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2019 DIGILAW 1337 (HP)

Suresh Kumar v. Laxmi Devi

2019-09-09

TARLOK SINGH CHAUHAN

body2019
JUDGMENT : Tarlok Singh Chauhan, J. Defendants are the appellants, who aggrieved by the judgment and decree passed by the learned first appellate Court, whereby it reversed the judgment and decree passed by the learned trial Court and decreed the suit of the plaintiff, have filed the instant appeal. 2. The parties hereinafter shall be referred to as the 'plaintiff' and 'defendants'. 3. The plaintiff filed a suit for permanent injunction on the allegations that she is owner in possession of the land bearing Khata Khatauni No.10/10, Khasra Nos. 88/18, 85/31, 86/31, 84/32, total kitas-4, measuring 14 biswas, situated in Mauza Mashobra, Pargana Dharti, Tehsil Kasauli, District Solan, H.P., as per the agreement dated 22.08.1993, executed between the plaintiff and S/Sh. Babu Ram, Sant Ram, Roshan Lal, Vidya Devi, Naresh Kumar, Banwari Lal, Gianwanti, Prem Lata, Raksha Devi and Krishna Devi. It was averred that pursuant to the agreement, possession was delivered to the plaintiff at the spot and since then she is in peaceful possession thereof. The defendants despite being strangers and having no right, title or interest were interfering in her possession, hence, the suit. 4. The defendants contested the suit by filing written statement wherein preliminary objections regarding locus standi, maintainability, no cause of action, bad for non-joinder of necessary parties, not properly valued for the purpose of court fee and jurisdiction and the Court having no territorial jurisdiction etc., were raised. On merits, it was contended that the plaintiff is neither owner nor in possession of the suit land. It was averred that neither the plaintiff nor her predecessor-in-interest ever remained in possession of the suit land for the last 50 years and these were the defendants and earlier to that their parents, who were in actual and physical possession of the suit land. The agreement dated 22.08.1993 was denied and was alleged to be void and illegal on the basis of which no lawful right or title could be transferred to the plaintiff. It was further averred that the revenue record showing the names of Babu Ram etc. as owners in possession was not based upon the factual position existing on the spot. It was also averred that the agreement in question was of no value as the same was not registered under the provisions of law. 5. It was further averred that the revenue record showing the names of Babu Ram etc. as owners in possession was not based upon the factual position existing on the spot. It was also averred that the agreement in question was of no value as the same was not registered under the provisions of law. 5. On the pleadings of the parties, the learned trial Court framed the following issues/additional issues on 04.12.1996 and 22.11.2002: "1. Whether the plaintiff is owner in possession of the suit land and defendants are threatening to dispossess the plaintiff? OPP. 2. Whether the plaintiff has no locus standi? OPD. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff has no cause of action? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Whether the suit is bad for want of mis-joinder and non-joinder of necessary parties? OPD. 7. Whether this Court has no jurisdiction? OPD. 8. Whether the plaintiff is estopped from filing the suit, as alleged? OPD. 8A. Whether the defendant has become owner in possession of the suit land by way of adverse possession, as alleged? OPD. 9. Relief." 6. The learned trial Court after recording evidence and evaluating the same dismissed the suit vide judgment and decree dated 26.04.2004. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal before the learned first appellate Court, who vide judgment and decree dated 20.09.2004 allowed the appeal, constraining the defendants to file the instant appeal. 7. On 23.05.2008, the appeal came to be admitted on the following substantial questions of law: "1. Whether the impugned judgment and decree passed by the Ld. Lower Appellate Court is sustainable especially when the Ext. PW-1/C was not registered as required under law? 2. Whether any reliance can be placed upon Ex. PW-1/C an agreement of sale especially when it was not admissible in evidence without its registration? 3. Whether the plaintiff has proved the possession upon the suit land especially when the true owners had later on filed the suit for injunction against the appellants qua the same property?" I have heard the learned counsel for the parties and gone through the records of the case. 8. 3. Whether the plaintiff has proved the possession upon the suit land especially when the true owners had later on filed the suit for injunction against the appellants qua the same property?" I have heard the learned counsel for the parties and gone through the records of the case. 8. At the outset, it needs to be observed that defendants during the pendency of this appeal filed an application being CMP No.10471 of 2016 for placing on record certified copy of the plaint, written statement and the order of withdrawal of suit dated 26.11.2005 passed in Civil Suit No. 1/1 of 2002 titled Basheshwar Prasad and others versus Smt. Shyami and others. 