Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 744 (GAU)

IZAZUR RAHMAN v. IFTIKAR RAHMAN @ SAJID

2018-05-07

MIR ALFAZ ALI

body2018
JUDGMENT/ORDER : 1. This second appeal filed by the plaintiff was admitted to be heard on the following substantial questions of law: " (1) Whether the delivery of possession of the property is a condition for the sale within the meaning of Section 54 of the Transfer of Property Act, when such sale has been affected by a registered deed of sale (Exhibit-2) ? (2) Whether the sale deed, Exhibit-2 being a registered document, the presumption can be drawn about the due execution of such sale deed as well as the contents of the same? 2. The plaintiff filed the Title Suit No.109/2005 for ejectment of the defendants. The case of the plaintiff was that he purchased 1 katha 3 lechas of land covered by PP No.231 (New) 108 (Old) and Dag no.522 (Part) situated at Gabharupathar, Dibrugarh with an old pucca house consisting of 7 rooms by registered sale deed No.2522/1999 from the defendant No.1 and took possession thereof. Later on, the defendant No.1 was inducted as tenant in the suit premises at a monthly rent of Rs.1500/- with effect from 10.07.2002 and subsequently the tenancy agreement was renewed from time to time. When the plaintiff applied for mutation of the holding in respect of the suit premises, the defendant No.1 raised an objection before the Vice Chairman Municipal Board on 01.08.2005, stating, that the plaintiff did not pay full consideration in respect of the sale deed which was executed by her in the year 1999. The plaintiff further stated that taking advantage of being in occupation of the suit premises as tenant, the defendant raised false plea and also failed to pay the rent and thereby became defaulter. The defendant also sub-let a portion of the suit premises to the defendant No.2. Hence, the plaintiff filed the suit for ejectment of the defendant on the ground of defaulter and sub-letting. 3. Besides denial of the averment of the plaint, the pleaded case of the defendant No.1 was that she did not sell the suit premises to the plaintiff. The specific case of the defendant No.1 was that she was an old ailing lady of 74 years of age having no issue. The plaintiff used to visit her and help her in drawing pension etc. On the pretext of requirement for drawing her pension, the plaintiff took signatures of the defendant No.1 on some blank papers. The specific case of the defendant No.1 was that she was an old ailing lady of 74 years of age having no issue. The plaintiff used to visit her and help her in drawing pension etc. On the pretext of requirement for drawing her pension, the plaintiff took signatures of the defendant No.1 on some blank papers. The defendant stated that the plaintiff by obtaining signatures of the defendant No.1 on blank papers and taking advantage of her old age cheated the defendant No.1. The defendants also denied the relationship of landlord and tenant as well as the allegation of non-payment of rent. 4. On the basis of the pleadings of the parties, learned trial Court framed the following issues : 1. Whether there is cause of action in the suit? 2. Whether the suit is maintainable in law and facts? 3. Whether the defendant No.1 sold the suit premises to the plaintiff? 4. Whether the defendant No.1 is a tenant of the plaintiff in respect of the suit premises? 5. Whether the defendant No.1 has been defaulter to pay the rent of the suit premises since February, 2005? 6. Whether the plaintiff is entitled to decree as prayed for? 7. Whether the parties are entitled to any other relief/reliefs? 5. After hearing both the sides, learned Munsiff dismissed the suit of the plaintiff. The appeal filed by the plaintiff before the learned Civil Judge against the judgment and decree passed by the learned Munsiff, also stood dismissed. 6. Aggrieved, the plaintiff filed the instant second appeal. 7. Mr. C. Baruah, learned counsel for the appellant and Mr. Y.S. Mannan, learned counsel for the respondent were heard. 8. Mr. Baruah, learned counsel for the appellant placing reliance on a decision of this Court in Manmatha Ranjan Trivedi Vs. Gopal Krishna T.E. Co. (P) Ltd & Ors reported in 2006 (Supp) GLT 718 contended that the findings of the learned Courts below, that title to the suit property did not pass by the registered sale deed for want of delivery of possession was illegal and erroneous. The contention of the learned counsel for the respondent, Mr. Mannan was that mere registration of the sale deed is not sufficient to complete the transfer of immovable property, unless it is proved that the vendor really had the intention to sell the property. Mr. The contention of the learned counsel for the respondent, Mr. Mannan was that mere registration of the sale deed is not sufficient to complete the transfer of immovable property, unless it is proved that the vendor really had the intention to sell the property. Mr. Mannan further contended placing reliance on Suresh Kumar through GPA Vs. Anil Kakaria and Others (2018) 1 SCC 86 , that the concurrent findings of the Courts below is binding on the High Court while hearing a second appeal. 9. The findings of the learned trial Court as well as the Appellate Court was unanimous on the point that delivery of possession was essential for complete transfer of an immovable property and without delivery of possession, the transfer does not take place. 