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2010 DIGILAW 3159 (MAD)

Saroja v. Special Tahsildar, Land Acquisition

2010-07-29

K.CHANDRU

body2010
Judgment :- Heard. 2. This Appeal Suit is filed under Section 96 of the CPC challenging the judgment and decree in LAOP No.313 of 1987, dated 27.4.1993 on the file of the Sub Court, Poonamallee. 3. The lands in Survey Nos.82/5 and 105/1B to an extent of 27 cents and 28 cents were acquired in Kadapperi Village for the purpose of setting up Madras Export Processing Zone. In respect of Survey No.82/5, the compensation was worked out to Rs.5818.55 and in respect of Survey No.105/1B, the compensation was worked out to Rs.6034.05. Since there was a dispute regarding the ownership of the land between the appellant and the second respondent, the matter was referred for determination of the dispute under Section 30 read with S.31(2) of the Land Acquisition Act. On reference, the same was registered as LAOP No.313 of 1997. 4. The first claimant is the second respondent herein and the second claimant is the appellant herein. The first claimant filed a claim statement, dated 27.12.1989 stating that two parcels of lands were exclusively owned and possessed by her same having been purchased on 5.3.1973 for a valuable consideration and registered as Document No.584 of 1973. Since the sale deed is exclusively standing in her name, she alone is entitled to get the compensation in respect of both properties. However, the appellant being the second claimant filed a claim statement stating that she had purchased Survey No.105/1B by sale deed, dated 15.12.1976. Therefore, compensation should be exclusively given to her. 5. Before the court below, three issues were framed, which are as follows: a) Whether the first claimant (second respondent herein) is entitled to get the entire compensation? b) Whether the land in Survey No.105/1B to an extent of 28 cents was purchased by the second claimant (appellant herein) by a sale deed, dated 15.12.1976 is true? If so, whether the second claimant is entitled to get compensation? And c) What is the relief to be given to parties? 6. Before the court below, on behalf of the second respondent, her husband Nagarathinam was examined as C.W.1. On behalf of the appellant, her husband Thrisappar was examined as C.W.2. 20 documents were filed and they were marked as Exs.C.1 to C.20. Third party documents were also summoned and they were marked as Exs.1 and 2. 6. Before the court below, on behalf of the second respondent, her husband Nagarathinam was examined as C.W.1. On behalf of the appellant, her husband Thrisappar was examined as C.W.2. 20 documents were filed and they were marked as Exs.C.1 to C.20. Third party documents were also summoned and they were marked as Exs.1 and 2. The second respondent had filed Exs.C.6 to C.16 which are Adangals to show that she has been cultivating the lands. Exs.C.17 to C.20 are kist receipts for having paid kist for those lands. Ex.C.3 is the sale deed by which she had purchased the land. Ex.C.4 is the patta standing in her name. But so far as the sale deed, dated 15.12.1976, it is claimed by the appellant that it is only an unregistered sale deed. 7. The court below found that the appellant has no right to claim any share on the basis that there was a sale since it was an unregistered document. Though it was claimed that during the relevant time, there was a ban for registration of any sale deed in that area, still as long as it is an unregistered document, it cannot be considered as a sale deed. At the maximum, it can only be an agreement. On the basis of the evidence placed before the court below, it found that Rs.3335/-was received by the second respondent towards consideration and therefore, since sale has not been effected, that amount was directed to be returned to the appellant with 6% interest. With these findings, the three issues were answered accordingly. 8. Mr.N.Moorthi, learned counsel for the appellant contended that the finding that the agreement of sale cannot be taken note of as recorded by the court below is illegal. He submitted that the document which is required to be registered if unregistered can be admitted in evidence as evidence of contract in a suit for specific performance. He also submitted that if any admission is made with reference to an unregistered sale deed in evidence in a suit for specific performance as evidence of contract, the provision of CPC will not come into play. 9. For this purpose, he relied upon a judgment of the Supreme Court reported in S.Kaladevi Vs. V.R.Somasundaram reported in 2010 (5) SCC 401 = 2010 (2) TLNJ 471 (Civil). 