9. Since, the application is intrinsically interlinked and interconnected with question No.3, therefore, the same will be taken up for consideration along with question No.3. Substantial Questions of Law No.1 and 2. 10. Since, both these questions are somehow interlinked and interconnected, therefore, they are taken up together for consideration. 11. It is more than settled that an agreement for sale by itself does not create any interest or charge in a property agreed to be sold and it is for this purpose that the agreement for sale is not treated as a conveyance for the purpose of Registration Act and, therefore, not compulsorily registered under Clause (b) of sub-section(1) of Section 17 of the Registration Act. 12. The learned counsel for the appellants vehemently argued that since the agreement of sale whereby possession has been delivered to the plaintiff was not admissible in evidence as the same was not registered and, therefore, could not have been relied upon by the learned first appellate Court for decreeing the suit of the plaintiff. In support of this submission, learned counsel for the appellants sought sustenance to be drawn from the provisions of Section 17(1A) of the Registration Act. It has to be noticed here that sub-section(1A) of Section 17 of the Indian Registration Act, 1908 was introduced by the Registration and Other Related Laws (Amendment) Act 2001, which came into force with effect from 24.09.2001. It has to be noticed here that sub-section(1A) of Section 17 of the Indian Registration Act, 1908 was introduced by the Registration and Other Related Laws (Amendment) Act 2001, which came into force with effect from 24.09.2001. As per sub-section(1A) of Section 17 of the Registration Act, the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53-A. 13. However, the agreement of sale relied upon by the defendants in this case is dated 22.08.1993, much prior to sub-section(1A) of Section 17 of the Registration Act coming into force. Therefore, the document in question was not a compulsorily registrable document, even for the purpose of Section 53-A of the Act, since sub-section (1A) of Section 17 of the Registration Act was not in force as on 22.08.1993. 14. Apart from above, the suit filed by the plaintiff was for injunction and the Courts below were only required to see as to whether the plaintiff was in actual and physical possession of the property so as to entitle her to claim injunction. The defendants could have opposed the claim only if they could have proved a better title than the one possessed by the plaintiff and were in possession. On failure to do so, the learned first appellate Court committed no error in decreeing the suit of the plaintiff. 15. At this stage, it would be apposite to refer to the judgment of the Hon'ble Supreme Court in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 . The facts therein were that a person had been put in possession of certain immovable properties in part performance of the agreement to sell under Section 53-A of the Transfer of Property Act. The plaintiff filed a suit for declaration that he is owner in possession of the suit property as also for permanent prohibitory injunction against the third party. The facts therein were that a person had been put in possession of certain immovable properties in part performance of the agreement to sell under Section 53-A of the Transfer of Property Act. The plaintiff filed a suit for declaration that he is owner in possession of the suit property as also for permanent prohibitory injunction against the third party. The Hon'ble Supreme Court held that the plaintiff cannot get a declaration as to the ownership because of the sale deed having not been executed, but is entitled to the declaration of possessory title and permanent prohibitory injunction. It is apt to reproduce the relevant observations as contained in paras 38 and 39 which read as under: "38. From the above evidence it is proved that the title of the plot vests in Shri Niwas Vaidhya. He has entered into contract for sale for consideration in favour of the plaintiff. Upto 1.12.1985 he was in possession of the property. On and after 1.12.1985 the plaintiff remained in possession of the plot. He raised a boundary wall to protect the possession as a prospective vendee. The contract for sale was acted upon. The defendant has not been able to prove any right to possess the suit property--a right better than that of the plaintiff--much less a title in himself. This is an appropriate case where the plaintiff must be held to have been in peaceful and lawful possession of the suit property invaded upon by the defendant otherwise than by due process of law and hence the status quo ante by reference to the date of accrual of cause of action must be restored followed by incidental and consequential reliefs of injunctions. The defendant may then seek recovery of possession but only by establishing his title therefore in duly constituted legal proceedings before a competent forum. The plaintiff had rushed to the Court without any loss of time. His averments made in the plaint and the evidence have remained uncontroverted and unrebutted. 39. On the proven facts stated hereinabove the plaintiff is not entitled to a declaration that he is owner of the property. The plaintiff had rushed to the Court without any loss of time. His averments made in the plaint and the evidence have remained uncontroverted and unrebutted. 