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2020 DIGILAW 945 (BOM)

Narayan Kishan Bhoyar v. Hari Kisan Bhoyar

2020-09-08

ANIL SATYAVIJAY KILOR

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JUDGMENT : Anil Satyavijay Kilor, J. 1. The appellants by the present appeal, have questioned the correctness and legality of concurrent findings given by both the Courts below as regards the ownership of the plaintiff/respondent of super structure constructed on the land leased out in the name of appellant No. 1 by the Nagpur Municipal Corporation. 2. The facts leading to the present appeal are as follows: The suit property i.e. structure constructed on the ground floor of plot No. 47-B, Shiv Nagar, Ward No. 20, Nagpur having Municipal House No. 1547. The land on which the suit house was constructed by the plaintiff, the said land was allotted by the Nagpur Municipal Commissioner in the name of defendant No. 1. The defendant No. 1 and plaintiff are the real brothers. The defendant No. 1 had executed an agreement dated 18 December, 1989 which was duly registered on 3 February, 1990 in the office of Sub Registrar, Nagpur whereby the defendant No. 1 permitted the plaintiff to construct a house on a lease hold land of the defendant No. 1 and thereby awarded the ownership to the extend of the ground floor super structure. 3. In pursuance to the terms of the agreement, the plaintiff constructed the ground floor and started residing therein. The Nagpur Municipal Corporation has assessed the house of the plaintiff by giving house No. 1547. Whereas after the construction made by the defendant No. 1 of the first floor, the Nagpur Municipal Corporation assessed the same in the name of defendant No. 1 and has given distinct house No. 1547-A. The plaintiff and defendant No. 1st are paying the tax of the house separately since 1 April, 1990 of their respective floors. 4. The cause of action for filing the suit by the plaintiff for declaration and injunction was the public notice published in daily newspaper "Deshonatti" on 15 July, 2006, intimating the public at large that the defendant Nos. 2 and 3 have entered into an agreement to purchase the entire plot alongwith construction standing thereon and called for the claim if any, in respect of the property. The plaintiff after having got the knowledge of the public notice sent his objection to the defendant Nos. 2 and 3/appellant No. 2 and 3 on 20 July, 2006. 5. 2 and 3 have entered into an agreement to purchase the entire plot alongwith construction standing thereon and called for the claim if any, in respect of the property. The plaintiff after having got the knowledge of the public notice sent his objection to the defendant Nos. 2 and 3/appellant No. 2 and 3 on 20 July, 2006. 5. Since the plaintiff has been enjoying suit structure as an owner and since the said suit structure is having separate electric connection and tap connection, the suit has been filed for getting the declaration in respect of the title of the structure on the ground floor and also for injunction to restrain the defendants from causing any disturbance and dispossession. 6. The learned trial Court decreed the suit and thereby declared the plaintiff as the owner of the suit structure on the ground floor and further restrained perpetually the defendants or anybody on behalf of them from causing interference, dispossession to the plaintiff from the ground floor i.e. suit property, vide judgment and decree dated 18 March, 2008 in Special Civil Suit No. 863 of 2006. 7. The defendants went in appeal which came to be dismissed vide judgment and decree dated 22 April, 2009 passed in Regular Civil Appeal No. 264 of 2008, confirming the judgment and decree passed by the trial Court. The same is under challenged in the present appeal. 8. This Court while admitting the present appeal on 16 November, 2009 has framed the following substantial questions of law: "(A) Whether under the agreement to construct new house ownership of two separate floor - ground floor and first floor, can be created without registering conveyance on a stamp paper of Rs. 10/- and what is the effect of such an agreement? (B) Whether the decree as granted by the trial Court and confirmed by the first Appellate Court, is sustainable in law?" 9. Heard Shri Kshirsagar, learned counsel for the appellants/defendants and Shri Harkare, learned counsel for the respondent/plaintiff. 10. Shri Kshirsagar, learned counsel for the appellants/defendants submits that the plaintiff is in permissive possession of the suit structure and in absence of any evidence both the Courts have committed error in holding that the suit structure had been constructed by the plaintiff and he is the owner of the suit structure. 11. 10. Shri Kshirsagar, learned counsel for the appellants/defendants submits that the plaintiff is in permissive possession of the suit structure and in absence of any evidence both the Courts have committed error in holding that the suit structure had been constructed by the plaintiff and he is the owner of the suit structure. 