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2019 DIGILAW 2517 (ALL)

Gayatri Devi v. District Judge

2019-11-11

MANOJ KUMAR GUPTA

body2019
JUDGMENT : 1. The instant petition is directed against the order dated 31.5.2019, whereby the appellate court allowed the appeal filed by the third respondent (plaintiff of Original Suit No.46 of 2018) and directed the parties to maintain status quo in respect of the suit property. While passing the order of status quo, the appellate court has recorded finding with regard to possession of the entire suit property in favour of the plaintiff-respondent. 2. The plaintiff-respondent instituted the suit against Gayatri Devi, the original petitioner (since dead and now represented by her heirs and legal representatives), for permanent prohibitory injunction restraining her from interfering in his exclusive possession of the suit property which is stated to be in shape of a house alongwith the open land and tin shed. Gayatri Devi was the real sister of the plaintiff-respondent. According to the admitted case of the parties, the suit land was purchased jointly by them by a sale deed dated 6.2.1979 (registered on 12.3.1979). It is also admitted to the parties that both of them had half share in the said property. According to the plaintiff-respondent, he purchased half share of his sister Gayatri Devi for Rs.50000/-, evidenced by a sale deed-cum-receipt dated 5.1.2006. It is on the basis of this sale deed-cum-receipt that the plaintiff-respondent claimed exclusive title and possession over the entire suit property. The petitioner contested the suit by filing written statement contending that the alleged sale deed-cum-receipt is a forged document; she never entered into any such transaction nor ever received any money for transfer of her share in favour of the plaintiff; that she reposed great faith in her brother; that the constructions were raised over the suit land with the joint funds of the parties; and that she still has half share in the suit property. The trial court, after considering the entire facts of the case, rejected the application for temporary injunction, by order dated 12.2.2019. Aggrieved thereby, the plaintiff–respondent filed appeal which has been allowed by impugned order dated 31.5.2019. 3. Counsel for the petitioner Sri Ashish Agarwal submitted that the appellate court committed a grave error of law in placing reliance upon receipt-cum-sale deed dated 5.1.2006. It is submitted that the said receipt-cum-sale deed is inadmissible in evidence and moreover the share of the petitioner, which admittedly had a value of more than Rs.100/-could not stand transferred thereby. 3. Counsel for the petitioner Sri Ashish Agarwal submitted that the appellate court committed a grave error of law in placing reliance upon receipt-cum-sale deed dated 5.1.2006. It is submitted that the said receipt-cum-sale deed is inadmissible in evidence and moreover the share of the petitioner, which admittedly had a value of more than Rs.100/-could not stand transferred thereby. He further pointed out that initially the plaintiff-respondent filed the original document dated 5.1.2006 and on its strength succeeded in obtaining exparte ad interim injunction. Soon thereafter he filed application dated 29.3.2018 for return of original document on the pretext that it is required for taking loan. The trial court, without examining whether the document is required to be impounded or not, proceeded to pass order for return of the document subject to filing of a certified copy thereof. The plaintiff-respondent did not file certified copy of the said document nor he could had done so as it was not a registered deed. He substituted the original document with a copy thereof, attested by public notary. As soon as the petitioner entered appearance, she raised specific objection that the receipt-cum-sale deed dated 5.1.2006 is a forged document and it did not bear her signature. She requested the trial court to direct the plaintiffs to file the original document. The application filed in this regard was allowed by the trial court by order dated 11.7.2018. However, the plaintiff-respondent came up with a new story on the next date and alleged that while he was coming to the court alongwith the original document, it was stolen and he expressed his inability to place on record the original document. The petitioner also filed a first information report levelling charge of forgery and in which, the police after investigation, has submitted a charge sheet. It is further submitted that the appellate court, without examining whether the plaintiff-respondent, on the basis of said receipt-cum-sale deed can claim exclusive title, proceeded to grant injunction. It is further submitted that since the petitioner is co-owner of the suit property, therefore, she will be deemed to be in joint possession of every inch of the suit property. 4. On the other hand, Sri H.M. Srivastava, counsel for the plaintiff-respondent submitted that the parties are yet to lead evidence in respect of their title, therefore, the appellate court was justified in protecting the possession of the plaintiff-respondent in the meantime. 4. On the other hand, Sri H.M. Srivastava, counsel for the plaintiff-respondent submitted that the parties are yet to lead evidence in respect of their title, therefore, the appellate court was justified in protecting the possession of the plaintiff-respondent in the meantime. The submission is that the plaintiff-respondent got exclusive possession of the entire suit property in pursuance of sale deed-cum-receipt dated 5.1.2006. 5. I have considered the submissions of learned counsel for the parties and perused the material on record. 