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2017 DIGILAW 625 (KER)

P. M. Mathew v. Antony Mathew

2017-03-30

B.KEMAL PASHA

body2017
JUDGMENT B. Kemal Pasha, J. 1. Challenging the judgment and decree passed by the Additional District Court, Pathanamthitta in A.S.No.72/08, the 2nd defendant in O.S.No.250/04 of the Munsiffs Court, Ranny, has come up in second appeal. The first defendant is no more. His legal representatives are the appellant as well as respondents 2 to 6. 2. The suit was originally filed by the first respondent herein as plaintiff as a suit for perpetual injunction, for restraining the defendants and the persons claiming under them from causing any obstructions to the possession and enjoyment of the plaintiff over the plaint schedule property, as well as the private road constructed through the same, and also from changing the lie of the said private road, and from committing any waste on the plaint schedule property and the said private road. 3. During the pendency of the suit, the 2nd defendant, who is the appellant herein, purchased the plaint schedule property from the legal representatives of deceased Vasudevan, who was the original patta holder of the property, and consequentially, the appellant was impleaded in the suit as the 2nd defendant. Initially, the suit was filed against the first defendant alone. The first defendant is the father of the 2nd defendant. A relief has been incorporated in the plaint for declaring Ext.B1 as null and void. 4. The Munsiffs Court, Ranny dismissed the suit. Challenging the said judgment and decree, the plaintiff went up in appeal before the District Court, Pathanamthitta through A.S. 72/2008. The learned Additional District Judge, Pathanamthitta allowed the appeal in part, and granted a judgment and decree of perpetual injunction restraining the appellant and the other respondents in the appeal from causing any obstructions to the plaintiff's possession and enjoyment of the plaint schedule property and the private road situated therein, and also from committing any waste thereon. In paragraph 28 of the impugned judgment the lower appellate court has gone to the extent of stating that the declaration sought for by the plaintiff as such cannot be granted solely because of the fact that the executants of Ext.B1 were not made parties to the suit. Thereafter, it has been stated that "But all the same plaintiff can ignore Ext.BI it being a document created on falsehood." 5. Thereafter, it has been stated that "But all the same plaintiff can ignore Ext.BI it being a document created on falsehood." 5. This Court has admitted this second appeal on the following substantial questions of law: "(1) When Ext.A2 shows that it is an assignment deed executed by Thomas Abraham, Annamma and Scaria in favour of Tharapel Mathai Antorny for a consideration of Rs. 8,750/-, whether the unregistered deed is valid in law? (2) When Ext.A6 sale deed executed by Vasudevan in favour of PW7 Raghavan Nair and his wife Ponnamma shows that the property which was earlier in his possession under an agreement for sale was transferred thereunder and the property so assigned excludes the disputed 35 cents, whether first appellate court was justified in finding possession of the said excluded 35 cents with the plaintiff, as plaintiff is claiming the right obtained from the said Raghavan Nair? (3) Whether the first appellate court on the evidence, was justified in holding that legal heirs of Vasudevan have no right to assign the property, by Ext.B1 sale deed? (4) Whether the first appellate court on the evidence was justified in holding that plaintiff established possession of the disputed 35 cents and granting a decree for injunction based on that finding?" 6. Heard the learned counsel for the appellant and the learned Senior Counsel for the first respondent. 7. The learned counsel for the appellant has argued that the plaintiff has no title over the plaint schedule property and some false documents were cooked up and created through PW7, who is a document writer, in order to forward false claims over the plaint schedule property. It has been argued that the said property exclusively belongs to the 2nd defendant, who is the appellant herein through Ext.B1 sale deed. According to the learned counsel for the appellant, all the findings entered by the lower appellate court are apparently unfounded and baseless, and the lower appellate court ought not to have entertained the appeal itself. 8. Per contra, the learned Senior Counsel for the first respondent has argued that in order to obtain a decree for perpetual injunction, the plaintiff need only prove his possession over the property and he need not assert or claim his title over the property. 