Research › Search › Judgment

J&K High Court · body

2019 DIGILAW 299 (JK)

Vidya Lal v. Kulbhushan Kumar

2019-05-28

SANJEEV KUMAR

body2019
JUDGMENT : Sanjeev Kumar, J. 1. This Civil Second Appeal filed by the appellants (defendants before the trial Court) is directed against the judgment and decree dated 11.02.2013 passed by the Additional District Judge, Udhampur (for short "first appellate Court) in File No. 03/Civil appeal titled Vidya Lal and another v. Kulbushan Kumar Nargotra and another. Vide judgment and decree impugned, the first appellate Court has dismissed the appeal of the appellants-defendants filed against the judgment and decree dated 15.09.2007 passed by the court of Sub Judge, Udhampur (hereinafter referred to as the 'trial Court'). The instant appeal was admitted to hearing on 06.05.2019 on the following substantial questions of law: 01. Whether the judgment suffers from any perversity? 02. Whether the document, which is styled as Patta nama, can be looked into for determining the factum of possession, even if the same is not registered under Section 17 of the Registration Act, 1977? 2. With a view to appreciate the substantial questions of law formulated in the appeal and reproduced above, it would be necessary to take note of the brief resume of the facts leading to the filing of the instant appeal. The respondents filed the Civil Suit for Permanent Prohibitory Injunction restraining the appellants from interfering in the suit land measuring 1 Kanal falling under Kh. No. 165 on the ground that the respondents were in possession of the suit land by virtue of an agreement dated 06.02.1993 styled as Patta nama moida istamarari executed by the appellant no. 2-Anant Ram in favour of respondents. The suit was contested by the defendants inter alia on the ground that the Patta nama (agreement to lease) was not enforceable as there was delivery of possession. The appellants also took the plea that the document styled as Patta nama was got executed from the appellant No. 2 fraudulently by paying only Rs. 10,000/- and not Rs. 75000/- as agreed in the agreement and the balance amount of. Rs. 65000/- was not paid by the respondents despite demand. It may be noted that neither existence of Patta nama nor its execution was specifically denied by the appellants. On the basis of the pleadings of the parties, trial Court framed the following issues:- (i) Whether the plaintiffs are in possession of the suit land? Rs. 65000/- was not paid by the respondents despite demand. It may be noted that neither existence of Patta nama nor its execution was specifically denied by the appellants. On the basis of the pleadings of the parties, trial Court framed the following issues:- (i) Whether the plaintiffs are in possession of the suit land? OPP (ii) If issue No. 1 is proved, whether defendants are trying to raise construction over the suit land? OPP (iii) Whether the agreement to lease dated 06.02.1993 and affidavit dated 06.02.1993 have been executed fraudulently without paying the full consideration to defendant No. 2? if so to what effect? OPD 3. The Trial Court found all the issues proved in favour of the respondents and decreed the suit in their favour on 15.09.2007. In the judgment and decree passed by the trial Court, it was also stipulated that if the appellant No. 2 deposited the consideration amount of Rs. 75000/-, the respondents would return the suit land to the appellant No. 2. 4. Aggrieved by the judgment and decree of the trial Court, the appellants herein approached the first appellate court and assailed it on various grounds. The first appellate court after going through the record and appreciating the rival contentions did not find any material or justification to differ with the findings of fact recorded by the trial Court and consequently dismissed the appeal. This is how the appellants are before this Court in this Civil Second Appeal. The judgment and decree passed by the first appellate Court has been assailed primarily on the following grounds:- (i) That the judgment and decree of the first appellate court cannot sustained because the trial Court as well the first appellate Court have failed to appreciate that the document styled as Iqrar nama moida, patta istmarari dated 06.02.1993 on which the relief claimed in the suit is founded does not specify the boundaries of the land and thus, the suit was not maintainable for want of proper identification of the suit property; (ii) That the findings of fact recorded by both the courts below are based on no evidence and therefore, perverse rendering both the judgments liable to be set aside. 5. 5. In addition to the aforesaid grounds of challenge taken by the appellants in the memorandum of appeal, learned counsel appearing for the appellants, during the course of arguments projected a pure question of law that the document patta nama, the foundation of the suit, was a document compulsorily registerable under Section 17(b) of the Registration Act and in absence of such registration, the said document could not have been relied upon or admitted in evidence by the Courts below even to prove the factum of possession of the plaintiff. He draws the attention of the Court to Section 49 of the Registration Act to ouster his claim. 6. Since the aforesaid issue raised by the learned counsel for the appellants was a pure question of law to be determined in the light of the admitted facts of the case, as such, the same was allowed to be raised for the first time in the appeal. As a matter of fact, the issue raised by the learned counsel for the appellants was framed as second substantial question of law in this appeal. 