JUDGMENT 1. Feeling aggrieved by the judgment and decree dated 7.11.1995 passed by learned Second Additional District Judge, Hoshangabad in Civil Suit No.10-A/1994 (old number) 108-A/1992, this appeal under section 96 has been filed by the plaintiff-Municipality. 2. Initially, the suit was filed by the plaintiff for declaration having possession over the disputed property, which is a building, the description whereof is mentioned in the plaint and which is the subject-matter of the suit; and for injunction restraining the defendants-State of M.P. and its functionaries (respondents herein) from interfering with the plaintiff’s possession and the other ancillary reliefs. However, during the pendency of the suit, the plaint as well as the relief clause has been amended and further it was prayed that possession of the suit property be delivered to the plaintiff. 3. During the course of arguments, this has not been disputed by learned counsel for the parties that later on the possession of the property in question has been delivered to the plaintiff. 4. In brief, the plaintiff’s case is that plaintiff-Municipality is the owner having possession of the disputed property.Till the year 1961 in the township of Seoni-Malwa there was a separate building for Girls School and there was a great demand for upgrading the Middle School by the general public of the said vicinity. The plaintiff-Municipality was also under pressure of the public to pursue the Government to concede the demand of public regarding upgrading of the said Girls Middle School. During those days, there was a scheme of the State Government to upgrade the School, therefore, the plaintiff-Municipality offered to give the disputed building for running the High Secondary School classes for girls till a separate building is constructed. A resolution to that effect was also passed in the said meeting of the Council on 23.9.1962. From time to time as per the directions of the State Government, necessary repairs in the disputed building were carried out by the plaintiff. The State Government started Higher Secondary School classes in the disputed building since 1964.Thereafter, a new building has been constructed by the State Government and now the State Government is running the School in its new building since 1991. 5. The State Government started Higher Secondary School classes in the disputed building since 1964.Thereafter, a new building has been constructed by the State Government and now the State Government is running the School in its new building since 1991. 5. After Government shifted the School in the new building, the plaintiff wrote a letter to the Head Master of the Institution/defendant No.3 to vacate the disputed building because plaintiff needed the said building to shift its office in the said building because the building in which presently the office is being run is insufficient and is very old and further is in dilapidated condition. 6. It is the further case of plaintiff that on 4.11.1992 the Incharge of the School informed the plaintiff that the disputed building has been vacated, eventually the plaintiff’s officer inserted the lock. However, in the morning of 6.11.1992, the plaintiff learnt that the Joint Director (Education) (defendant No.2) has authorized the fourth defendant, Principal of the Government Naveen High School vide letter dated 29th September, 1992 to take possession of the building in question to hold the classes of the Government School. According to the plaintiff, the students of the said School at the instance of 2nd and 4th defendant are creating nuisance to the building in question and, therefore, the plaintiff is in apprehension that they may now break the lock and take illegal possession of the building. Hence, looking to the urgency by taking aid of section 80(2) CPC for obtaining immediate relief of temporary injunction, the present suit was filed. By amending the plaint it has been pleaded that in pursuance to the letter of defendant No.2 dated 29.2.1992 the defendants have taken illegal possession of the suit building and are possessing the building in question illegally although the title of the suit property vest in the plaintiff. Hence, in this manner the present suit has been filed for possession and injunction. 7. The defendants by refuting the plaint averments have denied the plaintiff’s possession over the suit property, as well as its ownership. Hence, in this manner the present suit has been filed for possession and injunction. 7. The defendants by refuting the plaint averments have denied the plaintiff’s possession over the suit property, as well as its ownership. The main stand of the defendants in the written statement which has also been elaborated in the additional pleadings is that vide order No.D/27/36/2776/70J, 3/81 dated 21.11.1981 of the School Education Department of the Government of M.P. and also vide order No.6911/18/12/81 dated 27.11.1981 of the Local Self Government it has been directed that the Schools which were being run in the building of the Municipality or Corporation have been transferred to the Education Department of the Madhya Pradesh and accordingly the disputed building is also transferred to the State of M.P. and now the said building is in the ownership of State of M.P. which is being possessed by the State-defendants since 1964. Hence, it has been prayed that the suit be dismissed. 