8. Per contra, the learned Senior Counsel for the first respondent has argued that in order to obtain a decree for perpetual injunction, the plaintiff need only prove his possession over the property and he need not assert or claim his title over the property. It is argued that the plaintiff could clearly prove his title over the plaint schedule property and therefore, the impugned judgment and decree of perpetual injunction is not liable to be interfered with. 9. Through the plaint, the plaintiff has claimed that he is entitled to the title and possession over 36 cents of property in Sy.No.780/1/2 of the Kollamula Village which is the plaint schedule property. According to him, the said properties devolved on him through Ext.A1 sale deed in respect of one cent of property out of 36 cents and the remaining 35 cents of property devolved on him through a contract executed by Thomas Abraham, his wife Annamma and their son Scaria on 18.06.1979, which is Ext.A2. According to the plaintiff, he had purchased the said properties for constructing a road to his house and thereafter he constructed a road having a width of 12 feet and a length of 150 mtrs as a private road leading to his house. The defendants are residing in their property situated at the eastern side of the said private road. The defendants are making use of the pathway having a width of 3 feet passing through the side of their property. The defendants attempted to construct a road from their property to the private road of the plaintiff and hence the suit. 10. The first defendant initially filed a written statement, and after the amendment of the plaint, again filed an additional written statement. In the written statement the first defendant contended that the road passing through the side of the property of the defendants is not a private road belongs to the plaintiff, and that the said road is a public road being made use of by the plaintiff, the defendants as well as other people of the locality. It was also contended that the said road was a motorable road, jointly possessed by the plaintiff and the first defendant and therefore, the plaintiff cannot claim any special right over the said property. It was also contended that the said road was a motorable road, jointly possessed by the plaintiff and the first defendant and therefore, the plaintiff cannot claim any special right over the said property. The 2nd defendant filed the written statement contending that the 2nd defendant has purchased 35 cents out of the plaint schedule property from the legal representatives of Vasudevan through Ext.B1 and therefore, the plaintiff cannot maintain a suit of this nature. 11. The question as to how the plaintiff had allegedly derived title or possession or any other right over the property has to be considered. This Court is taken aback to see that several documents which ought not to have been admitted in evidence were permitted to be marked on the side of the plaintiff. The plaintiff has claimed title and possession over 35 cents of property out of the plaint schedule property through Ext.A2. Ext.A2 is a document, the nomenclature of which is that of a contract. At the same time, it seems that the said document is executed as if it is a sale deed. Through the said document, it has been clearly recited that 35 cents of property in Sy.No.780/1/2 has been sold to the plaintiff by Thomas Abraham, his wife Annamma and their son Scaria through Ext.A2 on 18.06.1979 for a total consideration of ?8,750/-. The said unregistered document is prepared in favour of the father of the plaintiff in a stamp paper worth ?3/-. The same was prepared by PW7 as scribe. In Ext.A2, the vendors had shown their prior document in respect of the property as sale through a contract executed in their favour by one Philip on 09.04.1979. 12. The said unregistered document allegedly obtained from Philip on 09.04.1979 is Ext.A5. Ext.A5 is also prepared by PW7. The same is prepared in a stamp paper worth ?1.50. The nomenclature of the said document is that of an assignment deed. The contents of the said document shows that it was executed in the form of a sale deed. Even though the document was allegedly executed on 09.04.1979, it seems that the stamp paper was purchased on 01.07.1975. Apart from that, the said stamp paper was purchased in the name of one Hassan Rawuther, who has no connection with any of the transaction involved in the case. Even though the document was allegedly executed on 09.04.1979, it seems that the stamp paper was purchased on 01.07.1975. Apart from that, the said stamp paper was purchased in the name of one Hassan Rawuther, who has no connection with any of the transaction involved in the case. Ext.A2 as well as Ext.A5 are unregistered documents, even though immovable property worth more than ?100 were allegedly sold through Exts.A2 and A5. 