9. For this purpose, he relied upon a judgment of the Supreme Court reported in S.Kaladevi Vs. V.R.Somasundaram reported in 2010 (5) SCC 401 = 2010 (2) TLNJ 471 (Civil). But however, in that case, the court below was only concerned with reference to admissibility of an unregistered sale deed in a suit for specific performance. This can be found out from the following passage found in paragraph 15, which is as follows: "15. The issue before us is only with regard to the admissibility of unregistered sale deed dated 27.2.2006 in evidence and, therefore, it is neither appropriate nor necessary for us to consider the contention raised by learned counsel for the respondents about the maintainability of suit as framed by the plaintiff or the circumstances in which the sale deed was executed. If any issue in that regard has been struck by the trial court, obviously, such issue would be decided in accordance with law. Suffice, however, to say that looking to the nature of the suit, which happens to be a suit for specific performance, the trial court was not justified in refusing to admit the unregistered sale deed dated 27.2.2006 tendered by the plaintiff in evidence." 10. For the proposition whether though an unregistered sale deed can convey a property to any person so as to claim ownership, the said judgment cannot be an authority. 11. On the other hand, the Supreme Court vide its judgment in Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddy reported in 1999 (7) SCC 114 held in paragraph 10 which is as follows: “10. The difference of opinion amongst the various High Courts on this aspect of the matter is that Section 77 of the Act is a complete code in itself providing for the enforcement of a right to get a document registered by filing a civil suit which but for the special provision of that section could not be maintainable. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document. Several difficulties have been considered in these decisions, such as, when the time has expired since the date of the execution of the document whether there could be a decree to direct the Sub-Registrar to register the document. On the other hand, it has also been noticed that an agreement for transfer of property implies a contract not only to execute the deed of transfer but also to appear before the registering officer and to admit execution thereby facilitating the registration of the document wherever it is compulsory. The provisions of the Specific Relief Act and the Registration Act may to a certain extent cover the same field but so that one will not supersede the other. Where the stage indicated in Section 77 of the Act has reached and no other relief except a direction for registration of the document is really asked for, Section 77 of the Act may be an exclusive remedy. However, in other cases it has no application, inasmuch as a suit for specific performance is of a wider amplitude and is primarily one for enforcement of a contract and other consequential or further relief. If a party is seeking not merely the registration of a sale deed, but also recovery of possession and mesne profits or damages, a suit under Section 77 of the Act is not an adequate remedy.” 12. Further, the Supreme Court in K.B.Saha and Sons Private Limited Vs. Development Consultant Limited reported in 2008 (8) SCC 564 held in paragraphs 33 and 34 as follows: “33......The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner?s Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it.” 34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.” 13. These two judgments also were came to be referred to in S.Kaladevi case (cited supra). All that the Supreme Court in that case was held that an unregistered document can be admitted as evidence of contract in a suit for specific performance. It must be noted that the reference under Section 30 of the Land Acquisition Act cannot be taken note of as a suit for specific performance. At the maximum, it can be tried like a partition suit in the light of the decision of the Supreme Court in P.K.Sreekantan Vs. P.Sreekumaran Nair reported in 2006 (13) SCC 574. The following passages found in paragraphs 11 and 12 may be usefully extracted below: “11. The Reference Court derives jurisdiction from the reference made. References under Section 18 and Section 30 are conceptually different from each other. The decree in terms of Section 18 is different from the one in terms of Section 30. ....... 12. In Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran2 the question related to the exercise of jurisdiction under Section 30 of the Act vis-`-vis Section 18. Determination in terms of Section 30 has settings of a decision in the partition suit.......” 14. ....... 12. In Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran2 the question related to the exercise of jurisdiction under Section 30 of the Act vis-`-vis Section 18. Determination in terms of Section 30 has settings of a decision in the partition suit.......” 14. Therefore, the court below had correctly found that the document which is unregistered is only an agreement and it cannot be a full-fledged document of a sale deed and correctly refused to accept it as the basis for granting the entire amount in respect of Survey No.105/1B. Therefore, there is no jurisdictional error in the judgment passed by the court below. 15. In the light of the above, the Appeal Suit will stand dismissed. However, there will be no order as to costs.