10. Learned trial court while dismissing the suit of the plaintiff observed as under: "13. I have gone through the provision of Section 54 of the Transfer of Property Act. It speaks amongst others that "Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 14. Further, from the provision of law quoted above i.e., section 54 of the Transfer of Property Act, it is clear that a mere preparation of a sale deed does not ipso facto amounts to sale and transfer of property. What is required is that the seller has delivered the possession of the property to the purchaser and the purchaser took over possession of the same." 11. The Appellate Court concurring with the above findings of the learned trial Court observed as under: "A perusal of provision of section 54 of the transfer of property Act it is clear that the delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs in possession of the property. In the instant case, it is not proved by the plaintiff/appellant that the possession of the suit property was delivered by the respondent No.1." 12. Section 54 of the Transfer of Property Act reads 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. In the instant case, it is not proved by the plaintiff/appellant that the possession of the suit property was delivered by the respondent No.1." 12. Section 54 of the Transfer of Property Act reads 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. Sale how made.—3Such transfer, in the case of tangible immoveable 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. 1In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. 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. 13. A plain reading of the above provisions of the Section 54 of the Transfer of Property Act would show, that transfer of intangible immovable property, value of which is rupees one hundred or upwards can only be effected by a registered instrument. However, in case of tangible immovable property value of which is less than one hundred rupees, transfer can be effected either by registered instrument or by delivery of possession of the property and delivery of immovable property takes place when the seller places the buyer in possession of the property. The provision of section 54 of the Transfer of Property Act contains 4 (four) parts. The first part defines "sale". The second part describes how the sale of intangible immovable property value of which is one hundred or above is affected. The third part describes how the sale is affected or transfer is made, in case of tangible immovable property value of which is less than one hundred and how the delivery of tangible immovable property takes place. The second part describes how the sale of intangible immovable property value of which is one hundred or above is affected. The third part describes how the sale is affected or transfer is made, in case of tangible immovable property value of which is less than one hundred and how the delivery of tangible immovable property takes place. The last part of section 54 under the caption contract for sale, provides that transaction of sale being a contract between the parties, the sale of such property shall take place on the terms of settlement between the parties. 14. In the present case, admittedly value of the property was more than rupees one hundred, and as such, the transfer of such immovable property could be made only by a registered instrument. The provision of Section 54 of Transfer of Property Act, has made it amply clear, that sale of immovable property, value of which is more than one hundred can be made only by a registered instrument. The qualifying word "only" preceding the word "by a registered instrument", makes it abundantly clear that transfer of immovable property, value of which is rupees one hundred or above cannot be made by any other mode, except by a registered instrument. The provision of section 54 does not make the delivery of possession a pre-condition for an effective transfer of immovable property, value of which is more than one hundred. 15. In view of the clear provisions made in Section 54 of the Transfer of Property Act, both the Courts below fell in grave error by taking a contrary view that without delivery of possession, the transfer was is not complete, being totally unmindful of the fact, that the value of the property in the instant case was more than rupees one hundred. The portion of Section 54 of the Transfer of Property Act quoted and heavily relied by the Courts below, i.e., "delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property" describes the mode as to how delivery of tangible immovable property takes place and not how transfer of immovable property takes place. Delivery of possession is only one of the mode of transfer of tangible immovable property, value of which is less than one hundred rupees. Delivery of possession is only one of the mode of transfer of tangible immovable property, value of which is less than one hundred rupees. When the provision of law (section 54 of the Transfer of Property Act) has not made the delivery of possession, a pre-condition for a valid transfer in respect of tangible immovable property, value of which is rupees one hundred or above and such transfer can be made only by registered instrument, the question of delivery of possession is not relevant for a valid transfer in respect of immovable property, value of which is rupees one hundred or above. Both the Courts below appears to have misread and misunderstood the provision of section 54 of the Transfer of Property act and thereby fell in grave error by holding that without delivery of possession, transfer does not take place in respect of immovable property, value of which was admittedly more than one hundred. 