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2021 DIGILAW 231 (JK)

Mushtaq Ahmad Bahadur v. Chesfeed Ahmad Bahadur

2021-05-18

DHIRAJ SINGH THAKUR

body2021
JUDGMENT : CAV No. 322/2021 Caveat stands discharged. CM(M) No. 79/2021 1. The present petition has been filed in the supervisory jurisdiction of this Court under Article 227 of the Constitution of India against the judgment and order dated 06.03.2021 passed in appeal preferred by the respondent before the court of Additional District Judge, Budgam. Briefly stated the material facts are as under:- 2. The petitioner No. 1 and the respondent are real brothers. The admitted case is that a plot of land measuring 01 kanal and 01 marla under Khasra No. 116 came to be purchased jointly by the said parties in the year 1995, over which they constructed a house identified as House No. 13, Hill View Colony, Rawalpora. 3. A deed dated 25.04.2017 came to be executed by the respondent/plaintiff, wherein the respondent/plaintiff declared that he had received an amount of Rs.8 lacs from the petitioner No. 1/defendant as an advance payment on account of sale of his one half share in the joint house comprising of 01 kanal and 01 marla land and two storied house with attic. The respondent/plaintiff further declared in the said suit that the balance amount of Rs.67 lacs would be paid to the respondent/plaintiff by or before December, 2017, which could be extended to June, 2018. It appears that an amount of Rs. 67 lacs was paid to the respondent/plaintiff through bank transaction on 07.04.2018 pursuant to an agreement arrived at between the parties. 4. Subsequently, a sale deed dated 26.03.2018 came to be executed between the respondent and the petitioner No.1, whereby the vendee/respondent herein sold land measuring ten and a half marlas falling under Khasra No. 116, which forms the subject matter of dispute in favour of the petitioner No. 1 for a total sale consideration of Rs.14,17,500/-. The deed also specifically stated that the vendor had put the vendee into actual physical possession of the property and that henceforth the vendee i.e. the petitioner No. 1 herein would peacefully and quietly enjoy all rights as owner in possession of the demised property. 5. In the aforementioned background, a civil suit for permanent injunction came to be filed by the respondent/plaintiff, wherein it was alleged that the plaintiff had agreed to sell his portion of the land measuring ten and a half marla falling under Khasra No. 116 for a consideration of Rs. 5. In the aforementioned background, a civil suit for permanent injunction came to be filed by the respondent/plaintiff, wherein it was alleged that the plaintiff had agreed to sell his portion of the land measuring ten and a half marla falling under Khasra No. 116 for a consideration of Rs. 80 lacs, out of which an amount of Rs. 75 lacs had been paid and by way of cheque, for which a sale deed had been executed in favour of the petitioner No. 1/defendant. It was further alleged that the parties had agreed that as and when the defendant was able to arrange the balance amount at the prevailing market rate in regard to the house in question, the defendant could purchase his share of the house. The respondent/plaintiff had claimed in the plaint that he was residing in the said property as a lawful owner and was in possession. 6. The suit was filed in the court of learned Munsiff, Chadoora, who by virtue of order dated 29.06.2020, as an ad-interim measure restrained temporarily the defendants/petitioners herein from causing any interference with the property in question and from raising any construction over the disputed property. Subsequently however, the said order was vacated by virtue of order dated 31.12.2020. The learned Munsiff, Chadoora in his order held that the suit property, which included the share of the plaintiff, had already been sold off by the plaintiff himself in the year 2018. It was held that the plaintiff had infact admitted to receiving an amount of Rs.75 lacs from defendant No. 1 and that an amount of Rs.14,17,500/-was reflected in the sale deed dated 26.03.2018. It was held that the said amount was in regard to the entire share of the plaintiffs property, i.e. the land as also the house constructed over it. It was also held that the house could not exist without the land underneath and could not have been sold separately or in piecemeal. In regard to the electricity bills, the trial Court held that the said documents did not create or extinguish the rights of the person in the immoveable property on its own and therefore, were of not much consequence. 7. In regard to the electricity bills, the trial Court held that the said documents did not create or extinguish the rights of the person in the immoveable property on its own and therefore, were of not much consequence. 7. By virtue of judgment and order impugned dated 06.03.2021 passed in appeal, the order passed by the trial Court dated 31.12.2020 was set aside and the interim injunction granted by the trial Court vide order dated 29.06.2020 made absolute. On a perusal of the order impugned, passed by the learned Additional District Judge, Budgam, it can be seen that the appellate Court was convinced with the argument of the appellant/respondent herein that the sale deed dated 26.03.2018 pertained only to the sale of land measuring ten and a half marls and that there was no mention at all about the sale of the plaintiff?s share in the residential house. Based upon this argument and the observations so made in that regard, the appellate Court held that the view expressed by the trial Court that there was no prima-facie case established by the plaintiff was erroneous in law. 8. Heard learned senior counsel for the petitioner as also the respondent-Caveator at length. 