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Madhya Pradesh High Court · body

2014 DIGILAW 109 (MP)

Kishorilal Tiwari v. Kandhilal

2014-01-22

U.C.MAHESHWARI

body2014
Judgment The appellant/defendant has filed this appeal under Section 100 of the CPC, being aggrieved by the judgment and decree dated 31.07.2013 passed by Additional Judge to the Court of District Judge Sihora, District Jabalpur, in Civil Regular Appeal No.61-A/2013 whereby, dismissing his appeal, the judgment and decree dated 28.08.2009, passed by IIIrd Civil Judge Class-II Sihora, in Civil Original Suit No.31-A/08, decreeing the suit of the respondent/plaintiff against him for declaration and perpetual injunction with respect of the agricultural land described in the plaint, has been affirmed. 2. The facts giving rise to this appeal in short are that, the respondent herein has filed the impugned suit for declaration and permanent injunction against the appellant with respect of the agricultural land bearing No. 34/4 Area 1.416 Hectare, (renumbered in the fresh settlement as Khasara No.55 area 1.41 Hector) situated in Patwari Halka No.7 at village Nigwani, contending that he being title holder is in possession of such land on the strength of the registered sale deed dated 10.09.1970 (Ex.D.1) executed by appellant in his favour. The appellant did not have any authority to keep or continue his name as Bhoomiswami in the revenue record on such land. The order dated 06.10.2012 passed by Naib Tahsildar in revenue case No.22.A/6/98-99, directing the mutation of such land in the name of appellant is ab-initio void. As per further averment that the alleged transaction of the sale was neither the transaction of mortgage nor had taken place with the agreement to sale again to the appellant. It is also stated that with malafide intention, the appellant on the basis of forged and fabricated agreement to sale, has got mutated such land in his name by the aforesaid order of the Naib Tahsildar. The agreement was not only forged and fabricated document but the same had not given any right or title to the appellant. In any case, the agreement on which the mutation order was obtained itself, had not given any right or title of the land in favour of the appellant and in such premises, the impugned suit was filed with the relief mentioned above. 3. In the written statement of the appellant by admitting the execution of the aforesaid registered sale deed by him in favour of the respondent, the other facts stated regarding title and possession of the respondent are denied. 3. In the written statement of the appellant by admitting the execution of the aforesaid registered sale deed by him in favour of the respondent, the other facts stated regarding title and possession of the respondent are denied. In addition to it, in special pleadings, it is stated that the respondent/plaintiff has not come with clean hands. The respondent was the money lender and the appellant was in need of money and due to that, in the month of August, 1967, he obtained Rs.700/- as loan on interest @ 3% per month from the respondent so the interest sum has become Rs.756/- in three years and to carry out the aforesaid sale deed vide dated 10.09.1970, Rs.800/- was spent by the respondent. Accordingly, the total sum of the loan had become (Rs.700+756+800) total Rs.2,256/- and that's why on execution of the sale deed Rs.2,300/- was shown the remaining consideration. As the respondent was the money lender, the appellant had mortgaged his land with him in consideration of the sum of the loan in the shape of the aforesaid sale deed dated 10.09.1970, therefore, simultaneously, they also entered into an agreement on the same day whereby, the term to re-sale the aforesaid land in favour of the appellant was finalized. According to it, the respondent had agreed to return the land and execute the sale deed in favour of appellant on repayment of the sum of the loan. On the terms of such agreement, the appellant went to the respondent to pay the aforesaid sum with a prayer to execute the sale deed in his favour, but the respondent refused to take such sum and also denied to execute the sale deed of such land in favour of the appellant. Beside the impugned case, the respondent had also kept the land of Neema Bai and the house of some Mahila Kotwar under the mortgaged in the shape of registered sale transaction and lateron, did not redeem the same and become the owner of such property contrary to the rights of such mortgagers. Accordingly, the respondent is used to snatch the property of others. Accordingly, the respondent is used to snatch the property of others. In further averments, it is stated that the respondent being money lender had not taken any license to carry out such business and the alleged sale deed dated 10.09.1970 being executed on the expenses of the appellant, to secure the repayment of the loan had not conferred any right or title to the respondent in the disputed land. The possession of the same was never remained with the respondent even after execution of the sale deed. Only with intention to snatch the property of the appellant, the impugned suit after passing the mutation order by the revenue authorities in favour of appellant and dismissing the appeal of the respondent filed against such order by the sub-Divisional Officer, instead to file further appeal in the Court of Commissioner, the respondent has filed the impugned suit to snatch the property of the appellant. It is further