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2007 DIGILAW 214 (UTT)

Prem Lal (since Deceased) v. Kalam Ram and others

2007-04-23

PRAFULLA C.PANT

body2007
Judgment – This second appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 07-09-1981, passed by learned District Judge, Chamoli, in Civil Appeal No. 03 of 1980, whereby the said appeal is dismissed and the judgment and decree dated 14-07-1981, passed by the Munsif Karanprayag in O.S. No. 12 of 1979, is affirmed. 2. Heard learned counsel for the parties and perused the papers on record. 3. Brief facts of the case are that the parties to this litigation are residents of Village Sankote, P.O. Nakholi, Pargana Karanprayag, District Chamoli. They are related to each other by the following pedigree: Madan Jaimi (after death of Madan his widow married to Jaimi) Dublu Lachhmu Kalam Ram Bali Ram Raghubir Lal Balbir Lal Baisakhi (Defendant No. 1) (Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.3) (Plaintiff No.4) As such, Dublu and Lachhmu were uterine brothers. It is pleaded in the plaint that the land of Khata Khatoni No. 98 is the ancestral land of the plaintiffs. Since, Lachhmu also lived as brother with the father of plaintiffs, as such, his name also was later entered over the 13 1/2 -. Nali of land. Lachhmu had no issue, therefore, plaintiffs continued to cultivate his land. In 1974, Lachhmu has died. His widow Baisakhi (Defendant/respondent) executed an agreement dated 21-06-1978 for sale of 37 3/4 Nali of land (including the 13 1/4Nali of land of Khata No. 98) to the plaintiffs. She received a consideration of Rs. 3,000/- as a price of the land. However, she did not execute the sale deed. Meanwhile, defendants No.2 and 3 namely, Prem Lal and Jhagri (appellants) got entered their names in the revenue records in collusion with the revenue officials. On this, defendants No.2 and 3, on one hand and the plaintiffs on the other, quarreled and proceedings under Section 107/ 116 of Cr.P.C. were drawn against them. Thereafter, defendant No.1 Baisakhi, widow of Lachhmu, executed a sale deed dated 02-06-1979 in favour of defendants No.2 and 3 and transferred the aforementioned land in suit for a consideration of Rs. 5,000/-, to said two defendants (appellants). The plaintiffs on this filed the suit for cancellation of sale deed dated 02-061979 and also suit for specific performance of agreement dated 21-06-1978. 4. 5,000/-, to said two defendants (appellants). The plaintiffs on this filed the suit for cancellation of sale deed dated 02-061979 and also suit for specific performance of agreement dated 21-06-1978. 4. Defendants contested the suit and tiled their written statements, in which it IS pleaded that no agreement was executed in favour of the plaintiffs on 21-06-1978. It is also alleged that the agreement dated 21-06-1978 relied by the plaintiffs is a forged document. It is further pleaded that the mutation in favour of defendants No.2 and 3 in the revenue record is correct as the land has been transferred by defendant No.1 Baisakhi to them after accepting consideration of Rs. 5,000/-. 5. The trial court after going through the pleadings of the parties framed following issues in the suit: 1. Whether defendant No.1 Baisakhi Devi executed the agreement dated 21-06-1978 in favour of the plaintiffs for sale of land, in suit? 2. Whether plaintiffs are entitled to get the sale deed dated 02-06-1979 executed by Baisakhi Devi in favour of the defendants No.2 and 3, cancelled? 3. Whether plaintiffs are entitled to get executed the registered sale deed from defendant Baisakhi Devi on the basis of the agreement in question? 4. To what relief, if any, the plaintiffs are entitled? 6. After recording the evidence of the parties and hearing them, the trial court decreed the suit with costs. It cancelled the sale deed dated 02-06-1979, and also decreed the suit for specific performance of agreement in favour of the plaintiffs, on the basis of agreement dated 21-06-1978. Aggrieved by said judgment and decree dated 14-07-1981, passed by the trial court, the defendants No.2 and 3 preferred an appeal (registered as Civil Appeal No. 03 of 1980), before the District Judge, Chamoli. Said appeal, after hearing the parties, was dismissed with costs vide judgment and order dated 07-09-1981 by the said court. Hence, this Appeal was filed before the Allahabad High Court on 27-11-1981 by the defendants / appellants, from where it has been received by transfer to this Court, under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 7. Following substantial question of law was formulated and is involved in this Appeal: Whether, the agreement dated 21-06-1978 (Ext. 3) was admissible in evidence, even though the same was unregistered, if so, its effect? Answer to substantial question of law: 8. 