11. Shri Kshirsagar, learned counsel for the appellants argues that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance and the alleged agreement dated 18 December, 1989 would not create any ownership in favour of the plaintiff and therefore both the Courts erred in concurrently holding that the plaintiff is the owner of the suit structure. 12. Shri Kshirsagar, learned counsel for the appellants in support of his contentions has placed reliance on the judgment of the Hon'ble the Supreme Court of India in a case of Suraj Lamp and Industries Private Limited v. State of Haryana and another reported in AIR 2012 Supreme Court Cases 206 wherein it has been held that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. 13. Shri Kshirsagar, learned counsel for the appellants further relies on the judgment of this Court in a case of Hausu Dhondba Uike and another v. Sahebrao Chintaman Salam and another reported in 2014 (4) Mh.LJ 240 and submits that the burden was on the plaintiff to prove that ownership was transferred to him. 14. He further placed his reliance upon the judgment of the Hon'ble the Supreme Court of India in the case of Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others reported in AIR 2008 SC 901 and submits that revenue record is not a document of title. It merely raises a presumption in regard to possession. He further relies on the judgment of Madhya Pradesh in a case of Ramswaroop (Dead), through Legal Representatives v. State of M.P. AIR 2004 MP 59 and to submit that in absence of producing any evidence to prove ownership, declaratory relief cannot be granted. 15. Per contra, Shri Harkare, learned counsel for the respondent-plaintiff supports the judgments and decrees of both the Court's below and submits that under Section 100 of Code of Civil Procedure, this Court cannot interfere into the finding of fact recorded by both the Courts below. 16. 15. Per contra, Shri Harkare, learned counsel for the respondent-plaintiff supports the judgments and decrees of both the Court's below and submits that under Section 100 of Code of Civil Procedure, this Court cannot interfere into the finding of fact recorded by both the Courts below. 16. Shri Harkare, learned counsel for the respondent/plaintiff has placed reliance on the Hon'ble the Supreme Court of India in case of Javer Chand and others v. Pukhraj Surana, reported in AIR 1957 SC 1655 and submits that once a document has been admitted in evidence, it is not open either to the trial Court itself or to a Court of Appeal or Revision to go behind that order. 17. To consider the rival contentions of the parties, I have perused the judgments and decrees of both the Courts-below and also perused the record and proceedings of the Courts-below. 18. The record depicts the following undisputed facts: (a) The land in question is owned by the Municipal Corporation, Nagpur. (b) The said land was allotted by the Municipal Corporation to the defendant No. 1 on lease for 30 years. (c) The defendant No. 1 had executed agreement (Exh. 28) for construction of new house with the plaintiff, on 18 December, 1989 and the same was registered in the office of rd Sub-Registrar, Nagpur on 03 February, 1990. (d) As per the agreement (Exh. 28), the defendant No. 1 agreed to allow the plaintiff to carry out the construction on ground floor which is a suit structure. (e) The name of the plaintiff was mutated in the record of Municipal Corporation and thereby the suit structure was allotted house No. 1547 by the Municipal Corporation. (f) House No. 1547-A was allotted to the first floor in which is in possession of defendant No. 1. (g) Since the completion of construction of suit structure, the plaintiff is in possession of the suit structure, which is having separate electric meter as well as water connection. (j) The defendant No. 1 never raised objection for grant of separate electric meter or water connection to the suit structure or at the time of mutation in the name of plaintiff. 19. (j) The defendant No. 1 never raised objection for grant of separate electric meter or water connection to the suit structure or at the time of mutation in the name of plaintiff. 19. The Hon'ble the Supreme Court of India in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr., reported in AIR 2012 Supreme Court 206, has held that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. Transactions of nature of 'General Power of Attorney Sales' or 'Sale Agreement/General Power of Attorney/Will transfers' do not convey the title and do not amount to transfer nor can they be recognized or valid modes of transfer of immovable property. 20. The Hon'ble the Supreme Court of India further observes that the Courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53-A of the Transfer of Property Act. The Hon'ble the Supreme Court of India, thus, held that such transactions can not be relied upon or made the basis for mutations in Municipal or Revenue Records. 