stated that the order of the mutation passed by revenue Court could not be declared to be ab-initio void as the same is out of the territorial jurisdiction of the Civil Court. With these averments, the prayer for dismissal of the suit is made. 4. In view of the aforesaid pleadings, as many as four issues were framed by the trial Court on which the evidence was adduced by the parties. On appreciation, the suit of the respondent was decreed by holding him to be the Bhoomiswami and title holder of the land with possession. The abovementioned mutation order dated 6.10.2012 was also declared to be ab-initio void and the decree of perpetual injunction restraining the appellant to interfere in title and possession of such land was passed. Being dissatisfied with such judgment and decree of the trial Court, the appellant approached the appellate Court but on consideration by affirming the judgment and decree of the trial Court, the same was dismissed on which the appellant/defendant has come to this Court with this appeal. 5. Being dissatisfied with such judgment and decree of the trial Court, the appellant approached the appellate Court but on consideration by affirming the judgment and decree of the trial Court, the same was dismissed on which the appellant/defendant has come to this Court with this appeal. 5. Shri R.K. Verma along with Shri Sourabh Shrivastava, learned appearing counsel of the appellant's after taking me through the record of the Courts below along with impugned judgments argued that any of the Courts below have not considered the actual legal question involved in the matter and without considering the same with proper approach, the suit of the respondent has been decreed by the trial Court and on term of the appellate Court, such decree was affirmed under the wrong premises. In continuation he said that, it is undisputed and admitted fact that initially the impugned land was belonging to the appellant/defendant as Bhoomiswami and the alleged sale deed dated 10.09.1970 was executed by the appellant in favour of the respondent but in fact, it was not a out right sale, but was a loan transaction. The appellant was in need of the money and the respondent being money lender, he took the loan from him and as a security of such loan and it's interest, the aforesaid sale deed was executed and it's expenses also afforded by the respondent, but the same was a part of loan transaction and there was intention of the parties to return the aforesaid land by the respondent to the appellant by executing the sale deed on repayment of entire sum of the loan and, therefore, the possession of the disputed land was not given to the respondent despite stating the delivery of the same in the sale deed the same was remained with the appellant and in that respect an agreement to sale (Ex.D.1) had also taken place independently with the terms that on repayment, the respondent will execute the sale deed of such land in favour of the appellant. Pursuant to such agreement, to perform the part of his contract, the respondent went to the appellant to pay such sum, but the same was not accepted by him and was also not prepared to execute the sale deed in favour of the appellant. Pursuant to such agreement, to perform the part of his contract, the respondent went to the appellant to pay such sum, but the same was not accepted by him and was also not prepared to execute the sale deed in favour of the appellant. On which on the strength of the aforesaid agreement to sale the appellant approached the revenue authorities to get mutated the disputed land again in the name of the appellant by scoring out the name of the respondent recorded on the strength of the aforesaid sale deed. Such mutation proceedings was duly contested by the parties and ultimately by the aforesaid order of the revenue Court by allowing the application of the appellant, the land was directed to be mutated in his name. On filing the appeal before the Sub-Divisional Officer by the respondent, the same was dismissed. Such dismissal was challenged before the Commissioner in the first inning of the revenue case, but on consideration by setting aside the order of Tahsildar as well as of the SDO, the case was remitted back to the Tahsildar with some direction to decide afresh. In the light of such direction of the Commissioner, again the case was decided by the Naib Tahsildar by order dated 6.10.2012 in favour of the appellant and such mutation order was again challenged in appeal before the Sub- Divisional Officer by the respondent but on consideration such appeal was also dismissed. Thereafter, such order of the revenue Court was not challenged by the respondent before the Commissioner, the superior revenue authorities and has filed the suit. Firstly, he said that against the order of the revenue Court which was passed in accordance with law, the Civil Court did not have jurisdiction to entertain the suit and set aside such order of revenue Courts, secondly said that in view of the loan transaction of the parties, the decree of declaration as prayed by the respondent/plaintiff in the suit could not have been passed. In continuation he said that the Courts below concurrently committed error in holding the above-mentioned agreement to sale (Ex.D-1) is inadmissible in the lack of registration. In continuation he said that the Courts below concurrently committed error in holding the above-mentioned agreement to sale (Ex.D-1) is inadmissible in the lack of registration. As