16. This Court in Manmatha Ranjan Trivedi (supra) as relied by learned counsel for the appellant, while holding that delivery of possession is not a condition precedent in respect of transfer of immovable property, value of which is more than one hundred rupees which can be effected by registered sale deed, held as under : (12) It is thus clear that in order to acquire a valid right, title and interest over any immovable property valued at Rs.100/- or above by way of purchase it should be effected by a registered instrument by payment or promising to pay the consideration money. The transfer of property act does not lay down any condition that in order to acquire title over a property purchased by executing registered sale deed, the delivery of possession is a condition precedent. By virtue of registered sale deed referred to above, the right, title and interest over the land mentioned in the schedule of the sale deed and interest over the concerned land has been validly transferred in favour of the plaintiff/appellant. 17. By virtue of registered sale deed referred to above, the right, title and interest over the land mentioned in the schedule of the sale deed and interest over the concerned land has been validly transferred in favour of the plaintiff/appellant. 17. Thus, from the definition of the sale and how sale is made, contained in Section 54 of the Transfer of Property Act, it is amply clear, that transfer of immovable property, value of which is one hundred rupees or above, can be effected only by registered instrument and delivery of possession is not a pre-condition for an effective transfer of a tangible immovable property, value of which is more than one hundred. The first substantial question of law is accordingly answered in negative and in favour of the plaintiff/appellant or against the respondent. 18. The registered sale deed in this particular case has been proved as Ex-2 by the plaintiff as per requirement of Section 67 of the Evidence Act. The plaintiff also examined PW-5 who prepared the sale deed and was also present as attesting witness at the time of execution and registration of the sale deed. PW-5 stated that after preparation of the sale deed the same was read over and explained to the defendant No.1 in Assamese and thereafter, she put her signature. He further deposed that he identified the defendant No.1 before the sub-registrar. The plaintiff also proved Exhibit-1, the application for sale permission by the defendant No.1 and defendant No.1 admitted her signature in Exhibit-1. The defendant No.1 also admitted her signatures on the sale deed (Exhibit-2). The Exhibit-30 being application proved by the plaintiff shows that defendant conveyed her consent for transferring the holding of the suit premises to the plaintiff, wherein the defendant admitted to have transferred the suit premises to the plaintiff. The execution of the sale deed by the defendant No.1 is also admitted by the defendant No.1 in paragraph 9 of the written statement. The plaintiff, in paragraph-9 of the plaint made a specific averment that the defendant made a complaint before the Vice Chairman, Municipal Board, alleging that the plaintiff did not pay the full consideration money in respect of the sale deed, which was executed by her in the year 1999 in favour of the plaintiff. The plaintiff, in paragraph-9 of the plaint made a specific averment that the defendant made a complaint before the Vice Chairman, Municipal Board, alleging that the plaintiff did not pay the full consideration money in respect of the sale deed, which was executed by her in the year 1999 in favour of the plaintiff. Those averment in the plaint was admitted by the defendant in paragraph-9 of the written statement, inasmuch as, the defendant averred that "that the statements made in paragraph-9 of the plaint is admitted being matters of record and the plaintiff is put to strict proof thereof." 19. The learned counsel for the respondent submitted that the defendant never executed the sale deed, exhibit-2 in favour of the plaintiff nor she had any intention to sell the suit property and as such, the title to the property was never transferred to the plaintiff by Exhibit-2, the sale deed. Mere proof of Exhibit-2 (registered sale deed) shall not raise a presumption as to the genuineness of the transaction or due execution of the deed, intention of the seller to sell the property is also required to be proved for an effective transfer, submits Mr. Mannan. To buttress the submission, learned counsel placed reliance on the following decisions: 1. Kaliaperumal Vs. Rajgopal And Another reported in (2009) 4 SCC 193 . 2. Janak Dulari Devi And Another Vs. Kapildeo Rai And Another reported in (2011) 6 SCC 555 . 20. The plea of the defendant in the written statement was that she never sold the suit property. The pleaded case of the defendant was that the plaintiff on the pretext of collecting pension of the defendant, time to time took her signature on blank paper and by using such blank paper he has cheated the defendant No.1. Though specifically the defendant did not mention in the written statement, that the sale deed was executed fraudulently, from the averment in the written statement it is clear that the defendant took a plea of fraud and misrepresentation and, as such, burden to prove such plea lay with the defendant. However, the defendant did not adduce any evidence to that effect. On the other hand, the pleadings and the evidence adduced by the plaintiff as discussed herein below makes it appear that the plaintiff successfully discharged his burden to prove the execution and registration of the sale deed Exhibit-2. 