7. Following substantial question of law was formulated and is involved in this Appeal: Whether, the agreement dated 21-06-1978 (Ext. 3) was admissible in evidence, even though the same was unregistered, if so, its effect? Answer to substantial question of law: 8. Admittedly, Madan's wife Baisakhi Devi (not the defendant No.1), after death of Madan, got married to Jaimi. It is also admitted that through Madan, said Baisakhi Devi had a son named Dublu while through Jaimi she had another son Lachhmu. It is also admitted that plaintiffs Kalam Ram, Bali Ram, Raghubir Lal and Balbir Lal are sons of Dublu. It is also admitted that Lachhmu's widow is Baisakhi (defendant No.1 and party to the suit). It is also not disputed that defendant No.1 Baisakhi (not wife of Madan and Jaimi) executed sale deed dated 02-06-1979 in favour of defendant No.2 Prem Lal and defendant No.3 Jhagri. The dispute relates whether, said sale deed is valid, or not? The another main dispute between the parties is that whether Baisakhi, widow of Lachhmu, ever executed agreement dated 21-06-1978 in favour of the plaintiffs for sale of the land in question for consideration of Rs. 3,000/-. From the perusal of the record it is evident that agreement dated 21-06-1978 is an unregistered document. Sub section (1) of Section 17 of the Registration Act, 1908, provides that which of the documents are required to be registered, compulsorily. Sub section (1) of Section 17 of the aforesaid Act, is being reproduced below: "17. Document of which registration is compulsory. Sub section (1) of Section 17 of the Registration Act, 1908, provides that which of the documents are required to be registered, compulsorily. Sub section (1) of Section 17 of the aforesaid Act, is being reproduced below: "17. Document of which registration is compulsory. (1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date of which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely : (a) Instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, or the value of one hundred rupees and upwards, to or in immovable property: Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees." 9. The State Amendment of the State of Uttar Pradesh (also applicable to the State of Uttarakhand) shows that words - 'of the value of one hundred rupees and upwards' are omitted from the aforesaid Section. As such, after 01-01-1977 vide U.P. Act No. 57 of 1973, every instrument by which interest, whether vested or contingent, in the immovable property is created, declared, assigned or extinguished is required to be registered, compulsorily. As such, after 01-01-1977 vide U.P. Act No. 57 of 1973, every instrument by which interest, whether vested or contingent, in the immovable property is created, declared, assigned or extinguished is required to be registered, compulsorily. Section 49 of the Registration Act. 1908, provides that no document required by Section 17 to be registered shall be received as evidence of any transaction affecting such property or conferring such power. unless it has been registered. 10. In view of Section 49 of the Registration Act, 1908, read with State amendment incorporated vide U.P. Act No. 57 of 1976 w.e.f. 01-01-1977, whereby words 'or creating such right or relationship' have been added to clause (c) of Section 49, it is evident that the unregistered document by which a party has agreed to sell immovable property, is not admissible in evidence. In other words, such unregistered agreement cannot be read in evidence. 11. Both the courts below have committed glaring and manifest error of law by relying on unregistered agreement dated 21-06-1978. where by defendant No. 1 allegedly agreed to sell the land to the plaintiffs. Neither the unregistered agreement dated 21-06-1978 of sale of immovable property was admissible in evidence nor could the suit for specific performance could be decreed on its basis. Both the courts below have also committed error of law by canceling the sale deed executed by defendant No.1 Baisakhi Devi in favour of defendant No.2 Prem Lal and defendant No.3 Jhagri, for consideration received by her. Said sale deed was a registered document and the seller was a recorded tenure holder. Therefore, the suit should have been dismissed by the trial court. The lower appellate court has also committed illegality in affirming the decree passed by trial court in favour of the plaintiffs. Protection of Section 53 A of Transfer of Property Act, 1882, is available to a party as a defence (shield) to protect possession transferred under an agreement but it cannot be used as a sword to get executed the agreement to get it specifically enforced. As such the lower appellate court has taken a erroneous view that since the defendant No.1 transferred possession at the time of executing the unregistered agreement, as such, the suit can be decreed for specific performance of contract. Substantial question of law stands answered, accordingly. 12. For the reasons as discussed above, the appeal deserves to be allowed. As such the lower appellate court has taken a erroneous view that since the defendant No.1 transferred possession at the time of executing the unregistered agreement, as such, the suit can be decreed for specific performance of contract. Substantial question of law stands answered, accordingly. 12. For the reasons as discussed above, the appeal deserves to be allowed. The same is allowed. The judgment and decree dated 14-07-1981, passed by the Munsif, Karanprayag in Original Suit No. 12 of 1979 and the judgment and decree dated 07 -09-1981, passed by the District Judge, Chamoli in Civil Appeal No. 03 of 1980, are hereby set aside. The Original Suit No. 12 of 1979, instituted in the court of Munsif, Karanprayag, is dismissed. However, no order as to costs.