds Exs.Dl to D4, It has also ignored the admissions made by Gian Singh DW-6 who himself is defendant-respondent 5. DW-1 Gurdas Singh has admitted in opening para of the cross-examination that two houses are in possession of two brothers, namely, the plaintiff-appellant and defendant-respondent 1. DW-6 Gian Singh has also admitted with regard to the value of the property which according to him was Rs.2,500/-to Rs. 3,000/- per marla, wheres the total land transferred by sale deeds Exs.Dl to D4 is about 8 marlas. 6. A perusal of the judgment and decree passed by the learned lower Appellate Court would show the aforementioned fact which reads as under- 11. A minute perusal of the evidence on the file shows that Khushia executed four sale-deeds in favour of defendants No. 2 to 5 on 15.5.1987 and it is mentioned in the sale-deed that he had given the possession of the property sold by him to the vendees. On the same date, one agreement Ex.D5 and the will dated 15.5.87 were also executed by Khushia and all these documents had been scribed by Sukhwinderjit Singh, Deed Writer, who had duly entered the said documents in his register, Deceased Khushia had not challenged the said documents during his life time nor he filed any suit against defendants No.2 to 5, to the effect that the sale consideration was inadequate. Khushia was issueless and he could dispose of the property as per his own choice and even if he sold the same for an inadequate consideration, it could not be said that the sale was not a valid one. Khushia was issueless and he could dispose of the property as per his own choice and even if he sold the same for an inadequate consideration, it could not be said that the sale was not a valid one. In my opinion when the defendants Nos.2 to 5, had led sufficient evidence on the file to prove that Khushia sold the property in dispute in their favour and had also delivered the possession to them and they were in possession of the said property as owners and in these circumstances the citations referred to by the learned Counsel for the appellant are fully applicable to the facts of the case and in view of the same, the findings of the lower court are not as per the evidence on the file and the same are hereby reversed. 7. Mr. Onkar Singh, learned Counsel for the appellant has argued that lower Appellate Court was under an legal obligation to meet the reasoning followed by the trial Court before reversing the findings recorded by it. According to the learned Counsel, admissions made by two witnesses have been completely brushed aside which has resulted into recording finding which are perverse. Learned Counsel has submitted that on material issues concerning possession of the houses by the plaintiff-appellant and defendant-respondent 1 his brother, attesting witness Gurdas Singh who appeared as DW-1 has categorically admitted their possession and the same would substantively affect the decision of the case as under Section 54 of the Transfer of the Property Act, 1882 (for brevity, the Act), a sale by an unregistered document could be completed in respect of immovable property if it is worth less than Rs. 100/- by delivery of possession. Learned Counsel has submitted that in any case value of the property stated by defendant-respondent 5 when he appeared as DW-6 is Rs. 2500/- to Rs. 3000/- per marla, whereas the property is shown to have been transferred for Rs.99/-. He has emphasized that various suspicious circumstances as listed by the trial Court have not been adverted to by the lower Appellate Court. In support of his submission, learned Counsel has place dreliance on a Full Bench judgment of Kerala High Court in the case" of Illikkal Devaswom v. Pottokkatt Narayanan Raghavan and Anr. He has emphasized that various suspicious circumstances as listed by the trial Court have not been adverted to by the lower Appellate Court. In support of his submission, learned Counsel has place dreliance on a Full Bench judgment of Kerala High Court in the case" of Illikkal Devaswom v. Pottokkatt Narayanan Raghavan and Anr. and argued that once the value of the property is admitted to be more that Rs.100/-, then Section 54 of the Act would come into .play and any sale if it is unregistered cannot be looked into. He has then cited a judgment of this Court in the case of Shailesh Kumar v. Mrs. Sandhya Gtiptal 2002(1) R.C.R. (Civil) 441 and a judgment of Rajasthan High Court in the case of Davendra Singh and Ors. v. State of Rajasthan and Ors. 2002(3) R.C.R. (Civil) 341 to argue that once a person like the plaintiff-appellant is a natural successor of the property in dispute and the property has been held to be worth more than Rs. 100/-, then any document which results in transfer of title would require registration. 8. Mr. Ramesh Sharma, learned Counsel for respondents 2 to 5 has argued that Khushia did not challenge the execution of sale deeds or other documents during his life time which could have advanced the case of the plaintiff-appellants, who have claimed that sale deed were not genuine. According to the learned Counsel, the inadequacy of consideration is no ground to set aside a sale deed especially when the sale deed itself has not been challenged by the plaintiff-appellant. 9. After hearing learned Counsel for the parties, I am of the considered view that this appeal deserves to be accepted. It would be appropriate to make a reference to the provisions of Section 54 of the Act and the same reads as under :- CHAPTER III OF SALES OF IMMOVABLE PROPERTY 54, "Sale" defined- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made:- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a revision or other intangible thing, can be made only by a registered instrument. Sale how made:- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a revision or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than on hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract of sale:- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. 