7. Having heard learned counsel for the parties and perused the record, it is trite law that under Section 100 CPC, the High Court ordinarily does not interfere with the concurrent findings of fact except when these findings are based on no evidence and/or not while arriving at the said findings, relevant admissible evidences have not been taken into consideration or inadmissible evidence has been considered. The Hon'ble Supreme Court in the case of Gurdeep Kour and others v. Kaki and others, 2007 (1) SCC 546 has very aptly summed up the scope of interference of the High Court in the concurrent findings of facts while considering the Civil Second Appeal. The position of law on the issue summed up in the Gurdeep Kour's case (supra) was reiterated by the Supreme Court in the latter case of Narayanann Rajendran and another Vs. Lekshmy Sarojini and others decided on 12.02.2009, 2009 (5) SCC 264 ). In the case of Thiaagarajan and others v. Sri Venugopala Swamy B. Koil and others, reported in (2004) 5 SCC 762 , it was held by the Supreme Court that the High Court in its jurisdiction under Section 100 CPC was not justified in interference with the findings of facts. In the case of Thiaagarajan and others v. Sri Venugopala Swamy B. Koil and others, reported in (2004) 5 SCC 762 , it was held by the Supreme Court that the High Court in its jurisdiction under Section 100 CPC was not justified in interference with the findings of facts. The Court observed that it is the obligation of the courts of law to further clear intendment of legislature and not frustrate it by the excluding the same. It further went on held that mere findings of fact are recorded by the lower and the appellate court on evidence, the High Court in the second appeal cannot substitute its own finding on re-appreciation of evidence merely on the ground that another view was possible. In the second appeal, the court must restrict its decision on the substantial questions of law formulated at the time of admission of the appeal. It is equally well settled that the issue of perversity itself is a substantial question of law and if it is sufficiently demonstrated that the findings of fact recorded by the courts below though concurrent suffer from the perversity, the same can be considered by the High Court in the second appeal being a substantial question of law. This was held by the Supreme Court in the case of Municipal Committee, Hoshiarpur Vs Punjab State Electricity Board and others reported in (2010) 13 SCC 216 . It is in the light of these well settled legal principles, the findings of facts recorded by the courts below are required to be appreciated. It may be noted that the suit filed by the respondents before the trial Court was essentially a suit for permanent prohibitory injunction claiming a decree of restraint against the appellants from interfering in their possession. The title to the suit property was, thus, not an issue before the trial Court. The respondents were required only to prove sufficiently and demonstratively that they were in settled possession of the suit property and therefore, said right to protect their possession against the appellants. On the basis of the pleadings of the parties, the documentary and oral evidence recorded during the trial, the trial Court came to the conclusion that the respondents have sufficiently proved that they were in possession of the suit property and therefore, deserve to be protected against the attempt of the appellants to interfere with their peaceful possession. On the basis of the pleadings of the parties, the documentary and oral evidence recorded during the trial, the trial Court came to the conclusion that the respondents have sufficiently proved that they were in possession of the suit property and therefore, deserve to be protected against the attempt of the appellants to interfere with their peaceful possession. The claim of the possession projected by the respondents in the suit was, however, based on the document executed between the parties and styled as Patta nama moida ishtamari (agreement to lease). The execution of the document and even its contents has not been denied by the appellants. They, however, pleaded a fraud on the part of the respondents, who despite agreement did not pay the appellants' balance amount of Rs. 65,000/-. The appellants, however, admit that they received a sum of Rs. 10,000/- out of the agreed amount of Rs. 75,000/-. Going by the aforesaid admission of the appellants in the written statement, the Trial Court as well as the First Appellate Court have concluded concurrently that the appellants have not specifically disputed the possession of the respondents over the suit property. The courts below have also taken note of the fact that there is a clear stipulation in the agreement itself with regard to the delivery of possession to the respondents. Learned counsel for the appellants, however, submits that the documents being a lease agreement concerning the immovable property and for indefinite period, as such, the same was a document compulsorily registerable under Section 17 of the Registration Act. He further submits that if that is the position, then the consequence of Section 49 of the Registration Act would follow and such document cannot be looked into for any purpose, nor its terms and conditions be enforced in law. He, therefore, submits that both the courts below committed a serious error of law by taking note of the terms and conditions of the lease agreement, which was inadmissible in evidence and returning the findings of possession in favour of the respondents. As already observed hereinabove, this was not the case set up by the appellants either before the trial Court or before the appellate Court. In absence of such plea having been taken