13. Ext.A5 shows the prior document of Philip in respect of the said property as Ext.A4 sale deed dated 01.05.1973 executed by PW7 in his favour. PW7 is the scribe in Ext.A5 also. 14. Ext.A4 is dated 01.05.1973 prepared in a stamp paper worth ?2. The nomenclature of the document is that of a contract. PW7 had claimed in Ext.A4 that through a contract he had purchased 35 cents of property from K. Vasudevan and that PW7 has accepted an amount of ?1,500/- being part of consideration from the said Philip. The said document also is not a registered one. In Ext.A4 it has not been mentioned that the said 35 cents of property was sold by PW7 to the said Philip; whereas, the terms reveal that it was only an agreement for sale, by undertaking that the sale deed would be executed on the payment of the balance consideration. Admittedly, no sale deed was executed by PW7 in favour of Philip. Matters being so, the said Philip cannot claim any transfer of title of the property in his favour. It has also not been mentioned in Ext.A4 that the possession of the property was handed over to the said Philip. Therefore, as rightly pointed out by the learned counsel for the appellant, Philip, who is the so-called vendor in Ext.A5, had no title or possession over the property to convey to the so-called vendors of Ext.A2. Evidently, the plaintiff cannot claim any title or possession on the basis of Exts.A2, A5 and A4. 15. From the aforesaid documents, it is evident that all the said mischief was committed by PW7, who is a document writer. Even in the stamp paper in which Ext.A2 was cooked up, it seems that in a different ink the number and the date of stamp paper are seen subsequently inserted. There is everything to suspect that the said stamp paper was also purchased subsequently and has been made use of, for creating Ext.A2. Even in the stamp paper in which Ext.A2 was cooked up, it seems that in a different ink the number and the date of stamp paper are seen subsequently inserted. There is everything to suspect that the said stamp paper was also purchased subsequently and has been made use of, for creating Ext.A2. 16. Similar is the case with Ext.A5 also. The stamp paper worth ?1.50 in which Ext.A5 was prepared was one purchased by one Hassan Rawuther, who has no connection with any of the transactions involved in the case. Further, the said stamp paper was purchased on 01.07.1975 by the said Hassan Rawuther and the same was issued from the Sub Treasury on 03.06.1975. At the same time, Ext.A5 was executed on 09.04.1979, ie., around five years after the purchase of the stamp paper by the said Hassan Rawuther. No doubt, Exts.A2, A5 and A4 are falsely cooked up and created by PW7, who is a document writer. 17. PW7 claims that he had purchased the property having an extent of three acres and 89% cents from K. Vasudevan in the year 1972 and PW7 was put in possession of the property in the year 1972. At the same time, it has come out that even the said K. Vasudevan obtained patta for the property in the year 1973 only. It was through Ext.A6, PW7 and his wife Ponnamma had purchased the properties covered by Ext.A6 on 13.04.1976 from K. Vasudevan. Evidently, through Ext.A6, PW7 and his wife had purchased only three acres and 14 cents of property, after excluding 35 cents from the northern portion and 40 cents from the eastern portion of the total extent of 3 acres and 89% cents of property. 18. Even though the learned Senior Counsel for the first respondent has argued that prior to the execution of Ext.A6, PW7 had disposed of the said 35 cents of property and 40 cents of property and therefore, the said 75 cents of property could not be included in the property sold through Ext.A6, in the absence of any such recitals in the said document, it cannot be said that PW7 or his wife were put in possession of those properties in the year 1972 by the vendor of Ext.A6. It has not been shown in Ext.A6 that PW7 was put in possession of the said 35 cents and 40 cents by K. Vasudevan in the year 1972. If such an argument forwarded by the learned Senior Counsel is accepted, such a recital, that PW7 was put in possession of property covered by Ext.A6 as well as the other 35 and 40 cents of property, should have been there in Ext.A6. 