6. Indisputably, the suit property was jointly purchased by the plaintiff-respondent and his sister Gayatri Devi (the original petitioner herein). It is also not disputed that thereby each become owner to the extent of half. The plaintiff-respondent claim exclusive title over the suit property on the basis of alleged unregistered receipt-cum-sale deed dated 5.1.2006. Section 54 of the Transfer of Property Act, 1882 stipulates that in case of tangible immovable property of the value of rupees hundred and above, the sale can only be effected by a registered instrument. Section 17(1) of the Registration Act, 1908 also makes registration of such document compulsory. Concededly, the document dated 5.1.2006 is not a registered one although thereby, a property worth more than Rs.100/-is sought to be conveyed to the plaintiff-respondent. On the face of it, such a document would not result in transfer of the share of the petitioner in favour of the plaintiff-respondent. The trial court, while deciding the application for temporary injunction also rightly held so. 7. The original of the said document was taken back by the plaintiff-respondent and now he alleges that it is not in his possession, the same having been stolen. The specific case of the petitioner is that apart from the fact that the said document cannot constitute transfer of any interest in immovable properties, it was a result of fraud and fabrication. She specifically denied her signature on the said document. The trial court also duly considered the said fact while holding that the plaintiff-respondent did not have any prima facie case. However, the appellate court has wrongly brushed aside the said important aspect by observing that the issue relating to title shall be decided in the suit and is not required to be considered at this stage. 8. The trial court also duly considered the said fact while holding that the plaintiff-respondent did not have any prima facie case. However, the appellate court has wrongly brushed aside the said important aspect by observing that the issue relating to title shall be decided in the suit and is not required to be considered at this stage. 8. For establishing prima facie case, the plaintiff-respondent had to satisfy the courts that his claim of title is prima facie sustainable in law and if given a chance to lead evidence, the same could be established. However, in the instant case, as noted above, the law does not recognise transfer of immovable property of value more than Rs.100/-by an unregistered instrument and thus, no matter how much evidence is led by the plaintiff-respondent, he shall not be able to prove his title in respect of the entire suit property. Even if the plaintiff-respondent succeeds in proving payment of any sum to the petitioner, at best, he can claim its refund. The appellate court has completely failed to advert to the said aspects. 9. It is settled law that every co-owner is deemed to be in joint possession of every inch of the property, unless the property is partitioned. The plaintiff-respondent also admits that the parties were in joint possession of the suit property. His case in the plaint is that upon execution of sale deed cum-receipt dated 5.1.2006, the petitioner delivered possession of her share also to him. However, once the said document is found to be of no evidentiary value, the appellate court erred in accepting the case set up in this regard by the plaintiff-respondent. 10. Learned counsel for the petitioner has placed reliance on decision of Supreme Court in Kochkunju Nair vs. Koshy Alexander & others, AIR, 1999 SC 2272 wherein the Supreme Court has held as follows:- “Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. All the three essentials are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others.” 11. It is relevant to note that the appellate court, while allowing the appeal, has observed that although a counter claim has been filed by the petitioner alongwith written statement but it seems that the court fees has not been paid by her. The counter claim preferred by the petitioner alongwith written statement was for declaration that the receipt-cum-sale deed dated 5.1.2006 is a forged document and be declared null and void. Even if relief claimed by way of counter claim is ignored, the petitioner still has right to oppose the suit by taking the plea that receipt-cum-sale deed dated 5.1.2006 was a forged one and does not confer exclusive title in favour of the plaintiff. Therefore, even if no court fees has been paid by the petitioner on the counter claim, it will hardly have any effect on the merits of her case. 12. The Amin, who inspected the suit property, has mentioned that the plaintiff-respondent informed him that he has constructed the residential building, tin shed and toilet over open land. However, the petitioner claimed to be in possession of tin shed and open land. The appellate court went a step further and observed that the open land, tin shed, toilet etc. appear to be in exclusive possession of the plaintiff-respondent and in case he is dispossessed by the petitioner, he will suffer irreparable loss and injury. The entire approach of the appellate court is manifestly illegal. Once there is no prima facie case in favour of the plaintiff-respondent and the petitioner is joint owner, it is wholly against settled legal principle to assume exclusive possession of the plaintiff-respondent over the entire property or to restrain the petitioner from enjoying the suit property. 13. The entire approach of the appellate court is manifestly illegal. Once there is no prima facie case in favour of the plaintiff-respondent and the petitioner is joint owner, it is wholly against settled legal principle to assume exclusive possession of the plaintiff-respondent over the entire property or to restrain the petitioner from enjoying the suit property. 13. In consequence and as a result of the discussion made above, the impugned order of the appellate court dated 31.5.2019 is set aside. The petition stands allowed. 14. As prayed by Sri H.M. Srivastava, learned counsel for the plaintiff-respondent, the trial court is directed to decide the suit expeditiously, by fixing short dates and without granting unnecessary adjournments to the parties. The trial court shall decide the suit on merits uninfluenced by any finding recorded by the courts below or in the instant order.