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2019 DIGILAW 10 (AP)

Aradada Radhabai v. Kokkirigadda Lakshmi

2019-02-01

D.V.S.S.SOMAYAJULU

body2019
ORDER : D.V.S.S. Somayajulu, J. 1. This second appeal is filed questioning the judgment and decree passed in A.S. No. 9 of 2005 by the VI Additional District Judge, Narsapur confirming the decree and judgment passed in O.S. No. 138 of 1999 by the Additional Junior Civil Judge, Narsapur. 2. The appeal was taken up for hearing on the question of admission. 3. This Court has heard Sri S.V. Prasad, learned Senior Counsel representing Sri D.S.V.V.S.V. Prasad for the appellant and Sri P. Durga Prasad and Sri S.V.R. Subrahmanyam, Advocates for the contesting respondents. 4. Learned senior counsel appearing on behalf of the appellants traced the history of the case and brought out the important facts. According to the learned senior counsel, the suit is filed for recovery of property that has been encroached by the defendants. The prayer in the suit is for recovery of possession of two bits of vacant site measuring 147 square yards and 25 square yards respectively and for a permanent injunction from interfering with the plaintiffs' possession of the property after they are put into possession. Learned counsel points out that the plaintiffs have title which can be traced to the documents which are marked as Exs. A-1, A-2, A-3 and Ex. A-22. Counsel argued that after verifying the land with the documents ending with Ex. A-22, shortage of site was noticed on the ground of necessity of filing of the suit. Counsel also points out that there is no documentary evidence to the contra filed by the defendants. Therefore, he questions the findings of the Courts below in ignoring the title deeds of the plaintiff/appellants. Learned senior counsel also fairly conceded that the crux of the issue is about Ex. A-2 sale deed, which is an unregistered sale deed dated 1-5-1944. Both the Courts below, in the opinion of the learned senior counsel, committed an error in ignoring the document. It is his contention that even an un-registered document can be looked into for a collateral purpose. The learned senior counsel also argued on the basis of Sk. Bhikan v. Mehamoodabee 2017 (5) ALT 1 (SC) : (2017) 5 SCC 127 , M.B. Ramesh (D) by L.Rs. v. KM Veeraje Urs (D) by L.Rs. 2013 (5) ALT 40 (SC) : (2013) 7 SCC 490 and Sir Chunilal V. Mehta & Sons Ltd. v. The Century Spinning and Manufacturing Co. Bhikan v. Mehamoodabee 2017 (5) ALT 1 (SC) : (2017) 5 SCC 127 , M.B. Ramesh (D) by L.Rs. v. KM Veeraje Urs (D) by L.Rs. 2013 (5) ALT 40 (SC) : (2013) 7 SCC 490 and Sir Chunilal V. Mehta & Sons Ltd. v. The Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 , that the question of interpretation or the construction of a document of title is also a question of law. Therefore, learned senior counsel contends that both the lower Courts committed an error by not considering the said document. It is his contention that the flow of title will be established if Exs. A-1, A-2 and A-3 are read in conjunction with Ex. A-22 and by failing to consider the contents of Ex. B-2, the lower Courts committed an error. He, therefore, submits that the substantial questions of law which are raised along with the grounds of the appeal are a matter that requires a decision. He therefore, prays that the appeal should be admitted. 5. In reply thereto, Sri P. Durga Prasad, learned counsel for the respondents argued that the decisions of both the Courts below are valid and correct. He submits that as the title is not proved to these two bits of land which are the subject matter of the Court, the Courts below rightly negative the claim. He also submits that as the suit is filed for recovery of possession, the contents of Ex. A-22 cannot be considered at all on the question of possession also since it is not a collateral purpose as submitted. The main relief in the suit is for recovery of possession and therefore, learned counsel submits that considering the contents of Ex. A-2 will not be a "collateral purpose". Learned counsel also points out that the case does not involve the question of interpretation or the construction of a document, but turns around receiving the document in evidence as it is un-registered. He, therefore, submits that the questions of law which are proposed are not at all questions of law and that there is absolutely no merit in the second appeal and that the appeal should not be admitted. 6. Sri S.V.R. Subrahmanyam, learned counsel for the other respondents also argued on the same lines and ultimately prayed that the appeal cannot be admitted. 7. 6. Sri S.V.R. Subrahmanyam, learned counsel for the other respondents also argued on the same lines and ultimately prayed that the appeal cannot be admitted. 7. After hearing both the learned counsels, this Court notices from a reading of the plaint that the plaintiffs assert title to the property and state that their property has been occupied by the defendants. Para 4 of the plaint makes it clear that item 2 of the plaint schedule property was sold under an unregistered sale deed and possession of the property was delivered on the date of the sale deed. In the subsequent paras, they make out a case of encroachment and occupation of the property by the defendants and pray for recovery of the same. The prayer in the suit is only for delivery of vacant possession of the property and for an injunction after the delivery. 8. This Court also notices that the plaintiffs were conscious of the fact that this document was unregistered. Ex. A-2 is the unregistered sale deed which was marked during the course of chief-examination of P.W. 1. In the chief-examination itself, the document Ex. A-2 was marked for a limited purpose and for a collateral purpose. The same is clear from the copy of the deposition filed with the material papers. 