39. On the proven facts stated hereinabove the plaintiff is not entitled to a declaration that he is owner of the property. It will not be out of place of mention that it was conceded at the Bar during the course of hearing that the plaintiff has filed as suit for specific performance of agreement to sell dated 1.12.1985 against Shri Niwas Vaidhya which is pending in the Civil Court. The suit had to be filed because Shri Niwas Vaidhya fully supporting the plaintiff upto the date of his being examined in the Court seems to have changed his mind subsequently. There is no pleading and no proof of the defendant having any title-much less a title better than that of the plaintiff-to the suit property. He could not have dispossessed the plaintiff nor interfered with the peaceful possession and enjoyment of the plot by the plaintiff. The plaintiff is, therefore, entitled to a declaration of his possessory title that he was in peaceful possession and enjoyment of the property until 8.2.1987 on which date his possession was threatened by the defendant by attempting to raise unauthorized construction over the property. The judgment and decree passed by the Trial Court and maintained by the First Appellate Court and the High Court need to be modified suitably to bring it in conformity with the finding arrived at by us herein." The substantial questions of law, referred supra, are answered accordingly. Substantial Question of Law No.3 and CMP No. 10471 of 2016. 16. By medium of this application, the defendants have sought to bring on record the certified copy of the plaint, written statement and order of withdrawal of suit dated 26.11.2005 passed in Civil Suit No. 1/1 of 2002, titled as 'Basheshwar Prasad and others versus Smt. Shyami and others'. 17. Learned counsel for the appellants would contend that in the suit so filed, the plaintiffs therein i.e. Basheshwar Prasad and others, who happened to be the owners of the land have claimed themselves to be not only the owners, but even in possession of the same. He would further contend that once the suit filed by the owners is dismissed as withdrawn, the present appeal would not be maintainable. 18. He would further contend that once the suit filed by the owners is dismissed as withdrawn, the present appeal would not be maintainable. 18. I really do not find any force in this contention. Admittedly, the plaintiff herein was not a party to the suit instituted by Basheshwar Prasad and others against the defendants herein. Once that be so, then obviously, neither the suit nor the pleadings therein nor result thereof can be used against the plaintiff. The application is disposed of and the substantial question of law is answered accordingly. 19. Consequently, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. JUDGMENT : Tarlok Singh Chauhan, J. Defendants are the appellants, who aggrieved by the judgment and decree passed by the learned first appellate Court, whereby it reversed the judgment and decree passed by the learned trial Court and decreed the suit of the plaintiff, have filed the instant appeal. 2. The parties hereinafter shall be referred to as the 'plaintiff' and 'defendants'. 3. The plaintiff filed a suit for permanent injunction on the allegations that she is owner in possession of the land bearing Khata Khatauni No.10/10, Khasra Nos. 88/18, 85/31, 86/31, 84/32, total kitas-4, measuring 14 biswas, situated in Mauza Mashobra, Pargana Dharti, Tehsil Kasauli, District Solan, H.P., as per the agreement dated 22.08.1993, executed between the plaintiff and S/Sh. Babu Ram, Sant Ram, Roshan Lal, Vidya Devi, Naresh Kumar, Banwari Lal, Gianwanti, Prem Lata, Raksha Devi and Krishna Devi. It was averred that pursuant to the agreement, possession was delivered to the plaintiff at the spot and since then she is in peaceful possession thereof. The defendants despite being strangers and having no right, title or interest were interfering in her possession, hence, the suit. 4. The defendants contested the suit by filing written statement wherein preliminary objections regarding locus standi, maintainability, no cause of action, bad for non-joinder of necessary parties, not properly valued for the purpose of court fee and jurisdiction and the Court having no territorial jurisdiction etc., were raised. On merits, it was contended that the plaintiff is neither owner nor in possession of the suit land. On merits, it was contended that the plaintiff is neither owner nor in possession of the suit land. It was averred that neither the plaintiff nor her predecessor-in-interest ever remained in possession of the suit land for the last 50 years and these were the defendants and earlier to that their parents, who were in actual and physical possession of the suit land. The agreement dated 22.08.1993 was denied and was alleged to be void and illegal on the basis of which no lawful right or title could be transferred to the plaintiff. It was further averred that the revenue record showing the names of Babu Ram etc. as owners in possession was not based upon the factual position existing on the spot. It was also averred that the agreement in question was of no value as the same was not registered under the provisions of law. 5. On the pleadings of the parties, the learned trial Court framed the following issues/additional issues on 04.12.1996 and 22.11.2002: "1. Whether the plaintiff is owner in possession of the suit land and defendants are threatening to dispossess the plaintiff? OPP. 2. Whether the plaintiff has no locus standi? OPD. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff has no cause of action? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 6. Whether the suit is bad for want of mis-joinder and non-joinder of necessary parties? OPD. 7. Whether this Court has no jurisdiction? OPD. 8. Whether the plaintiff is estopped from filing the suit, as alleged? OPD. 8A. Whether the defendant has become owner in possession of the suit land by way of adverse possession, as alleged? OPD. 9. Relief." 6. The learned trial Court after recording evidence and evaluating the same dismissed the suit vide judgment and decree dated 26.04.2004. Feeling aggrieved by the aforesaid judgment and decree, the plaintiff filed an appeal before the learned first appellate Court, who vide judgment and decree dated 20.09.2004 allowed the appeal, constraining the defendants to file the instant appeal. 7. On 23.05.2008, the appeal came to be admitted on the following substantial questions of law: "1. Whether the impugned judgment and decree passed by the Ld. Lower Appellate Court is sustainable especially when the Ext. PW-1/C was not registered as required under law? 2. 7. On 23.05.2008, the appeal came to be admitted on the following substantial questions of law: "1. Whether the impugned judgment and decree passed by the Ld. Lower Appellate Court is sustainable especially when the Ext. PW-1/C was not registered as required under law? 2. Whether any reliance can be placed upon Ex. PW-1/C an agreement of sale especially when it was not admissible in evidence without its registration? 3. Whether the plaintiff has proved the possession upon the suit land especially when the true owners had later on filed the suit for injunction against the appellants qua the same property?" I have heard the learned counsel for the parties and gone through the records of the case. 8. At the outset, it needs to be observed that defendants during the pendency of this appeal filed an application being CMP No.10471 of 2016 for placing on record certified copy of the plaint, written statement and the order of withdrawal of suit dated 26.11.2005 passed in Civil Suit No. 1/1 of 2002 titled Basheshwar Prasad and others versus Smt. Shyami and others. 9. Since, the application is intrinsically interlinked and interconnected with question No.3, therefore, the same will be taken up for consideration along with question No.3. Substantial Questions of Law No.1 and 2. 10. Since, both these questions are somehow interlinked and interconnected, therefore, they are taken up together for consideration. 11. It is more than settled that an agreement for sale by itself does not create any interest or charge in a property agreed to be sold and it is for this purpose that the agreement for sale is not treated as a conveyance for the purpose of Registration Act and, therefore, not compulsorily registered under Clause (b) of sub-section(1) of Section 17 of the Registration Act. 12. The learned counsel for the appellants vehemently argued that since the agreement of sale whereby possession has been delivered to the plaintiff was not admissible in evidence as the same was not registered and, therefore, could not have been relied upon by the learned first appellate Court for decreeing the suit of the plaintiff. In support of this submission, learned counsel for the appellants sought sustenance to be drawn from the provisions of Section 17(1A) of the Registration Act. In support of this submission, learned counsel for the appellants sought sustenance to be drawn from the provisions of Section 17(1A) of the Registration Act. It has to be noticed here that sub-section(1A) of Section 17 of the Indian Registration Act, 1908 was introduced by the Registration and Other Related Laws (Amendment) Act 2001, which came into force with effect from 24.09.2001. As per sub-section(1A) of Section 17 of the Registration Act, the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53-A. 13. However, the agreement of sale relied upon by the defendants in this case is dated 22.08.1993, much prior to sub-section(1A) of Section 17 of the Registration Act coming into force. Therefore, the document in question was not a compulsorily registrable document, even for the purpose of Section 53-A of the Act, since sub-section (1A) of Section 17 of the Registration Act was not in force as on 22.08.1993. 14. Apart from above, the suit filed by the plaintiff was for injunction and the Courts below were only required to see as to whether the plaintiff was in actual and physical possession of the property so as to entitle her to claim injunction. The defendants could have opposed the claim only if they could have proved a better title than the one possessed by the plaintiff and were in possession. On failure to do so, the learned first appellate Court committed no error in decreeing the suit of the plaintiff. 