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2020 DIGILAW 53 (GAU)

Bhrigu Majhi v. Srikanta Bordoloi

2020-01-20

ACHINTYA MALLA BUJOR BARUA

body2020
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. BD Deka, learned counsel for the appellants. Also heard Mr. AC Sarma, learned counsel for the respondent. 2. The respondent/plaintiff instituted T.S No. 9/2001 in the Court of the learned Civil Judge (Sr. Div), Morigaon claiming for right, title and interest over the schedule A land and further for declaring that the registered gift deed No. 843 dated 20.07.2001 is null and void as per the provisions of Section 52 of the Transfer of Property Act with a further decree for delivery of khas possession as well as for permanent injunction restraining the principal defendant from creating any disturbance to the plaintiff from possessing the suit land. The suit land is a plot of land measuring 1 katha 15 lechas out of 1 bigha, 3 kathas and 12 lechas as mentioned in the registered sale deed No. 30 dated 04.01.1989 and which is a part of 0 bigha, 1 katha and 15 lechas of land mentioned in schedule 'Gha' of a decree passed in T.S No. 52/92 in the Court of learned District Judge, Morigaon. 3. In paragraph 3 of the plaint it has been stated that the principal defendant No. 1, who was in possession of 1 katha 15 lechas of the suit land sold 1 katha 10 lechas therefrom by executing a registered sale deed No. 30 dated 04.01.1989 for a consideration of Rs. 49,000/- and delivered possession thereof to the plaintiff while he was in possession of the suit land. The plaintiff also applied for mutation and on 20.06.1992 obtained permission from Morigaon Town Committee for construction of a permanent dwelling house. 4. In paragraph 8, it is stated that on 01.07.2001 when the plaintiff went to his purchased plot of land, the principal defendant No. 1 along with the principal defendants No. 2, 3 and 4 obstructed him from entering the said land. 5. In paragraph 12 of the written statement, the principal defendants No. 1, 2 and 3 in answer to paragraph 3 of the plaint had not admitted that the principal defendant No. 1 was in possession of 1 katha, 15 lechas of land out of which he had sold out 1 katha, 10 lechas by registered sale deed in favour of the plaintiff for a consideration of Rs. 49,000/-. 49,000/-. In other words, the principal defendants had wholly denied the claim of the plaintiff as regards the purchase of the land by a registered sale deed. The averments made in paragraph 8 of the plaint were also denied by stating it to be false and baseless. 6. On the other hand, in paragraph 21 of the written statement the principal defendants took the stand that the registered sale deed was executed by the principal defendant No. 1 in favour of the plaintiff on 04.01.1989, but the sale was not effected by any delivery of possession. It was further stated that there were several persons claiming right title and interest and possession over the land and, therefore, the principal defendant No. 1 failed to deliver possession to the plaintiff. 7. A reading of the stand of the principal defendants in paragraph 21 of the written statement gives an indication that the defendants may have created a right in favour of many other persons and, therefore, they had not handed over the possession and as such according to the defendants the sale itself is an invalid sale. 8. The learned trial court in its judgment dated 06.09.2002 while deciding the issues Nos. 5 and 6 as to whether the plaintiff has got right title and interest over the suit land and whether the plaintiff is entitled to get khas possession of the suit land, arrived at its conclusion after discussing the evidence on record that although the exhibit-1 sale deed was executed between the plaintiff and the principal defendant No. 1, but the possession of the suit land was never handed over to the plaintiff at any point of time, as there was no vacant land over the dag No. 22 of PP No. 708 at the relevant point of time. 9. The learned trial court took the view that in a sale of tangible immovable property there has to be an execution of registered sale deed accompanied by transfer of possession of the land. Mere recital of delivery of possession in the sale deed is not sufficient and there must be a real delivery of the property. 10. 9. The learned trial court took the view that in a sale of tangible immovable property there has to be an execution of registered sale deed accompanied by transfer of possession of the land. Mere recital of delivery of possession in the sale deed is not sufficient and there must be a real delivery of the property. 10. The learned court also arrived at the conclusion that as per Section 54 of the Transfer of Property Act delivery of tangible immovable property takes places when the seller places the buyer, or such person as he directs, in possession of the property and a mere registration of the sale deed is not a proof of an 'operation transfer'. 