21. However, the defendant did not adduce any evidence to that effect. On the other hand, the pleadings and the evidence adduced by the plaintiff as discussed herein below makes it appear that the plaintiff successfully discharged his burden to prove the execution and registration of the sale deed Exhibit-2. 21. Section 8 of the Transfer of Property Act provides that "unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof." A combined reading of section 54 and Section 8 of the Transfer of Property Act makes it abundantly clear, that the ownership and title to the property passes to the purchaser immediately on the execution of the registered sale deed, unless the sale deed contains otherwise or the sale is made subject to fulfillment of some other conditions as per contract between the parties. The expression "unless a different intention is expressed or necessarily implied" and "transfer of property passes forthwith to the transferee all the interest" in Section 8 of the Transfer of Property Act, clearly indicates, that title to the property stands transferred immediately on registration of the sale deed and as such, registration of the sale deed is therefore, a prima-facie proof of intention to transfer. If the sale deed contains any other intention or pre-condition, in that case, the operative transfer of the property would take place only after fulfillment of such pre-condition in view of Section 8 of the Transfer of Property Act. In the instant case recital of the sale deed was clear and unambiguous. The sale deed (Exhibit-2) did not subject the transfer of the property to the fulfillment of any pre-condition. When the sale deed was duly executed and registered and the recital of the sale deed did not contain any other intention subjecting the operative transfer to any pre-condition, necessary presumption should be that, the vendor had the intention to transfer the land and transfer took place immediately on registration of sale deed. When the sale deed was duly executed and registered and the recital of the sale deed did not contain any other intention subjecting the operative transfer to any pre-condition, necessary presumption should be that, the vendor had the intention to transfer the land and transfer took place immediately on registration of sale deed. In the instant case, recital of the sale deed was amply clear and the transfer effected by Exhibit-2 was not subjected to fulfillment of any condition, nonetheless, if a party wants to raise a plea, that the vendor had any intention other than stated in the sale deed or transfer was made subject to any implied condition, burden to prove such condition or intention of the seller would invariably lie with the party who raise such plea and such plea of intention other than the recital in the sale deed has to be proved subject to the provisions of Section 92 of the Evidence Act. 22. The Apex Court in Kaliaperumal (supra), dealing with the question of intention in a transaction of sale of immovable property held as under : "18. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention to transfer the property, it is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. 19. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act. 23. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of the Evidence Act. 23. A similar view was taken by the Apex Court in the subsequent decisions in Janak Dulari Devi and Another (supra), the factual matrix of both the cases dealt by the Apex Court in Kaliaperumal as well as Janak Dulari case was that the intention of the party was that sale would take effect only after payment of full consideration. In both the cases, consideration was either not paid or partly paid. Having considered the factual matrix of the case, both in Janak Dulari and Another (supra) and Kaliaperum (supra), the Apex Court held that sale was not complete for non-payment of consideration money and intention of the party was held to be that operative transfer would take place only after payment of the full consideration money. 24. Applying the principle enunciated by the Apex Court in Kaliaperumal case (supra) to the facts of the present case, I find that recital of the sale deed (Exhibit-2) was amply clear, inasmuch as in the sale deed (Exhibit-2) transfer of the property was not subjected to fulfillment of any other pre-condition. When recital of the sale deed was sufficiently clear and unambiguous, that transfer would take place on execution and registration of the sale deed, the only way is to look into the surrounding circumstances and conduct of the parties to ascertain whether there was any other implied intention. 25. Evidently it was not the case of the defendant that sale was subject to fulfillment of any pre-condition, rather, specific plea of the defendant was that she never executed the sale deed or the sale deed was fraudulent. The pleadings and evidence of the parties as discussed herein above crystallizes that the defendant failed to discharge her burden to prove the plea of fraud. Rather, the evidence adduced by the plaintiff clearly established that the defendant sold the suit property by executing the registered sale deed (Exhibit-2). The pleadings and evidence of the parties as discussed herein above crystallizes that the defendant failed to discharge her burden to prove the plea of fraud. Rather, the evidence adduced by the plaintiff clearly established that the defendant sold the suit property by executing the registered sale deed (Exhibit-2). Situated thus, I find no merit in the submission of the learned counsel for the plaintiff/appellant, that sale was not complete for want of required intention, inasmuch, the defendant failed to establish by adducing evidence, that there was some other intention not expressly laid down in Exhibit-2. For the reasons stated herein above, the second substantial question is answered in favour of the plaintiff. 