per such findings, the registration of such agreement dated 10.9.1970, was necessary under the law and in the lack of such registration, the same could not be looked into for any purpose while, in view of the then provision of Section 17 of the Registration Act, the registration of the agreement to sale was not required and in such premises, the unregistered agreement was permissible and, therefore, the Courts below have committed grave error in giving the aforesaid finding contrary to the law applicable to the aforesaid agreement. In continuation he said that, on the basis of aforesaid agreement, it is apparent that on the date of the sale deed dated 10.09.1970 (Ex.P.1) there was a condition and understanding between the parties to resell the property to the appellant, then the findings of the Court below, that such condition being not inserted in the sale deed (Ex.P/1), such transaction of sale could not be deemed to be transaction of mortgage on the basis of separate agreement, is not sustainable. As such, in view of such agreement to sale, the suit of the respondent should not have been decreed by any of the Courts below and, therefore, it is a case in which the Courts below have apparently ignored the then provision of Section 17 of the Registration Act so also other related provision of Transfer of Property Act and, therefore, the substantial question of law as proposed in the appeal memo requires answer at this stage under Section 100 of the CPC., and prayed to admit the appeal on such proposed substantial questions of law. He also placed his reliance on a decision of the apex Court in the matter of Avinash Kumar Chauhan vs. Vijay Krishna Mishra reported in 2009(2) SCC 532 . 6. Keeping in view the arguments advanced, I have carefully gone through the record of the Courts below along with the impugned judgments. 7. It is undisputed fact in the matter that the sale deed dated 10.09.1970 (Ex.P.1) with respect of the land in dispute was executed by the then Bhoomiswami, the appellant/defendant, after taking the consideration, in favour of the respondent. 7. It is undisputed fact in the matter that the sale deed dated 10.09.1970 (Ex.P.1) with respect of the land in dispute was executed by the then Bhoomiswami, the appellant/defendant, after taking the consideration, in favour of the respondent. As per averments of such sale deed Ex.P.1, the possession of the land was also given to the respondent and it is also apparent from the available revenue record that on the strength of such sale deed, the name of the respondent was also mutated as Bhoomiswami in the revenue record by the revenue authorities and subsequent to such mutation, at any point of time either independently or on the strength of the aforesaid agreement, no registered sale deed for resell of the property by the appellant to the respondent had taken place. Only on the strength of alleged agreement dated 10.09.1970 (Ex.D.1) for which no averments were made in the sale deed Ex.D.-1, the appellant had filed the application for mutation of his name in the revenue record by scoring out the name of the respondent. Although, the execution of such agreement has been denied by the respondent. In any case, for the sake of argument if it is deemed that such agreement had taken place between the parties then on the basis of only such agreement Ex.D.1, the appellant did not have any authority to get mutated the land in his name. It is trite law that unless the property is acquisitioned through admissible document like sale deed or otherwise permissible under the law mere on the basis of the agreement or it's term, no mutation could be carried out by the revenue authorities at the place of recorded Bhoomiswami. The contract to sale is defined in last part of Section 54 of the Transfer of Property Act. The same is read as under:- "54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. .................................... .................................... Contract for sale.- A contract for the sale of immoveable 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." 8. .................................... .................................... Contract for sale.- A contract for the sale of immoveable 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." 8. In view of the aforesaid definition of contract for sale, for the sake of the arguments the alleged agreement (contract) to sale (Ex.D.1) projected by the respondent is taken into consideration as admissible document even then it was only the document contending the terms and conditions on which the sale was to take place in future. But such contract itself had not given any right and title to the respondent in the property. So in such premises, in view of the then existing provision of Section 17 of the Registration Act if such agreement was not necessary to get registered in the year 1970 even then, it had not given any right title to the appellant, and the same could not be treated to be valid document for acquisition of the title and the possession of the property in dispute to the appellant to get mutated the same in his name unless according to it's terms, the sale deed had taken place. As such the agreement (Ex.D/1) was not sufficient to pass the order of mutation in favour of the appellant by Tahsildar and it is apparent fact that only on the basis of such agreement, mutation order was passed by the Tahsildar and on filing the appeal by the respondent against such order, the same was dismissed by the