specifically, there was no occasion either for the trial Court or for the first appellate Court to consider the same. As already observed hereinabove, this was not the case set up by the appellants either before the trial Court or before the appellate Court. In absence of such plea having been taken specifically, there was no occasion either for the trial Court or for the first appellate Court to consider the same. When confronted with the aforesaid position, learned counsel for the appellants submits that the issue, which he has raised in this Civil Second Appeal, is a pure question of law and goes to the root of the case and, therefore, can be permitted to be raised even at this stage. He places reliance on the judgments of the Supreme Court in the case of Yeshwant Deorao v. Walchand Ramchand reported in 1951 AIR (SC) 16 and Dr. Shehla Burney and others V. Syed Ali Mossa Raza (dead) by Lrs and others, reported in 2011 (6) SCC 529 . This Court needs not go into this aspect in further detail for the reason that not only the appellants have been permitted to raise this question of law, but, based on the submissions of learned counsel representing the appellants, second substantial question of law in this appeal has been framed which shall be elaborately dealt with hereinafter. Suffice it to say that the findings of fact with regard to the actual physical possession of the respondents are based on the evidence led before the trial Court and the same cannot be said to be either based on no evidence, mis-appreciation of evidence or taking into consideration the evidence, which is inadmissible in law. For all these reasons and also the reasons, which would follow, I am of the considered view that the concurrent findings of facts returned by the trial Court and the first appellate Court are not perverse and therefore, do not call for interference by the High Court in the Civil Second Appeal. 8. Undoubtedly, the document, if read in its entirety is a lease agreement, both the parties to the document have also understood it to be a lease deed. That being so, if it is a lease deed pertaining to immovable property and for perpetuity then it is a document compulsorily registerable under Section 17 of the J&K Registration Act, 1977 provided it reserves a yearly rent exceeding fifty rupees. That being so, if it is a lease deed pertaining to immovable property and for perpetuity then it is a document compulsorily registerable under Section 17 of the J&K Registration Act, 1977 provided it reserves a yearly rent exceeding fifty rupees. From perusal of the lease deed, it clearly transpires that the parties have intended it to be a lease in perpetuity and total leased money settled between the parties is Rs. 75000/-. In these circumstances, it would be difficult to work out the yearly rent of the property. And if that being the position, whether the document in question is compulsorily registerable or not is itself debatable. However, without going into this aspect, it needs to be noticed that even if a document is compulsorily registerable, the same can still be looked into for collateral purposes and in appropriate cases to find out the nature of the possession of the party over the subject property. Section 49 of the Registration Act which is heavily relied upon by the learned counsel for the appellants, needs to be reproduced here under:- 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] to be registered shall- (a) affect any immovable property comprised therein, (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. 9. As is evident from the perusal of Section 49, a document which is required to be not registered if unregistered is inadmissible in evidence and shall have no affect on any immovable property comprised therein nor the same can be received as an evidence of any transaction affecting such property or conferring such power, unless it has been registered. The Supreme Court in the case of Rana Vidya Bushan Singh v. Ratiram, Civil Appeal No. 460/1996 decided on 28.01.1969 observed as under:- "A document required by law to be registered if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property." 10. If we consider Section 49 in the light of Section 79 of the Registration Act and observations of the Supreme Court reproduced hereinabove, it is abundantly clear that the document in question i.e. patta nama, though if unregistered may not be admissible in evidence for the purpose of creating, declaring assigning, limiting or extinguishing right to immovable property yet the same can be looked into to prove the nature of possession of the party to such agreement/document. 11. From the conjoint reading of Section 17 and section 49 of the Registration Act, it clearly transpires that the document if unregistered but is required to be compulsorily registered under Section 17 cannot be admitted in evidence to prove its terms and conditions, however, the same can be looked into for a collateral purpose. The nature and possession of the party indicated in such a document could be collateral purpose and therefore, the document can be considered to prove such nature of possession. The answer to the substantial question of law No. 2 has been given in the light of discussion made during the course of the arguments, though, there was no factual foundation laid for its adjudication. This is so, because it has not been convincingly demonstrated before this Court that the document which purports to be a lease agreement was one reserving yearly rent exceeding Rs. 50 per annum. 12. For the foregoing reasons, I find no merit in this appeal. The same is, accordingly, dismissed along with connected CM(s). 13. Send down the record along with copy of this judgment.