9. The trial court in its judgment has also considered these aspects. The judgment of the trial court is a long and detailed judgment and the issue about this document is discussed in paras 15, 16 and 17 of the judgment when the evidence of P.W.1 was also discussed. After considering the oral and documentary evidence, the Court came to a conclusion that the witness was not aware of the details of Exs. A-1 to A-3 and that the evidence of P.W. 1 was vague and unsustainable to establish her case. The Court held that her evidence does not establish title to the property. The right which was asserted by the plaintiffs to the property was in the opinion of the trial court not proved through their documents. 10. In the first appeal also, the appellate court discussed these issues. The first appellate court held that the plaintiffs did not establish their own title to the property. Paras 19 to 21 of the first appellate court judgment are relevant. The Court also came to a conclusion that the document Ex. 10. In the first appeal also, the appellate court discussed these issues. The first appellate court held that the plaintiffs did not establish their own title to the property. Paras 19 to 21 of the first appellate court judgment are relevant. The Court also came to a conclusion that the document Ex. A-2 cannot be looked into for any purpose as it is an unregistered sale deed. The Court held that a document which requires to be registered under the law cannot be received in evidence for any purpose. 11. This Court also notices that the suit itself is filed for recovery of possession. Recovery of possession is based upon the title which is supposedly acquired by the plaintiffs under Exs. A-1 to A-3 read with Ex. A-22-Will. In a suit for recovery of possession, the question is whether proving possession is a collateral purpose or main purpose? 12. The learned Senior Counsel argued that the unregistered sale deed can be looked into for a collateral purpose and that possession can be proved even by an unregistered document as it is a collateral purpose. The respondents argue that proving possession is the main purpose and not a collateral purpose. Neither counsel relied on any case law for this purpose. 13. This Court notices that in the cases relied upon by the appellant there was no issue about main/collateral purposed nor was an issue raised about the want of registration and the prohibition against the receipt of the document in evidence due to a restriction imposed by law. 14. Section 49 and the proviso to Registration Act, 1908 deals with an eventuality like this. The proviso to Section 49 of the Registration Act, 1908 states that an unregistered document affecting immovable property and required to be registered may be received in evidence in the following cases (a) as evidence of a contract for specific purpose (b) as evidence of any collateral transaction not required to be effected by a registered instrument. These are the two exceptions that are carved out under Section 49 of the Registration Act. 15. The question then arises is what exactly is a collateral purpose. The Hon'ble Supreme Court of India in a case reported in K.B. Saha and Son's v. Development Consultant Ltd. (2008) 8 SCC 564 : 2009 (5) ALT 32.1 (DN SC), held as follows: "21. 15. The question then arises is what exactly is a collateral purpose. The Hon'ble Supreme Court of India in a case reported in K.B. Saha and Son's v. Development Consultant Ltd. (2008) 8 SCC 564 : 2009 (5) ALT 32.1 (DN SC), held as follows: "21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that: 1. A document required to be registered, if unregistered 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 immovable 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." 16. If the present case is examined against the backdrop of this law that (a) a collateral transaction must be one which is independent or divisible from the original transaction (b) if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence the appellants what to use Ex. A-2 to prove their title and also the fact that possession has been delivered to them under Ex. A-2. The passage of title and the delivery of possession under Ex. A-2 are not independent or divisible transactions. Similarly, if Ex. A-2 is inadmissible in evidence for want of registration, its terms cannot be used to prove the delivery of possession also. 17. Therefore, it cannot be said that the two courts below committed an error in passing this judgment and by not looking into the terms of Ex. A-2. The interpretation that is placed by the appellants is not tenable legally. The possession that is delivered under Ex. 17. Therefore, it cannot be said that the two courts below committed an error in passing this judgment and by not looking into the terms of Ex. A-2. The interpretation that is placed by the appellants is not tenable legally. The possession that is delivered under Ex. A-2 is a possession that is delivered to the purchaser of the property who has paid the consideration. As the said document is unregistered, it cannot be receive in evidence in the facts and circumstances of the case to prove the term in the said deed about delivery of possession, as the suit itself is filed for recovery of possession. Possession and its delivery are a primary purpose and not a collateral purpose. The law laid down by the Honorable Supreme Court is clear and settles the legal position. 18. In view of all of the above, this Court is of the opinion that there is no question of interpretation or construction of a document that is involved which would require further adjudication in this matter. Both the first appellate court and the trial court have decided the matter correctly. This Court is, therefore, of the opinion that there is no substantial question of law that is involved in this matter that would warrant a decision by this Court and also necessitate the admission of this appeal. 19. For all these reasons, this Court is of the opinion in the facts and circumstances of this case that there is no question of law that is involved in this case. 20. The Second Appeal is, therefore, rejected at the threshold. No order as to costs. 21. Miscellaneous petitions, it any, pending in this appeal shall stand closed.