15. At this stage, it would be apposite to refer to the judgment of the Hon'ble Supreme Court in Ramesh Chand Ardawatiya vs. Anil Panjwani, (2003) 7 SCC 350 . The facts therein were that a person had been put in possession of certain immovable properties in part performance of the agreement to sell under Section 53-A of the Transfer of Property Act. The plaintiff filed a suit for declaration that he is owner in possession of the suit property as also for permanent prohibitory injunction against the third party. The facts therein were that a person had been put in possession of certain immovable properties in part performance of the agreement to sell under Section 53-A of the Transfer of Property Act. The plaintiff filed a suit for declaration that he is owner in possession of the suit property as also for permanent prohibitory injunction against the third party. The Hon'ble Supreme Court held that the plaintiff cannot get a declaration as to the ownership because of the sale deed having not been executed, but is entitled to the declaration of possessory title and permanent prohibitory injunction. It is apt to reproduce the relevant observations as contained in paras 38 and 39 which read as under: "38. From the above evidence it is proved that the title of the plot vests in Shri Niwas Vaidhya. He has entered into contract for sale for consideration in favour of the plaintiff. Upto 1.12.1985 he was in possession of the property. On and after 1.12.1985 the plaintiff remained in possession of the plot. He raised a boundary wall to protect the possession as a prospective vendee. The contract for sale was acted upon. The defendant has not been able to prove any right to possess the suit property--a right better than that of the plaintiff--much less a title in himself. This is an appropriate case where the plaintiff must be held to have been in peaceful and lawful possession of the suit property invaded upon by the defendant otherwise than by due process of law and hence the status quo ante by reference to the date of accrual of cause of action must be restored followed by incidental and consequential reliefs of injunctions. The defendant may then seek recovery of possession but only by establishing his title therefore in duly constituted legal proceedings before a competent forum. The plaintiff had rushed to the Court without any loss of time. His averments made in the plaint and the evidence have remained uncontroverted and unrebutted. 39. On the proven facts stated hereinabove the plaintiff is not entitled to a declaration that he is owner of the property. The plaintiff had rushed to the Court without any loss of time. His averments made in the plaint and the evidence have remained uncontroverted and unrebutted. 39. On the proven facts stated hereinabove the plaintiff is not entitled to a declaration that he is owner of the property. It will not be out of place of mention that it was conceded at the Bar during the course of hearing that the plaintiff has filed as suit for specific performance of agreement to sell dated 1.12.1985 against Shri Niwas Vaidhya which is pending in the Civil Court. The suit had to be filed because Shri Niwas Vaidhya fully supporting the plaintiff upto the date of his being examined in the Court seems to have changed his mind subsequently. There is no pleading and no proof of the defendant having any title-much less a title better than that of the plaintiff-to the suit property. He could not have dispossessed the plaintiff nor interfered with the peaceful possession and enjoyment of the plot by the plaintiff. The plaintiff is, therefore, entitled to a declaration of his possessory title that he was in peaceful possession and enjoyment of the property until 8.2.1987 on which date his possession was threatened by the defendant by attempting to raise unauthorized construction over the property. The judgment and decree passed by the Trial Court and maintained by the First Appellate Court and the High Court need to be modified suitably to bring it in conformity with the finding arrived at by us herein." The substantial questions of law, referred supra, are answered accordingly. Substantial Question of Law No.3 and CMP No. 10471 of 2016. 16. By medium of this application, the defendants have sought to bring on record the certified copy of the plaint, written statement and order of withdrawal of suit dated 26.11.2005 passed in Civil Suit No. 1/1 of 2002, titled as 'Basheshwar Prasad and others versus Smt. Shyami and others'. 17. Learned counsel for the appellants would contend that in the suit so filed, the plaintiffs therein i.e. Basheshwar Prasad and others, who happened to be the owners of the land have claimed themselves to be not only the owners, but even in possession of the same. He would further contend that once the suit filed by the owners is dismissed as withdrawn, the present appeal would not be maintainable. 18. He would further contend that once the suit filed by the owners is dismissed as withdrawn, the present appeal would not be maintainable. 18. I really do not find any force in this contention. Admittedly, the plaintiff herein was not a party to the suit instituted by Basheshwar Prasad and others against the defendants herein. Once that be so, then obviously, neither the suit nor the pleadings therein nor result thereof can be used against the plaintiff. The application is disposed of and the substantial question of law is answered accordingly. 19. Consequently, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.