8. On the basis of the averments made in the plaint and denial in the written statement, the learned trial Court framed issues on 21.12.1994 which reads thus : (i) Whether plaintiff is the owner of the disputed land? (ii) Whether possession of the fourth defendant is illegal on the suit building? (iii) Whether the letter dated 29.9.1992 written by the second defendant to fourth defendant is without jurisdiction, its effect? (iv) Whether defendants are entitled for damages of Rs.10,000/-? (v) Relief and costs. 9. On behalf of plaintiff-Municipality, Chief Municipal Officer Ramesh Kumar Pandey (PW1) has been examined who also proved the documents Ex.P-1 to P-10. On behalf of defendants two witnesses namely Shri Surya Kant Awasthy (PW1) who was earlier serving as Principal of the said Institution was examined and Shri M.A. Khan (PW2) Principal of the said Middle School has been examined. The defendants have also proved two documents Ex.D-1 and D-2 which are letter dated 5.11.1992 and an order of the State Government, Director, Public Education. 10. The learned trial Court by the impugned judgment while deciding issue No.2 has held that the possession of the building in question has already been delivered to the plaintiff, however, dismissed the suit of plaintiff holding that it had failed to prove its ownership. 10. The learned trial Court by the impugned judgment while deciding issue No.2 has held that the possession of the building in question has already been delivered to the plaintiff, however, dismissed the suit of plaintiff holding that it had failed to prove its ownership. In this manner, this appeal has been filed by the plaintiff against that part of the impugned judgment by which it has been held by learned trial Court that the plaintiff is the owner of the suit building is not proved. 11. The contention of Shri Dixit, learned counsel for the appellant is that several documents have been filed by the plaintiff-Municipality in order to prove the ownership of the plaintiff. In these documents, the defendant have expressly and impliedly admitted its ownership. Thus, even though the title deed of the disputed building has not been filed by the plaintiff, it would not weaken its case on account of clear admission of the defendants. It has also put forth by him that merely by passing an order Ex.D-2 directing that the building in which the Government Schools are being run shall vest in the State, cannot be said to be a valid transfer because the valuation of the property in question is admittedly more than Rs.100/- and, therefore, registration is compulsory. Learned counsel submits that simply by passing a bald order by Assistant Director of Public Education Department of M.P., the immovable property cannot be transferred and it cannot be said to be a valid conveyance. In this context, learned counsel has placed reliance upon section 17 of the Indian Registration Act, 1908 and also on the decision of Bombay High Court Gango Cooperative Housing Society Ltd. Mumbai v. Municipal Corporation of Greater Bombay and another [AIR 2004 Bombay 64]. 12. On the other hand Shri Mishra, learned Government Advocate argued in support of the impugned judgment and submitted that because defendants denied the plaintiff’s ownership over the suit property, therefore, the burden of proof was upon the plaintiff to prove ownership and having failed to prove such ownership by filing any document of title of ownership, the learned trial Court has rightly dismissed the suit and, therefore, this appeal has no substance and the same be dismissed. 13. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 14. 13. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 14. I have already referred hereinabove the pleadings of the parties. According to the plaintiff-Municipality, the suit building is owned by it although this has been denied in the written statement. The stand of the defendants disowning the plaintiff’s ownership is the order of the Joint Director, Public Education dated 10.10.1991 (Ex.D-2). For better understanding it would be appropriate to quote para 10 of the written statement which reads thus : ^^10- ;g fd e-iz- ‘kklu ds Ldwy f’k{kk foHkkx i`”B dz-Mh@27@36@2776@70ts] 3@81 fnukad 21-11-1981 rFkk LFkkuh; ‘kklu foHkkx e-iz- ds vkns’k dz-6911@18@12@81 fnukad 27-11-1981 esa ;g Li”V funsZf’kr gS fd iwoZ uxj fuxe uxjikfydk rFkk tuin }kjk lapkfyr lHkh laLFkk,a f’k{kk foHkkx ¼’kklu½ dks gLrkarfjr gks pqdh gSa bl vkns’k ds vuqlkj Hkh fookfnr edku Hkh vius vki gh e-iz- ‘kklu dks gLrkarfjr gks pqdk gS o bl Hkou ij blh fnukad ls gh e-iz- ‘kklu dks LoRo Hkh izkIr gks pqdk gS o fookfnr Hkou ij e-iz- ‘kklu dk lu~ 1964 ls gh vkf/kiR; gSA** Thus, on the basis of the aforesaid orders of the School Education Department and Local Self Government, the defendants are claiming their ownership right in the suit property. However, these orders have not been placed on record and are not proved. But, it would not mean that by not filing the aforesaid orders, the plaintiff would be deemed to be the owner of the suit property. Thus, this Court is required to see how far the plaintiff has proved its ownership over the suit property. Indeed, the plaintiff has not filed any title deed in order to prove its ownership but it is equally true that defendants have admitted the ownership of the plaintiff in several documents and, therefore, there is an admission of the defendants admitting the ownership of the plaintiff over the suit property. 