Sub-Divisional Officer and again on filing the second appeal before the Commissioner, without considering such aspect, the order of the Tahsildar as well as of SDO were set aside and the case was remitted back to the Tahsildar with some direction to enquire the facts of the loan transaction and decide the matter afresh. But even after remanding the matter to Naib Tahsildar, such authority without considering the aforesaid aspect, again passed the mutation order 6.12.2000 on the basis of aforesaid agreement (Ex.D/1) in favour of the appellant. The same being contrary to the aforesaid mandatory provision of the definition of contract to sale, is not sustainable. But even after remanding the matter to Naib Tahsildar, such authority without considering the aforesaid aspect, again passed the mutation order 6.12.2000 on the basis of aforesaid agreement (Ex.D/1) in favour of the appellant. The same being contrary to the aforesaid mandatory provision of the definition of contract to sale, is not sustainable. In such premises, for the sake of arguments if the findings of the trial Court as well as of the appellate Court holding the aforesaid agreement in the lack of registration as per requirement of Section 17 of the Registration Act, is not admissible by framing the substantial questions of law, is set aside even then, on the basis of such agreement (Ex.D/1) in view of the foresaid discussions based on the provision of Section 54 of the Transfer of Property Act, the impugned suit of the respondent based on the strength of registered sale deed (Ex.P/1) could not be dismissed by setting aside the impugned judgments of the Courts below in toto. It is settled proposition of law that no case could be entertained by the Court to decide any academic question if even on deciding such question, no fruitful purpose is solved in the matter. In such premises, I have not found any material circumstance in the matter giving rise to any question of law rather then the substantial question of law requires any consideration under Section 100 of the CPC. 9. Apart the aforesaid, on going through the entire record, I have found that subsequent to the aforesaid agreement dated 10.09.1970 till filing the impugned suit by the respondent for declaration and permanent injunction, the appellant did not take any steps to file the suit for Specific Performance on the strength of such agreement to sale against the respondent stating that inspite his readiness and willingness to fulfill his part of the contract, the respondent has failed to perform his part of the agreement. So, in the lack of such suit also, the approach of the Courts below based on the registered sale deed dated 10.09.1970 (Ex.P.1) could not be said to be contrary to any law or the procedure and in such premises also, this appeal is not involving any substantial question of law at this stage. 10. So, in the lack of such suit also, the approach of the Courts below based on the registered sale deed dated 10.09.1970 (Ex.P.1) could not be said to be contrary to any law or the procedure and in such premises also, this appeal is not involving any substantial question of law at this stage. 10. It is settled proposition of law that the validity of the contract to sale could only be examined by the Civil Court, if the matter brought before such Court in accordance with the procedure and within limitation and not by the revenue Court. In such premises, it could be said that unless after giving recognition to the impugned agreement Ex.D.1, the decree for Specific Performance is passed by the Civil Court, the revenue Court did not have any authority to draw the inference in favour of such party like the appellant that on the strength of the agreement to sale, he has acquired the right and title over the property in dispute and entitled to get mutated such property in his name in the revenue record. So in such premises also, I have not found any substance to frame any proposed substantial questions of law. 11. So far as the case law of the apex Court in the matter of Avinash Kumar Chauhan (supra) is concerned, this Court did not have any dispute regarding the principle laid down in such case, but in view of the abovementioned factual matrix of the case at hand, the same being distinguishable on facts, is not helping to the appellant. Such case was decided by the apex Court taking into consideration the question of admissibility of the concerning documents in the light of available factual matrix of such cited case and, therefore, before applying such principle to the present case, this Court is also bound to examine the matter in the available scenario of the case at hand. On examining the same, in view of the abovementioned circumstances of the case at hand even after holding the impugned agreement dated 10.9.1970 (Ex.D.1) to be admissible, the impugned concurrent decree of declaration in favour of the respondent based on a registered sale deed executed by the appellant could neither be set aside nor the suit could be dismissed by this Court. 12. 12. In view of the aforesaid discussions, I have not found any perversity, illegality, irregularity or anything against the propriety of law in the impugned judgments of the Courts below giving rise to any question of law rather then the substantial question of law in the matter. Consequently, this appeal being devoid of any merit, deserves to be and is hereby dismissed at the initial stage of motion hearing. 13. There shall be no order as to the costs.