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2016 DIGILAW 184 (UTT)

Sumit Kumar v. Naresh Kumar

2016-05-02

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. The above-titled second appeals are being taken up together as the same have arisen out of a common judgment and order, although S.A. No. 61 of 2016 is still lying defective. 2. Heard Mr. A.S. Rawat, learned Senior Counsel on the question of admission of appeals in view of the urgency application (IA 2150/2016) as also the Stay Application (CLMA 11397/2015) filed in S.A. No.157 of 2015, disclosing the reason that the respondent Naresh Kumar is proceeding with the execution of the decree passed by both the courts below in his favour. 3. The second appeal bearing No.157/15 was filed on 28.9.2015 but for one reason or the other, the appellants could not argue it and now, they have come up by moving the applications, stated above. So, this Court has rendered hearing to learned Counsel for both the parties on the question of admission itself. 4. The backdrop arising out of the present appeals is that the property, in question, was originally owned by Smt. Shanti Devi through a sale deed executed in her favour on 26.3.1971. She died in 1982. This property was inherited by her two sons. 5. The version of the appellants is that Mr. Sunny Lal (one of the sons of Shanti Devi) executed the gift deed on 21.8.1984 of the property inherited/owned by him in favour of Mr. Satish Kumar (real brother-in-law/sister’s husband of Sunny Lal). At the same time, Mr. Sunny Lal sold the selfsame property to Mr. Naresh Kumar through a sale deed, executed on 5.6.1986 which was registered on 18.6.1986. Mr. Satish Kumar instituted the O.S. No.330 of 1992 seeking injunction against Mr. Naresh Kumar which was resisted by way of filing the written statement in the year 1993. The suit was decreed on 26.9.2005 but when Appeal No.75 of 2005 was filed by Mr. Naresh Kumar, it was accepted and the judgment dated 26.9.2005 was set aside. The case was remanded back by the Additional District Judge to the Trial Court for re-consideration of the matter on merits. 6. So, the trial again proceeded. Learned Civil Judge (Sr. Div.), this time, dismissed the suit of the plaintiff Satish Kumar (now having been succeeded by his legal heirs) and at the same time, the counterclaim filed by Mr. The case was remanded back by the Additional District Judge to the Trial Court for re-consideration of the matter on merits. 6. So, the trial again proceeded. Learned Civil Judge (Sr. Div.), this time, dismissed the suit of the plaintiff Satish Kumar (now having been succeeded by his legal heirs) and at the same time, the counterclaim filed by Mr. Naresh Kumar was decreed, directing the plaintiff to handover the possession of the disputed property to Mr. Naresh Kumar within thirty days. 7. Legal heirs of Mr. Satish Kumar as also Mr. Sunny Lal preferred a common Civil Appeal No.102 of 2012 against such judgment whereas no separate appeal was preferred against the decreeing of counterclaim. Vide judgment dated 3.9.2015, that appeal stood dismissed on merits and thus, the decree passed by the Civil Judge (Sr. Div.) Dehradun on 13.9.2012 was affirmed. 8. Judgment dated 3.9.2015 passed by the First Additional Sessions Judge, Dehradun has been challenged before this Court by way of filing two Special Appeals, titled above. 9. Learned Senior Counsel on behalf of the appellants has argued that the Trial Court has passed its judgment on the basis of Section 95 of the Indian Evidence Act, 1872. For the sake of convenience, the said section is quoted herein-below: - “95. Evidence as to document unmeaning in reference to existing facts- When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.” 10. It was vehemently contended that since the gift deed had been executed on 21.8.1984 but due to the illiteracy/non-understanding of the parties regarding the legal requirement of document, it could not be got registered and now the same has been registered on 28.9.2012. So, it was argued that once the gift deed had been executed, Mr. Sunny Lal could not execute the sale deed on 5.6.1986/18.6.1986. This Court is not ready to accept such a contention and rejects the same out-rightly because non-understanding/ignorance of any law, which is the pre-requisite of the statute, cannot be excused on the grounds which are being raised, herein, by the appellants. Sunny Lal could not execute the sale deed on 5.6.1986/18.6.1986. This Court is not ready to accept such a contention and rejects the same out-rightly because non-understanding/ignorance of any law, which is the pre-requisite of the statute, cannot be excused on the grounds which are being raised, herein, by the appellants. The gift deed, unequivocally, is compulsorily required to be registered, not only under Section 123 of the Transfer of Property Act but also in view of the provisions of Section 17 of the Registration Act, 1908, and such gift deed, if unregistered, leaves no impact, as is provided under Section 49 of the Registration Act. Getting the gift deed registered on 28.9.2012 is obviously to obviate the concurrent decrees of two Courts which is impermissible and thus, cannot be accepted; more so because when the written statement had been filed in the year 1993, no effort was ever made by Mr. Sunny Lal seeking cancellation of the sale deed executed on 5.6.1986/18.6.1986. 11. In the opinion of this Court, if the appeals like the present ones are admitted, then there will be no end of litigation and it will highly abridge the legal rights of a person holding a valid sale deed in his favour. So, these appeals have no force and are thus, dismissed at the threshold. 12. All the pending applications in both the above-titled appeals stand disposed of accordingly.