11. By arriving at such conclusion, the suit of the plaintiff stood dismissed. 12. On appeal, being Title Appeal No. 10/2006, the learned District Judge, Morigaon reversed the judgment of the learned trial court by its judgment dated 05.09.2007. 13. The learned appellate court in paragraph 28 of its judgment arrived at its conclusion that as the principal defendant No. 1 had executed the exhibit-1 registered sale deed in favour of the plaintiff and the execution itself had not been disputed and there being no plea by the defendants that their possession over the suit land is adverse to the interest of the plaintiff and further that their possession had been continuing beyond the statutory period, maturing into a title, the plaintiff would be entitled to get the possession of the suit land even if the defendants had constructed some structures over it. Accordingly, it was held that the plaintiff would be entitled to a delivery of khas possession of the land. 14. In the resultant regular second appeal against the judgment of the appellate Court, a substantial question of law has been raised by the appellant principal defendants as to whether non-delivery of the suit land pursuant to the registered sale deed being executed would render the sale itself to be an invalid sale. 15. Without going into the question as to the claim of the plaintiff in the suit, the stand of the principal defendants which has been lucidly placed by the learned trial Court in paragraph-30 of its judgment can be taken note of which is as follows:- "30. ....Since the date of purchased the prin. defdt. No. 1 has been in possession over his purchased plot of land. ....Since the date of purchased the prin. defdt. No. 1 has been in possession over his purchased plot of land. Out of the said purchased plot of land he sold 10 lessas of land to Sri Nipun Borah and he gifted 10 lessas of land to his daughter Smti. Jayanti Medhi, the Prin. Defdt. No. 5(D.W. 4) about 15/16 years back at the time of marriage at first verbally and thereafter, executed a registered gift deed to avoid future complicacy. All the D.W's -D.W. 1, D.W. 2, D.W. 3, D.W. 4 and D.W. 5 supported the version of D.W. 6 Sri Bhrigu Majhi in respect of the alleged gift of 10 lessas of the suit land to his daughter about 12 to 13 years back verbally and D.W. 4 has been staying there at first by constructing a thatches house and thereafter, she constructed a Assam type pucca house consist of 5 rooms, and stayed there alongwith his family. All the D.Ws. equally deposed before the court clearly that there was no vacant plot of land there to handover the possession to the plaintiff." 16. The learned counsel for the appellant principal defendants does not dispute the same. From the stand of the principal defendants as described in paragraph 30 of the judgment of the trial Court, it is apparent that the principal defendants take the plea that as the possession of the land had not been handed over to the plaintiff even after execution of the registered sale deed, therefore, the sale itself is not complete and consequent thereof, the registered sale deed would have no validity in the eye of law. 17. Within the narrow conspectus of the fact as relied upon by the defendants to sustain the substantial question of law raised by them, reliance have been placed by the appellant principal defendants on a pronouncement of the Supreme Court in Kaliaperumal Vs. Rajagopal and Another, reported in (2009) 4 SCC 193 , wherein in a dispute where the possession of the land was also not handed over to the purchaser, a conclusion was arrived that if the real intention of the parties was that the title to the properties should pass to the purchaser on execution of the deed and its registration, the possession of the suit properties would have been delivered to the purchaser. The relevant provision of the pronouncement is as under:- "22. ............ The relevant provision of the pronouncement is as under:- "22. ............ If really the intention of the parties was that the title to the properties should pass to the appellant on execution of the deed and its registration, the possession of the suit properties would have been delivered to the appellant." 