15. The letter of the District Education Officer dated 16.6.1978 (Ex.P-4) is the document which is addressed to the President of the plaintiff-Municipality. On bare perusal of this letter of defendant, it is gathered that the plaintiff-Municipality is keen enough to get the Government School transferred in the disputed building. 15. The letter of the District Education Officer dated 16.6.1978 (Ex.P-4) is the document which is addressed to the President of the plaintiff-Municipality. On bare perusal of this letter of defendant, it is gathered that the plaintiff-Municipality is keen enough to get the Government School transferred in the disputed building. In the document it is also mentioned that in absence of relevant documents, the Government Girls School cannot be transferred in the disputed building and, therefore, the Government is unable to carry out the necessary repairs in the suit building. By this letter it has been requested to the plaintiff to carry out necessary repairs so that school building shall remain intact. Another important document is Ex.P-5 which is a letter of the Director, Local Self Government of the State of M.P. addressed to the Chief Municipal Officer of the plaintiff-Municipality. By this letter it has been asked to the State Government that what is the valuation of the disputed building and whether the building in question was given free of cost? If yes, then why it was given free of cost and if not what is the rent and whether Municipality has made any demand to realize the rent? Thus, defendants themselves are impliedly admitting the ownership of the plaintiff. 16. The letter dated 5.11.1977 (Ex.P-6) is another important document which is issued from the office of Divisional Education Superintendent of the Government of M.P. to the President of the plaintiff-Municipality. In this document, again it has been requested to the plaintiff that till the building in question is not transferred to the State Government, necessary repairs cannot be carried out by the State Government. In this document it has been requested to the plaintiff-Municipality that for a valid transfer, a gift-deed may be executed. It has further been requested to the plaintiff that necessary correspondence be made through the Principal of the Government School so that after the suit building is transferred to the State Government, necessary repairs etc. may be carried out from the Government side. 17. It has further been requested to the plaintiff that necessary correspondence be made through the Principal of the Government School so that after the suit building is transferred to the State Government, necessary repairs etc. may be carried out from the Government side. 17. In the minutes of the meeting dated 24.6.1995 which was presided over by the Collector of the District Hoshangabad, it was resolved that the suit building which is owned by the plaintiff and in which the Boarding house is also situated, in the inspection certain deficiencies were found by the Sub-Divisional Officer O.P. Shrivastava and it was resolved that those deficiencies be cured by the Municipality so that in the suit building the Central School may be opened. A copy of said resolution Ex.P-8 was sent vide covering letter Ex.P-7 by Collector, Hoshangabad to the plaintiff-Municipality. Thus, by keeping the documents Ex.P-4 to P-8 in juxtaposition to each other, it is gathered that not only once but every time and throughout, the defendants have admitted the ownership of the plaintiff since in several documents it has been categorically admitted expressly and impliedly by the defendants that plaintiff is the owner of the suit property and hence, the plaintiff is the owner of the suit property, this has been proved. 18. Apart from the aforesaid documents wherein the defendants have admitted the plaintiff’s ownership there is one more important document Ex.P-1 which is the resolution of the Municipality dated 23.9.1962 in which it has been resolved that in pursuance to the letter of the State Government No. I.M.P.L.E./A/62-63/11/820 dated 6.2.1962, Government Middle School, Seoni is to be upgraded and, therefore, in order to upgrade the Government School not only monetary contribution of Rs.10,000/- shall be given by the plaintiff but its building shall also be given to the State Government to start the school in the disputed building. 19. So far as the oral evidence is concerned, Ramesh Kumar Pandey the then Chief Municipal Officer of the plaintiff-Municipality has categorically proved the aforesaid documents and thus has proved the ownership of the plaintiff. 