21. Shri S.P. Kshirsagar, learned counsel for the appellants heavily relied upon the judgment in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr. (supra) in support of his case and submits that both the courts-below committed error in holding the plaintiff as owner of the suit structure by virtue of the agreement (Exh. 28). He, thus, submits that the said findings of both the Courts-below is contrary to the law laid down by the Hon'ble the Supreme Court of India in the said case. 22. The said contention of Shri S.P. Kshirsagar, learned counsel for the appellants can not be accepted and needs to be rejected on the ground that in the said case Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr. (supra) in paragraph Nos. 18 and 19, the Hon'ble the Supreme Court of India has clarified the position that the judgment would not affect the validity of the sale agreements and power of attorney executed in genuine transactions and that the judgment would operate only prospectively. "18. (supra) in paragraph Nos. 18 and 19, the Hon'ble the Supreme Court of India has clarified the position that the judgment would not affect the validity of the sale agreements and power of attorney executed in genuine transactions and that the judgment would operate only prospectively. "18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision. 19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bona fide/genuine transactions." 23. In the present matter, admittedly, the agreement the (Exh. 28) is dated 18 December, 1989 and it was duly registered on rd 03 February, 1990. Our observations regarding 'SA/GPA/WILL transactions' are not intended to apply to such bona fide/genuine transactions." 23. In the present matter, admittedly, the agreement the (Exh. 28) is dated 18 December, 1989 and it was duly registered on rd 03 February, 1990. Thus, in view of the fact that the Hon'ble the Supreme Court of India has stated in the said judgment that the observations made by the Court are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions, I am of the view that agreement (Exh. 28) executed by the defendant No. 1 in favour of the appellants is a genuine transaction executed years before the judgment of the Hon'ble the Supreme Court of India in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr. (supra). 24. In the aforesaid backdrop of admitted facts that the plaintiff is in possession of the suit structure which is having separate House Number allotted by the Municipal Corporation, which is also having separate electric meter and water connection and to which the defendant No. 1 never raised any objection at any time, are sufficient to hold that the transaction was genuine transaction and therefore, to the said transaction the judgment in the case of Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr. (supra) will not apply, as the operation of the said judgment is prospective. 25. Shri Harkare, learned counsel for the plaintiff has placed reliance on the judgment of the Hon'ble the Supreme Court of India in the case of Javer Chand and Ors. v. Pukhraj Surana, reported in AIR 1961 Supreme Court 1655. In the said judgment, the Hon'ble the Supreme Court of India has observed that where a question as to the admissibility of a document is raised on the ground that it has not been stamped and has not be property stamped, the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Hon'ble the Supreme Court of India further observes that the Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. The Hon'ble the Supreme Court of India further observes that the Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. Once a document has been marked as an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, it is not open either to the trial Court itself or to the Court of Appeal or Revision to go behind that order. 26. In view of the aforesaid settled law, objection to the admissibility of agreement (Exh. 28) on the ground that it has not been properly stamped, is not now open for this Court to go into the same, as at the time of exhibiting the said document no objection was raised by defendant No. 1. 27. Both the Courts-below have concurrently held that the plaintiff has constructed the structure in question and he is the owner of the said super structure upon the ground floor. The said concurrent findings given by both the Courts are based on proper appropriation of documentary as well as oral evidence available on record and therefore, it can not be said that the said findings are perversed or without any evidence. In the circumstances, I am of the firm view that there is no merit in the present appeal and in view of the discussions made herein above, I answer the substantial question of law in negative. 28. In view of the observations made above, the judgments cited by Shri Kshirsagar, learned counsel for the appellants in the case of Hausu Dhondba Uike and another v. Sahebrao Chintaman Salam and another (supra), Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others (supra) and Ramswaroop (Dead), through Legal Representatives v. State of M.P. (supra) are of no help to the appellants. 29. Accordingly, the present appeal is dismissed and no order as to costs.