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2018 DIGILAW 2625 (JHR)

Fekan Pandit v. Ganesh Prasad Gupta

2018-12-03

RAJESH KUMAR, RAJESH KUMAR

body2018
JUDGMENT : 1. Heard the counsel for the appellants. 2. The appellants are the original plaintiffs. 3. The suit being Title Suit No.52 of 1989 had been instituted by the plaintiffs for the following relief’s: (i) After adjudication, it be declared that the sale deeds executed by defendant No.1 vide deed Nos. 2029, 2030 and 2031 dated 11.05.1989 in favour of the defendants No. 5 to 7 are without consideration inoperative and not binding upon the plaintiffs and shame transaction. (ii) An order of temporary injunction restraining the defendant No.5 to 7 from enterfering with the peaceful possession of the plaintiffs over the suit-land or making any construction thereon may be passed. (iii) In event of decree an order of permanent injunction may be passed, in favour of the plaintiffs. (iv) A decree for the cost of suit be awarded in favour of the plaintiffs and (v) Any other relief or relief’s to which the plaintiffs be found in Law be given to the plaintiffs. 4. The case, as pleaded by the plaintiffs is that the suit land and adjacent land belongs to Lalita Devi (original defendant No.1). Some portion of the land has been purchased by the plaintiffs and others vide registered sale deed dated 25.03.1985. Some adjustments had been made among the parties by exchange. On the basis of exchange of land, reliefs had been claimed. On the basis of exchange of the land, they are in possession of the suit land, which is bone of dispute in the present suit. It has further been pleaded that three sale deeds all dated 11.05.1989 executed by Lalita Devi in favour of defendant Nos.5 to 7 are without consideration and that should be declared as null and void. In the said suit, the defendants have appeared and contested the suit. 5. The trial court had framed following issues: (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got a valid cause of action for the suit? (iii) Whether the plaintiffs got right, title and possession over the suit land? (iv) Whether the sale deeds executed by defendant No.1 bearing deed No.2029, 2030 and 2031 dated 11.5.1989 in favour of defendant No. 5 to 7 are without consideration, inoperative and not binding upon the plaintiffs? (v) Any other relief or relief’s to which the plaintiffs are entitle? 6. (iv) Whether the sale deeds executed by defendant No.1 bearing deed No.2029, 2030 and 2031 dated 11.5.1989 in favour of defendant No. 5 to 7 are without consideration, inoperative and not binding upon the plaintiffs? (v) Any other relief or relief’s to which the plaintiffs are entitle? 6. The trial court, has accepted unregistered deed of exchange and on that basis, title in favour of the plaintiffs had been declared and accordingly, sale deed had been declared null and void. 7. Being aggrieved, the defendants have preferred the appeal being Title Appeal No.34 of 1991. The appellate court has adopted the issues framed by the trial court and each of the issue has been decided after taking into consideration the pleadings of the parties and evidence available on the record. 8. So far issue No. (iv), regarding the validity of sale deed is concerned, the finding has been reversed on the ground that the plaintiffs had failed to prove that the said transaction was without consideration. It is admitted position of the parties that the vendor has valid title. Whether vendor has received consideration amount or not, that could have been proved by the vendor itself none else. So far as schedule-B land, which is the suit land, is concerned, no document has been produced to prove title of the same and only on the basis of the mutual agreement, title has been claimed. 9. The exchange has been defined under Transfer of Property of Act, 1882. Section 118 of the Transfer of Property Act, 1882 is quoted herein below: “118. “Exchange” defined. - when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”. A transfer of property in completion of an exchange can be made only in a manner provided further transfer of such property by sale”. 10. Exchange of immovable property has to be through registered deed of exchange. 11. Admittedly, in the present case, the deed of exchange was unregistered agreement between the plaintiffs. 12. Section 49 of Indian Registration Act, 1908 is quoted here-in-below: 49. 10. Exchange of immovable property has to be through registered deed of exchange. 11. Admittedly, in the present case, the deed of exchange was unregistered agreement between the plaintiffs. 12. Section 49 of Indian Registration Act, 1908 is quoted here-in-below: 49. 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 (4 of 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 (4 of 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 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.] 13. Unregistered deed of exchange is not admissible evidence. Finding recorded on the strength of unregistered deed of exchange is perverse and rightly reversed by 1st appellate court. 14. Thus, 1st appellate court has rightly reversed the finding so far issue No.(iv) is concerned. 15. So far as issue No.(iii) is concerned, this is not the prayer even made by the plaintiffs for declaration right title an interest in favour of the plaintiffs and further, once issue No. (iv) has been settled in favour of the defendants, then issue no. (iii) has to be reversed and rightly been reversed by the 1st appellate court. 16. It is settled principle of law that 1st appellate court is competent to take different views from the trial court. 17. In the present case as per the prayer, the onus was upon the plaintiffs to prove that the sale deed was without consideration. This onus has not been proved by adducing evidence, rather vendor (defendant No.1) has appeared and supported impugned sale deed. Even the impugned title deeds had neither been filed nor had been proved by the plaintiffs. The plaintiffs’ suit is bound to fail. 18. In view of the above discussion, I find no error committed by the 1st appellate court much less involvement of any substantial question of law. Accordingly, the same is hereby dismissed. Even the impugned title deeds had neither been filed nor had been proved by the plaintiffs. The plaintiffs’ suit is bound to fail. 18. In view of the above discussion, I find no error committed by the 1st appellate court much less involvement of any substantial question of law. Accordingly, the same is hereby dismissed. 19. I.A No. 9159 of 2018 stands disposed of.