26. From the pleadings of the plaintiff, it appears that the plaintiff filed the suit for ejectment of the defendant under the Urban Areas Rent Control Act on the ground of defaulter and sub-letting. However, the defendant denied tenancy as well as title of the plaintiff over the suit property. Both the courts below held that the relationship of landlord and tenant between the party was not proved. The issue of defaulter was also decided in favour of the defendant and against the plaintiff. In view of the concurrent findings that relationship of landlord and tenant was not established, the pertinent question arises in the facts and circumstances of the instant case is, whether in a suit filed under Urban Areas Rent Control Act, when the plaintiff failed to establish the relationship of land lord and tenant, is there any scope to enter into the question of title of the parties. The Apex Court in Rajendra Tiwary Vs. Basudeo Prasad And Another (2002) 1 SCC 90 observed that in a suit for ejectment under the rent control statute, if the relationship of landlord and tenant is found not established, any further enquiry into the title of the parties is beyond the scope of the court exercising jurisdiction under such statute. The Apex Court held in para 7 & 8 as under : "7. It is evident that while dealing with the suit of the plaintiff for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. It is evident that while dealing with the suit of the plaintiff for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of "landlord and tenant" should exist. The scope of enquiry before the Courts was limited to the question : as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant" in clauses (f) and (h), respectively, of section 2 of the Act. 8. Inasmuch as both the trial court as well as the first appellate court found that the relationship of "landlord and tenant" did not exist between the plaintiffs and the defendant, further enquiry into the title of the parties having regard to the nature of the suit and jurisdiction the court, was unwarranted." 27. In Tribhuvanshankar Vs. Amrutlal (2014) 2 SCC 788 , the Apex Court held as under: "At this juncture, we are obliged to state that it would depend upon the scheme of the Act whether an alternative relief is permissible under the Act. In Rajendra Tiwary case the learned judges, taking into consideration the width of the definition of the "landlord" and "tenant" under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, had expressed the opinion. The dictionary clause under the Act, with which we are concerned herein, uses similar expression. Thus, a limited enquiry pertaining to the status of the parties i.e. relationship of landlord and tenant could have been undertaken. Once a finding was recorded that there was no relationship of landlord and tenant under the scheme of the Act, there was no necessity to enter into an enquiry with regard to the title of the plaintiff based on the sale deed or the title of the defendant as put forth by way of assertion of long possession. Once a finding was recorded that there was no relationship of landlord and tenant under the scheme of the Act, there was no necessity to enter into an enquiry with regard to the title of the plaintiff based on the sale deed or the title of the defendant as put forth by way of assertion of long possession. Similarly the learned appellate judge while upholding the finding of the learned trial judge that there was no relationship of landlord and tenant between the parties, there was no warrant to re-appreciate the evidence to overturn any other conclusion. The High Court is justified to the extent that no equitable relief could be granted in a suit instituted under the Act. But it has committed an illegality by affirming the judgment and decree passed by the learned trial judge because by such affirmation the defendant becomes the owner of the premises by acquisition of title by prescription. When such an enquiry could not have been entered upon and no finding could have been recorded and, in fact, the High Court has correctly not dwelled upon it, the impugned judgment to that extent is vulnerable and accordingly we set-aside the said affirmation." 28. In the present case, the suit having been brought for ejectment of the defendant on the basis of relationship of landlord and tenant under the Assam Urban Areas Rent Control Act and such relationship having not been established, enquiry into the question of title or validity of sale deed of the plaintiff, having regard to the nature of the suit, was redundant and unwarranted. Be that as it may, the question of title being irrelevant in this particular suit under the Rent Control Act and the concurrent finding of facts being binding on this Court here in this appeal (see Suresh Kumar through GPA Vs. Anil Kakaria and Others) the second appeal is without merit and is liable to be dismissed. Otherwise also, the suit for ejectment being under the Rent Control Act, the second appeal itself is not maintainable. 29. For the reasons stated above, the second appeal stands dismissed. 30. Send down the LCR.