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2017 DIGILAW 1750 (ALL)

MOHD. ANIS v. NANHEY KHAN

2017-07-31

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—The plaintiff-appellant filed a suit being Original Suit No. 397 of 1972 for the removal of certain constructions and for a permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff over the property in dispute. Relief of permanent injunction restraining the defendants from digging the land and from obstructing the drain was also prayed for. 2. The suit was filed with the allegation that the plaintiff alongwith the defendant No. 5 was the owner in possession over the plot in dispute by means of sale-deeds dated 18.2.1971 and dated 22.7.1971. It has been alleged that the sale by means of which the property was transferred to the defendant No. 5, Mehdi Hasan was actually in favour of the plaintiff and that Mehdi Hasan was only a ‘Benamidar.’ The property was bought from the personal resources of the plaintiff and to obviate any confusion the respondent No. 5, Mehdi Hasan had entered into an agreement on 30.6.1971 by which it was agreed that the property would belong to the plaintiff as well. The defendants Ist Set had contested the suit and had stated that the suit itself was not maintainable, it being barred by the provisions of Order XXIII, Rule 1 C.P.C., as earlier the defendant No. 5, Mehdi Hasan himself had also filed Original Suit No. 370 of 1971 with the very same relief. It was stated that when Suit No. 370 of 1971 was withdrawn on 9.11.1975, no permission for filing a fresh suit was obtained. The Trial Court dismissed the suit filed by the plaintiff/appellant, observing that the plaintiff had not been able to establish his title over the disputed property. The First Appellate Court however allowed the appeal and decreed the suit, observing that the suit was maintainable and that the plaintiff was a co-sharer in the property in question alongwith the defendant No. 5, Mehdi Hasan. 3. The instant second appeal has been filed by the defendants Ist set. The appeal has been heard on the substantial questions of law at Serial Nos. 2, 3, 4, 5 and 6 which are being reproduced herein as under: 2. Whether in view of the fact that the two sale-deeds referred to above dated 22.7.1971 and 18.2.1971which were executed in favour of Mehdi Hasan alone, it could be held that the plaintiff was a co-sharer? 3. 2, 3, 4, 5 and 6 which are being reproduced herein as under: 2. Whether in view of the fact that the two sale-deeds referred to above dated 22.7.1971 and 18.2.1971which were executed in favour of Mehdi Hasan alone, it could be held that the plaintiff was a co-sharer? 3. Whether the agreement dated 30.6.1971 which was apparently a forged and fictitious document and being admittedly unregistered was admissible in evidence. 4. Whether the suit of the plaintiff-respondent was barred by the provisions of Order XXIII, Rule 1 of C.P.C.? 5. Whether the suit which was based on the Benami nature of sale-deed, the Court below having held that the sale-deeds in question were not Benami, had the jurisdiction to decree the suit? 6. Whether the agreement dated 30.6.1971 was covered by the provisions of Section 17 of Registration Act and was compulsorily registrable? 4. Learned counsel for the appellant has submitted that when the brother of the plaintiff who has been arrayed as defendant No. 5 had earlier filed a suit claiming to be the owner and that too with regard to the very same property for which the present suit was filed then the present suit would be barred and would not be maintainable as per Order XXIII, Rule 1 C.P.C. He has further submitted that the Appellate Court has carved out a case which was very different from the case which was pleaded by the plaintiff. The plaintiff had alleged that he was the owner of the property and that the defendant No. 5, Mehdi Hasan was in fact just a ‘Benamidar’ of the property. Learned counsel further submitted that by means of the agreement dated 30.6.1971, Mehdi Hasan had virtually transferred his rights in the property to the plaintiff and, therefore, the document had to be compulsorily registered under Section 17 of the Indian Registration Act. Yet, after culling out an altogether different case the First Appellate Court has held that the plaintiff was a co-owner with the defendant No. 5. 5. Learned counsel for the appellant has further submitted that when the Trial Court had disbelieved the sale-deeds saying that they were not proved, then the sale-deeds should have been first proved as per the provisions of the Indian Evidence Act. 6. 5. Learned counsel for the appellant has further submitted that when the Trial Court had disbelieved the sale-deeds saying that they were not proved, then the sale-deeds should have been first proved as per the provisions of the Indian Evidence Act. 6. In reply, learned counsel for the respondent has submitted that the First Appellate Court was right in holding that the suit was maintainable and for that purpose he has relied on Girdhari lal Bansal v. The Chairman, Bhakra Beas Management Board, Chandigarh and others, AIR 1985 Punjab and Haryana 219. Further, learned counsel for the respondent submitted that the First Appellate Court had not culled out a third case and in fact the case of the plaintiff was that he was the owner of the property in question and that is what the First Appellate Court had also held. He submitted that by the agreement dated 30.6.1971, no fresh rights had flown and that the agreement only recognized an already existing right. 7. I have heard the learned counsel for the parties and have perused the record. The suit as per the allegation made in the plaint, though was maintainable, the plaintiff, as has been observed by the Trial Court, could not establish his right and title over the property in dispute. The document dated 30.6.1971, by which the defendant No. 5 had agreed to transfer the ownership rights to the plaintiff was such a document by which rights in the property were being transferred for the first time. When the First Appellate Court disbelieved the case of the plaintiff that the ostensible owner, defendant No. 5 was only a ‘Benamidar’ then compulsorily it had to arrive at a conclusion that the plaintiff was an owner of the property in his own right. Whatever ownership the plaintiff was now deriving was from the agreement dated 30.6.1971. In the absence of the document dated 30.6.1971, the plaintiff would have no right in the property at all and thus the only document by which rights in the property were accruing to the plaintiff was the document dated 30.6.1971. Whatever ownership the plaintiff was now deriving was from the agreement dated 30.6.1971. In the absence of the document dated 30.6.1971, the plaintiff would have no right in the property at all and thus the only document by which rights in the property were accruing to the plaintiff was the document dated 30.6.1971. In Kale and others v. Deputy Director of Consolidation and others, (1976) 3 SCC 119 , the Hon’ble Supreme Court has laid down that the members of a family who were parties to a family arrangement must have some antecedent title, claim or interest in the property and only then they can enter into a family settlement which, even if is not registered, can be given effect to. However, if a certain family arrangement is made and is reduced to writing and through it rights are flowing for the first time then it has to be compulsorily registered. 8. No antecedent right was being recognized by agreement dated 30.6.1971. The ownership right actually was flowing from the document dated 30.6.1971. Thus I hold that the document dated 30.6.1971, which was an unregistered document did not pass any title to the plaintiff. This being the case the plaintiff had no right in the property and thus the First Appellate Court wrongly held that the plaintiff had a right in the property as a co-owner. The suit also, thus, could not be maintained. The substantial questions of law are thus answered. 9. The second appeal is allowed and the suit is dismissed.