9. In the present case, two documents have been relief upon. One, a deed dated 25.04.2017, executed by the respondent/plaintiff and a sale deed 26.03.2018. The deed dated 25.04.2017 clearly reflects that an amount of Rs.8 lacs had been received as an advance on account of sale of one half share in a two storied house with attic constructed over 01 kanal and 01 marla of land. It is also clear that an amount of Rs. 67 lacs was payable to the respondent/plaintiff, which was subsequently paid through bank transactions, which are also on record. A total amount of Rs.75 lacs, therefore, was paid before the execution of the sale deed. Interestingly, only an amount of Rs.14,17,500/-came to be reflected in the sale deed dated 26.03.2018. The said sale deed clearly declares that the land measuring 01 kanal 01 marla was sold in the name of the petitioner No. 1/defendant and possession thereof handed over in regard to the same to the said defendant. 10. Interestingly, only an amount of Rs.14,17,500/-came to be reflected in the sale deed dated 26.03.2018. The said sale deed clearly declares that the land measuring 01 kanal 01 marla was sold in the name of the petitioner No. 1/defendant and possession thereof handed over in regard to the same to the said defendant. 10. The conclusion arrived at by the appellate Court was that the sale dated 26.03.2018 was only in regard to the land and not in regard to the house in question, therefore, injunction could not have been refused to the plaintiff. This view, on the face of it, appears to be legally erroneous. Firstly, for the reason that the sale dated 26.03.2018 ought to have been read in conjunction with the deed dated 25.04.2017, where the intention of the plaintiff to sell even his share in the house in question is clearly evident. Even otherwise, the view expressed by the appellate Court that sale of land would not include the house constructed over it for which a separate sale deed ought to be executed runs contrary to the definition of ‘Land.’ Black’s Law Dictionary defines ‘Land’ as “an immovable and indestructible three dimensional area consisting of a portion of the earth?s surface, the space above and below the surface, and everything growing on or permanently affixed to it”. Section 3(26) of the General Clauses Act, 1897 defines immovable property to include ‘Land,’ benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth. Section 2(6) of the Indian Registration Act, 1908 defines immovable property to include “Land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass”. Section 2(6) of the Indian Registration Act, 1908 defines immovable property to include “Land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass”. Section 3(a) of the State Land Acquisition Act, 1990 (1934 A.D.), defines land thus:- “3 (a) the expression “land” includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.” The definitions above thus signify that if an immovable property in the shape of land ever becomes the subject matter of sale, then the structures permanently embedded or affixed thereon must be deemed to be a part of such immovable property excluding of standing timber, growing crops or grass, which have been excluded from the definition of immovable property in the Transfer of Property Act, 1882. 11. In Jai Singh and others Vs. Municipal Corporation of Delhi and anr, (2010) 9 SCC 385 , it was stated by the Apex Court that the powers under Article 227 of the Constitution of India cannot be exercised like “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. 12. What was held by the Apex Court in Jai Singh’s case (supra) in paragraph 15 is reproduced as under: “15. We have anxiously considered the submissions of the learned counsel. Before we consider the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It can not be exercised like a `bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.” 13. Testing the facts and circumstances of the present case on the touchstone of the law laid down above, it can clearly be seen that the very basis of the appellate Court order that sale deed was only in regard to the land and not the house suffers from a legal perversity, which cannot be upheld. Even when it has been held that the exercise of discretionary powers under Article 227 of the Constitution of India cannot be exercised only because there has been an error of law committed by the Courts below, yet the power is required to be exercised where there has been a mistake in the understanding of the fundamental principles of law. 14. Considering the facts of the present case on the touch stone of the law discussed herein above, in my opinion, the view expressed by the appellate Court is legally unsustainable, contrary to the fundamental principles of law and consequently is set aside and the view expressed by the trial Court vide order dated 31.12.2020 is upheld. 15. Notwithstanding the above, from the facts which had been placed on record, it can be seen that an amount of Rs.75 lacs was already paid to the respondent by the petitioner for the sale of the property in question. As against this an amount of Rs.14,17,500/-only was reflected in the sale deed dated 26.03.2018. 15. Notwithstanding the above, from the facts which had been placed on record, it can be seen that an amount of Rs.75 lacs was already paid to the respondent by the petitioner for the sale of the property in question. As against this an amount of Rs.14,17,500/-only was reflected in the sale deed dated 26.03.2018. The averments made in the pleadings suggest a blatant effort by the parties to avoid stamp-duty, which was otherwise legally payable by the parties in regard to the property in question. Therefore, a copy of the judgment shall be sent to the Divisional Commissioner, Kashmir, who shall forward it to the concerned statutory authority to look into the matter with a view to determine the issue with regard to the evasion of stamp-duty etc and the extent thereof. Besides this, the Court below would also go into the issue of under-valuation of the suit for purposes of Court fee. 16. Disposed of accordingly, along with connected application. Registry is directed to supply a copy of this order to the Divisional Commissioner, Kashmir for compliance.