18. We have gone through the judgment of the Hon'ble Supreme Court in Kaliaperumal (supra) and have taken note that the aforesaid extract which comprises a part of paragraph 22 of the judgment cannot be read in isolation to arrive at a conclusion that in the event the seller of a land does not hand over the possession to the purchaser, it by itself would be a situation to construe that there was no intention on the part of the seller to sell such land to the purchaser. For the purpose we refer to the factual background of the case before the Hon'ble Supreme Court to understand under what circumstances it was so provided, which is as under:- (i) While the document concerned was presented before the Sub-Registrar for its registration, the seller admitted the execution of the document, but refused to put his thumb impression or sign the endorsement made on the deed in token admission of its execution on the ground that the seller had not paid the remaining consideration of Rs. 40,000/- as stipulated in the deed; (ii) The purchaser who was the plaintiff in the suit had even failed to prove that he had paid an amount of Rs. 25,000/- to the seller on 21.07.1983 i.e. before the document was presented for its registration on 26.10.1983. 19. In the circumstance, it was a situation where the purchaser had not paid any amount to the seller although a deed of sale was presented for its registration before the registering authority. 20. In the instant case, a distinguishing fact would be that it is an admitted position of the parties that whatever was the sale consideration pursuant to the exhibit-1 registered sale deed, the entire amount was paid by the purchaser to the seller and it is for some other reason that the seller had not handed over the possession of the land in question to the purchaser, as per the plea taken by the principal defendants. 21. 21. In Kaliaperumal's case, the Supreme Court in paragraph 11 thereof had taken into consideration that the purchaser had failed to prove even the payment of Rs. 25000/- let alone the balance consideration of Rs. 40000 to the seller. Accordingly in paragraph 15, a question was posed as to whether the title to the disputed properties had passed on to the purchaser when the sale deed dated 26.06.1983 was registered on 26.10.1983, although, admittedly no amount was paid to the seller. In paragraph 18, a conclusion was arrived that normally ownership and title to the property would pass on to the purchaser on registration of the sale deed w.e.f., the execution of the sale deed, but it is not an invariable rule, as a true test of passing of property is the intention of parties. Though registration is prima facie proof of an intention to transfer the property, it is not proof of an operative transfer if payment of consideration (price) is a condition precedent for passing of the property. 22. Paragraph 15 and 18 of the judgment in Kaliaperumal's case are extracted as below: "15. The question posed for our consideration is whether title to the disputed properties passed to the appellant when the sale deed dated 26.6.1983 was registered on October 26, 1983, though admittedly no amount was paid towards consideration to the respondents." "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 of parties. Though registration is prima facie proof of an 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." 23. By taking into consideration that the sale consideration was not paid by the purchaser to the seller, in paragraph 21 of the judgment, a finding was recorded that ownership of the property would be transferred to the purchaser only after receipt of the entire consideration by the seller as a condition precedent. 24. By taking into consideration that the sale consideration was not paid by the purchaser to the seller, in paragraph 21 of the judgment, a finding was recorded that ownership of the property would be transferred to the purchaser only after receipt of the entire consideration by the seller as a condition precedent. 24. In the aforesaid circumstances, where no payment of the sale consideration was made, the Hon'ble Supreme Court also took note of that in such circumstances, even the possession of the property was not handed over by the seller to the purchaser. In the totality of the circumstances of the said case, the Hon'ble Supreme Court had also taken note that non-delivery of the possession of the property would also be a factor to arrive at the intention of the parties as to whether the title to the properties had passed on from the seller to the purchaser. 25. In the instant case, as already concluded the other element i.e. of the sale consideration being not paid by the purchaser to the seller is absent and neither it is a case of the principal defendants/seller that the sale consideration was not paid. In the absence of the totality of the circumstances being present in the instant case, as was there in the case before the Hon'ble Supreme Court, we are of the view that only the element of not handing over the possession of the property cannot by itself be a basis to arrive at a conclusion on the intention of the parties that the title of the properties had not passed on from the seller to the purchaser. 