19. So far as the oral evidence is concerned, Ramesh Kumar Pandey the then Chief Municipal Officer of the plaintiff-Municipality has categorically proved the aforesaid documents and thus has proved the ownership of the plaintiff. The evidence of Surya Kant Awasthy (DW1) who was the earlier Principal of the Government School has categorically admitted in para 5 of his cross-examination that he has not seen any document in regard to ownership of the disputed building of the State Government nor he tried to gather any information in this regard and similar type of statement is of another witness M.A. Khan (DW2) who is also the Principal and has said that ownership of the suit building has been transferred to the State Government in this regard, he has not seen any document. Thus, the stand which has been taken by the defendants in the written statement which I have already quoted hereinabove not at all has been proved. According to me, when by several documents wherein the defendants have admitted the plaintiff’s ownership have been proved by the plaintiff. After having discharged its burden that the plaintiff is the owner of the said property, the burden of proof shifts upon the shoulders of the defendants to disprove the case of plaintiff by filing the orders referred in para 10 of the written statement. In the trial Court as well as before this Court, the defendants are banking upon the document Ex.D-2 which is a letter written by the Assistant Professor, Public Education to Joint Director, Education Department. In this letter, it has been written to the Joint Director that the schools which are being run by the Municipality and Municipal Corporation, they are transferred to the State Government but the ownership of the buildings in which the schools were being run, were still being with the said local bodies. The Education Department has not given any rent to those Institutions. The ownership of those buildings have already been given to the Education Department and now these buildings shall be deemed to be the buildings of the Education Department and, therefore, the necessary repairs are to be carried out by the State Government. The Education Department has not given any rent to those Institutions. The ownership of those buildings have already been given to the Education Department and now these buildings shall be deemed to be the buildings of the Education Department and, therefore, the necessary repairs are to be carried out by the State Government. According to me, even if the Assistant Director in its letter addressed to the Joint Director has opined a factual aspect, it would not mean that indeed the building in question has been vested in the State Government or the Education Department. It is only the opinion expressed by the Assistant Director in this letter. Thus, by this document Ex.D-2 it cannot be said that the ownership right has been vested in the State Government. 20. Even otherwise, admittedly the valuation of the suit building is more than Rs.100/- and if that would be the position, in terms of section 17(b) of Indian Registration Act, the registration of the documents is mandatory. It is not the case of the defendants that the building in question has been acquired or there is any conveyance deed in its favour. On the contrary, in the document Ex.P-6 it has been requested by the Divisional Education Officer to the President of the plaintiff to execute the gift-deed in favour of the State Government. It is not the case of defendants that in pursuance to the document, Ex.P-6 any gift-deed has been executed by the plaintiff and, therefore, the State Government is the owner of the suit property. The documents and the orders referred in the written statement are not proved. Even otherwise, by the said orders it cannot be said that a valid conveyance has been made in favour of the State Government by the plaintiff. Hence, according to me, the learned trial Court contrary to the plaintiff’s proved documents Ex.P-4 to P-8 has held that plaintiff has not proved its ownership over the suit property. According to me, the plaintiff has proved its ownership. 21. According to me, there cannot be a valid transfer of the ownership of the building in question to the State Government in absence of a valid conveyance deed. The term “Transfer of Property” has been defined in section 5 of the Transfer of Property Act, 1882 and it would be appropriate to quote section 5 which reads thus : “5. “Transfer of Property” defined. The term “Transfer of Property” has been defined in section 5 of the Transfer of Property Act, 1882 and it would be appropriate to quote section 5 which reads thus : “5. “Transfer of Property” defined. -- In the following sections, “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more living persons, or to himself and one on more other living persons; and “to transfer property” is to perform such act.” If the definition of the terms “transfer of property” is tested on the touchstone and anvil of the present factual scenario, it would reveal that by executing any conveyance deed by the plaintiff, to one or more defendants or any of its functionaries, the plaintiff is not bound by any order of the State Government which are not even proved and filed. 22. Resultantly, for the reasons stated hereinabove, this appeal succeeds and is hereby allowed. The impugned judgment of learned trial Court is hereby set aside and suit of plaintiff is decreed. The possession of the suit property has already been delivered to the plaintiff and this has been so held by learned trial Court while deciding issue No.2 and learned counsel for the parties also did not dispute to this factual aspect. No costs.