19. In Ext.A6 also it was shown that the properties being enjoyed by K. Vasudevan were handed over to PW7 in the year 1972. The said aspect cannot be believed because of the fact that in the year 1972 even K. Vasudevan had not obtained patta for the property. Had the property been transferred prior to 1973, K. Vasudevan could not have been obtained patta in respect of the said property in the year 1973. Therefore, it seems that the incorporation of such a recital regarding the handing over of the property in the year 1972 has been fraudulently incorporated by PW7 in Ext.A6. After getting such a recital incorporated in Ext.A6, he prepared Exts.A2, A5 and A4 and that is why a registered document could not be created in respect of 35 cents and 40 cents of property and the same could not be disposed of through registered documents. 20. There is absolutely nothing to show that the title of 35 cents of property included in the plaint schedule property was transferred by K. Vasudevan in favour of any other person. Therefore, the title remained with him. Subsequently, the 2nd defendant, who is the appellant herein had purchased the said 35 cents of property from the legal representatives of K. Vasudevan. The lower appellate court ought not to have found that the plaintiff can ignore the said document. The appellant alone has better title in respect of the property than the one claimed by the plaintiff. The claim of the plaintiff regarding the title of the property is baseless and unfounded. Exts.A2 and A5 and A4 have no value at all. The same could not have been admitted in evidence in the suit. As per Section 17(1)(b) of the Registration Act, 1908 a sale deed is a compulsorily registrable document in case the value of the immovable property covered by it exceeds ?100/-. 21. Exts.A2 and A5 and A4 have no value at all. The same could not have been admitted in evidence in the suit. As per Section 17(1)(b) of the Registration Act, 1908 a sale deed is a compulsorily registrable document in case the value of the immovable property covered by it exceeds ?100/-. 21. The consequences of non-registration of such a compulsorily registrable document is covered by Section 49 of the Registration Act, which says: "Effect of non-registration of documents required to be registered: No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: PROVIDED that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument." 22. The learned counsel for the appellant has invited the attention of this Court to the decision in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, AIR 2012 SC 206 wherein it was held: "Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter." It was concluded in that case that therefore, the unregistered document involved therein does neither convey any title nor any interest in the immovable property. 23. 23. In K.B. Saha & Sons Pvt. Ltd. v. Development Consultant Ltd., 2008 (8) SCC 564 it was held in paragraph 21: "From the principles laid down in the various decisions of this Court and the High Courts, as referred to herein above, it is evident that :- 1. A document required to be registered 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 immoveable 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." 24. Apart from the above, Section 54 of the T.P. Act says that: ""Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised and such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument." 25. In the case of Exts.A2, A5 and A4, it has to be noted that the same are hit by Section 54 of the Transfer of Property Act, and Section 49(a) as well as Section 49(c) of the Registration Act. It could have been argued that the said documents could have been made use of for collateral purposes, in case such collateral transaction is not one required to be effected by a registered instrument. Here, even in order to obtain possession through a sale deed, the value of the immovable property covered by such a document if exceeds ?100, it is compulsorily registrable as per Section 17(1 )(b) of the Registration Act and therefore, it is hit by Section 49 of the Registration Act. Here, even in order to obtain possession through a sale deed, the value of the immovable property covered by such a document if exceeds ?100, it is compulsorily registrable as per Section 17(1 )(b) of the Registration Act and therefore, it is hit by Section 49 of the Registration Act. In the light of Section 49 of the Registration Act, the trial court ought not to have received Exts.A2, A5 and A4 in evidence. Similarly, the lower appellate court has committed grave error in relying on Exts.A2, A5 and A4. 