26. Accordingly, we are of the view that the reliance of the appellant principal defendants on the extracted portion of paragraph 22 that non-delivery of the possession can also be an element to determine the intention of the parties, cannot be accepted. 27. Again whether a mere non-delivery of the property even after payment of the full sale consideration can be a basis to conclude that the resultant sale was not a valid sale, the provisions of Section 54 of the Transfer of Property Act would also have to be looked into. 28. Section 54 of the Transfer of Property Act provides as follows: "54. "Sale" defined.- 'Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. 28. Section 54 of the Transfer of Property Act provides as follows: "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-Such 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. In 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." 29. Sale is defined to be a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Section 54 also provides as to how a sale is made by providing that in case of tangible immoveable property of the value of one hundred rupees and upwards, it can be made only by a registered instrument. 30. A reading of the said provisions of Section 54 makes it implicit that handing over of property is not an element for understanding as to whether the transfer of ownership had taken place pursuant to a sale. Further reading of Section 54 would show that in 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. The element of delivery of property in a sale is relevant only when the value of the tangible immovable property would be less than one hundred rupees where a transfer of such property can be made either by a registered instrument or by delivery of possession. The said aspect was also deliberated upon in a judgment of this Court rendered in Manmatha Ranjan Trivedi, Vs. Gopal Krishna T.E. Co. (P) Ltd. & Ors, reported in 2006 (SUPPL) GLT 718 wherein in paragraph 12, it was held as follows: "12. The said aspect was also deliberated upon in a judgment of this Court rendered in Manmatha Ranjan Trivedi, Vs. Gopal Krishna T.E. Co. (P) Ltd. & Ors, reported in 2006 (SUPPL) GLT 718 wherein in paragraph 12, it was held as follows: "12. It is thus clear that in order to acquire a valid right, title and interest over any immovable property valued 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 the 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. The defendants/respondents have not challenged the aforesaid sale deeds by counter-claim or otherwise. The sale deed in question has been duly proved by the appellant/plaintiff by adducing necessary evidence and exhibited without any objection. Although it is submitted by Mr. Sahewalla that vendor of the sale deed not having been examined by the plaintiff/appellant to prove the sale deed, the same cannot be said to have been legally proved, the said submission is not tenable in law, inasmuch as, when a document is exhibited, along with the document its contents will also go. The learned lower appellate court reversed the findings on issue No. 6 on re-appreciation of the statements of witnesses, for alleged non-delivery of possession of the suit land by the vendors of the plaintiff. Such possession not having any bearing in the transfer of title by virtue of the registered sale deed, the said submission is not acceptable. Accordingly, the finding on the issue No. 6 arrived at by the learned appellate court on wrong notion of law is set aside and the finding that arrived at by the learned trial court is restored." 31. Accordingly, the finding on the issue No. 6 arrived at by the learned appellate court on wrong notion of law is set aside and the finding that arrived at by the learned trial court is restored." 31. The view taken by this Court in paragraph 12 of its judgment in Manmatha Ranjan Trivedi (supra) also finds concurrence with the view taken herein that delivery of possession of the property alone cannot be an element to determine that any non-delivery thereof would render the registered sale deed to be an invalid sale. In view of such conclusion being arrived at, the substantial question raised by the appellant in the instant regular second appeal as to whether a mere non-delivery of the possession of the property by the seller to the purchaser even after full payment of the sale consideration and registration of the resultant sale deed would render such sale to be invalid is answered in negative against the appellants. As the substantial question is answered in the negative, we do not find any merit in this appeal and the same stands dismissed. Accordingly the judgment dated 05.09.2007 in T.A. No. 10/2006 is up held. The consequences of such judgment and decree passed are also accordingly up-held. 32. In terms of the above, the appeal stands dismissed. 33. Send back the LCR.