10 A plain reading of Section 54 of the Act would show that if a property is sold for less than one hundred rupees, the sale could be complete by delivery of possession. It looks to be well settled that the possession contemplated by Section 54 of the Act is actual physical possession and it is not sufficient to show that there was constructive or symbolic possession because the words used in the Section are "delivery of tangible immovable property takes place when the seller places the buyer in possession of the property." Therefore, the buyer has to be in actual possession. The aforementioned provision came up for consideration of Supreme Court in the case of Brijvasi Lal v. Abdul Haji and their Lordships observed as under:- 5. On a plain reading in the case of tangible immoveable property of a value less than one hundred rupees, transfer may be made either by a registered document or by delivery of possession. But it has been further said in the said section that the delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs in possession of the property, 11. In the present case, the possession of defendant respondents 1 to 5 has not been proved. But it has been further said in the said section that the delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs in possession of the property, 11. In the present case, the possession of defendant respondents 1 to 5 has not been proved. The admission made by DW-1 Gurdas Singh is categorical that possession continues to be that of plaintiff appellant and defendant-respondent 1.A perusal of the statement made by DW-6 Gian Singh who is defendant-respondent 5 clearly shows that he was not able to assert that he or his brothers were in possession of two houses. In his cross examination he has meekly accepted that in one of the house, he has put his lock after making statement in examination-in-chief that he alongwith his brothers were in possession of both the houses. The lower Appellate Court has merely placed reliance on the recital in the sale deeds which would not be permissible because may show constructive possession or symbolic possession. Moreover, the sale deeds themselves have been found to be surrounded by various suspicious circumstances which have been listed in details by the trial Court, then the recital would loose significance. In any case. the admission is the best piece of evidence under Section 17 of the Evidence Act, 1872, Therefore, no transfer of property by sale is deemed to have taken place. 12. It has been repeatedly emphasized by the Supreme Court as well as by this Court that lower Appellate Court is under a legal obligation to meet the reasoning adopted by the trial Court before reversing the findings on any issue. In this regard reliance may profitably be placed on a judgment of the Supreme Court in the case of Santosh Hazari v. Pwshottam Tiwari. After close scrutiny of plethora of judgments their Lordsnips have held as under: ...The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein upon for rehearing both on questions of fact of law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.... The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.... ...While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhmudan Dass v. Narayanbai) The Rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of fact; pure findings of fact remain immune from challenge before the High Court in second appeal. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of fact; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one.... 13. The aforementioned view has been further fortified by observation of the Supreme Court in the case of Madhukar and Ors. v. Sangram and Ors. Reminding the first appellate court its duty their Lordships observed as under :- 5. We have carefully perused the judgment and decree of the High Court in the first appeal. We find that substantial documentary evidence had been placed before the trial court including certified copies of certain public records besides copy of the judgment and decree of the earlier suit (O.S. No.93 of 1971). Oral evidence had also led by the parties before the trial court which was noticed and appreciated by the trial court. However, the impugned judgment in the first appeal is singularly silent of any discussion either of documentary evidence or oral evidence. Not only that, we find that though the trial court had dismissed the suit on the ground of limitation as also on the ground that the decision in the earlier suit (O.S. No.93 of 1971) operated as res judicata against Defendant 1 only, the High Court has not even considered, much less discussed the correctness of either of the two grounds on which the trial court had dismissed the suit. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. It has failed to discharge the obligation placed on a first appellate court. The judgment under appeal is so cryptic that none of the relevant aspects have even been noticed. The appeal has been decided in a very unsatisfactory manner. First appeal is a valuable right and the parties have a right to be heard both on question of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. 14. When view of the Supreme Court in respect of duties imposed on the first appellate court are kept in view then it becomes evident that the first appellate court must meet the reasoning adopted by the trial court. In the present case, the first appellate court without referring to the various admissions made by DW.l Gurdas Singh, as noticed by the trial court, has reversed the findings. The admission made by DW.l Gurdas Singh have made material differences because the legal consequence flowing from that admission is that no actual possession of tangible immovable property was delivered to the defendant-respondent, which may result into transfer of property by sale. It would be appropriate to make a reference to the statement of DW. 1 Gurdas Singh which, when translated, reads as under :- Khushia belongs to our village and he is no more. One of his house is in possession of Piara Singh and other one is in possession of Harbhajan Singh (plaintiff-appellant and defendant-respondent No. 1 respectively). The statement of DW.6 Gian Singh defendant-respondent No.5 would also show material admission in his cross-examination:- 0- the price of the houses of Khushia is tentatively Rs.15,000/- 15 The trial court has made reference to the statements of both these witnesses and has recorded findings on the basis of their admissions. However, the lower appellate court has failed to take the aforementioned admissions in its account and has reversed the findings which are perverse. Therefore, the view taken by the lower appellate court is liable to be set aside. 16. For the reasons stated above, the legal question posed in the opening para of this judgment is answered in negative and it is held that in the absence of any overt proof of delivery of possession, transfer of sale of such a property car not be complete. 17. 16. For the reasons stated above, the legal question posed in the opening para of this judgment is answered in negative and it is held that in the absence of any overt proof of delivery of possession, transfer of sale of such a property car not be complete. 17. Accordingly, the judgment and decree passed by the Trial Court are restored.