26. Through Ext.A6, PW7 and his wife purchased 3 Acres and 14 cents of property on 13.04.1976. Just on the sixth day of the execution of Ext.A6, the wife of PW7 executed Ext.B2 on 19.04.1976, whereby she sold 18 cents of property out of the property covered by Ext.A6. In the said document, the northern boundary of the said property is shown as 'property of Vasudevan.' The said property of Vasudevan is the 35 cents of property, which was left out when Vasudevan had executed Ext.A6. Matters being so, PW7 or the plaintiff cannot claim that the 35 cents of property was not in the possession of Vasudevan even in the year 1976. Had the property been handed over to PW7 or to some others in the year 1972, the northern boundary of the property covered by Ext.B2 executed on 19.04.1976 should not have been shown 'the property belongs to Vasudevan' in Ext.B2. That itself denotes the falsity of the claim of the plaintiff at the instance of PW7. 27. The learned Senior Counsel for the first respondent has pointed out that the first respondent has been paying tax for the 35 cents of property for the period from 1981 onwards and therefore, from the same itself, it is evident that the 1st respondent is in possession of the said 35 cents. It is trite law that revenue records cannot confer title. At the same time, it can be made use of for the purpose of ascertaining that as per the revenue records, such a person is in possession of the property. 28. It is trite law that revenue records cannot confer title. At the same time, it can be made use of for the purpose of ascertaining that as per the revenue records, such a person is in possession of the property. 28. The learned counsel for the appellant has invited the attention of this Court to the decision in State of Andhra Pradesh and Others v. Star Bone Mill and Fertiliser Company, (2013) 9 SCC 319 , wherein it was held in paragraph 21 that: "The maxim "possession follows title" is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he was continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment, etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession". (Emphasis supplied). 29. In order to grant a decree of perpetual injunction what has to be considered is as to who is in actual physical possession of the property. When the property is a baron land, vacant land or lying as a road etc., title deed should be there to ascertain the possession over such property. The principle is that in such cases, possession follows title. 30. Here all sorts of falsehoods have been committed by PW7 for and on behalf of the plaintiff. When the property is a baron land, vacant land or lying as a road etc., title deed should be there to ascertain the possession over such property. The principle is that in such cases, possession follows title. 30. Here all sorts of falsehoods have been committed by PW7 for and on behalf of the plaintiff. That is evident from the discussions made above relating to Exts.A2, A5, A4, A6 as well as B2. In such case, when a false claim of title has been made, the production of Ext.A12 series tax receipts cannot improve the case of the plaintiff. Ext.A12 series tax receipts have also to be considered with a pinch of salt only. All the mischief was committed by PW7, a Document Writer. He would have been instrumental in obtaining mutation based on the unregistered sale deed also. Evidently, such tax receipts were procured on the strength of Exts.A2, A5 and A4. When those documents have not even the value of blank papers, no sanctity can be attached to Ext.A12 series procured by PW7 and the plaintiff on the strength of Exts.A2, A5 and A4. Therefore, in this particular case, in order to prove possession, the plaintiff cannot rely on Ext.A12 series. 31. All the findings entered by the lower appellate court are incorrect. At the same time, it seems that the trial court had considered the matters in the correct perspective. It is by heavily relying on Exts.A2, A5 and A4, the lower appellate court has chosen to find that the plaintiff can ignore Ext.B1. Ext.B1 is not liable to be ignored. The plaintiff has no locus standi to challenge Ext.B1 as a void document. There is absolutely no evidence to prove that Ext.A1 is a void document. Therefore, the finding entered by the lower appellate court that Ext.B1 is a void document and therefore, the same can be ignored, is apparently erroneous. 32. In these circumstances, the plaintiff is not entitled to the decree of perpetual injunction also. The judgment and decree passed by the lower appellate court are not legally sustainable and the same are liable to be set aside. In the result, this appeal is allowed and the judgment and decree passed by the lower appellate court are set aside. The suit stands dismissed. In the nature of this appeal, parties shall bear their respective costs. All interlocutory applications in this appeal are closed.