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2023 DIGILAW 213 (UTT)

Ghamand Singh v. Inder Singh

2023-03-01

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Before this Court ventures to deal with the arguments extended by the learned counsel for the appellants, in relation to the substantial questions of law, which has been raised by him in the present Second Appeal, it becomes inevitable for this Court to deal with the pleading, which had been raised by the respondents herein in Civil Suit No. 92 of 2012, Inder Singh and Another vs. Ghamand Singh and Others, as it stood instituted before the Court of Civil Judge (Senior Division), Rishikesh, District Dehradun. 2. The Suit, as instituted before the Court of Civil Judge (Senior Division), Rishikesh, District Dehradun, on 13.07.2012, it was in relation to the property, which was described therein at the foot of the plaint, lying in Khata No. 57, khasra No. 1208 having a total area of 0.026 hectares and khata No. 48 khasra No. 182 (kha) having an area of 0.0360 hectares, lying in Village Jolly Grant, Baruwala, District Dehradun (hereinafter to be called as “property in dispute”). 3. As a consequence of the institution of the Suit in question on 13.07.2022, the plaintiffs, who are the real brothers have filed the suit for the grant of permanent injunction, restraining the defendants therein, not to interfere over the property, as described at the foot of the plaint and further a decree was sought for ejectment and recovery of possession in favor of the plaintiffs, as against the defendants or from any persons who were claiming under them. The relief as sought in the plaint is extracted hereunder: “Plaintiff prays as follows: (i) A decree of perpetual injunction be issued restraining the Defendants and all persons claiming through or under him not to interfere over the open land of the Plaintiffs to the suit property in Plaint. (ii) A decree of ejectment and recovery of possession be issued in favour of Plaintiffs and against the Defendants directing the Defendants and all persons claiming through or under them to deliver the possession of the Shops in suit to the Plaintiff and if Defendants fail to deliver the possession the same may be delivered by the Court at the expenses of the Defendants. (iii) Cost of the suit be awarded in favour of the Plaintiff and against the Defendant. (iii) Cost of the suit be awarded in favour of the Plaintiff and against the Defendant. (iv) Any other relief which the learned court deems fit and proper under the facts and circumstances of the case be also be awarded in favour of the Plaintiff and against the Defendant.” 4. The suit proceeded on merits and the defendants upon being noticed had filed their written statement being paper No. 12(kha) and they have denied the plaintiffs contentions and particularly, so far as the averments made in Para 4 of the plaint, which has been answered in the written statement in Para 7 of the written statement, with regards to the effect of the unregistered agreement dated 09.05.1994, which in fact was the foundation of the suit in question in relation to the property in dispute, for claiming their right as claimed in the suit based on an unregistered agreement dated 09.05.1994. 5. The plaintiffs have admittedly come up with the case in the plaint, that the defendants have already instituted a Suit, being Suit No. 337 of 2007, Ghamand Singh and Others vs. Inder Singh and Another, before the Court of Civil Judge (Junior Division), Dehradun and the said suit, a decree was sought for specific performance of an unregistered agreement for sale dated 09.05.1994 and the said suit, after its decision, which was rendered on 18.05.2012, the suit of the defendants/appellants for specific performance of an unregistered agreement for sale has been rejected. 6. Upon rejection of the plaint, the plaintiffs appellants herein, had filed a Civil Appeal, being Civil Appeal No. 61 of 2012, in which it has been pleaded in the Second Appeal without giving the details in pleadings as to what consequences did the civil appeal reached, though during the course of argument of the Second Appeal, it has been argued by the learned counsel for the appellants that the Civil Appeal No. 61 of 2012, is still pending consideration. After its remand, the Civil Appeal No. 61 of 2012 was re-numbered as Civil Appeal No. 94 of 2019, Ghamand Singh and Others vs. Inder Singh and Another. Meaning thereby, the defendants/appellants’ rights based on an unregistered agreement for sale dated 09.05.1994, is yet to crystallized by its adjudication on merits. 7. After its remand, the Civil Appeal No. 61 of 2012 was re-numbered as Civil Appeal No. 94 of 2019, Ghamand Singh and Others vs. Inder Singh and Another. Meaning thereby, the defendants/appellants’ rights based on an unregistered agreement for sale dated 09.05.1994, is yet to crystallized by its adjudication on merits. 7. So far as the said suit for specific performance is concerned, which was for the purposes of a suit for specific performance of unregistered agreement for sale dated 09.05.1994, that may not have any bearing effect, so far as the claim by the plaintiffs appellants herein relates to a grant of decree of perpetual injunction in relation to the property in dispute and a decree for ejectment. 8. The suit in question of the plaintiffs/respondents was decided by the Court of Civil Judge (Senior Division), vide its judgment dated 06.03.2021, whereby the suit of the plaintiffs/respondents was dismissed. In the said suit, the impact of Section 53A of the Transfer of Property Act was considered while deciding issue Nos. 1, 2, 3, the relevant part is extracted hereunder: 9. Aggrieved against the said judgment dated 06.03.2022 of Suit No. 92 of 2012, a Civil Appeal No. 39 of 2021, Inder Singh and Another vs. Ghamand Singh and Others, was preferred before the Court of 1st Additional District & Sessions Judge, Rishikesh, District Dehradun, and the said Second Appeal, as preferred by the plaintiffs was dismissed by the impugned judgment dated 30.01.2023, which is under challenge in the present Second Appeal. 10. Learned counsel for the appellants, while putting a challenge to the impugned judgment of the appellate Court of allowing the appeal have formulated a question, but has primarily raising his contentions with regard to i.e. as a consequence of unregistered agreement for sale dated 09.05.1994, in fact, the right would be maturing in his favour over the property in view of the provisions contained under Section 53A of Transfer of Property Act, 1882. His contention is that the amendment made under Section 53A of the Transfer of Property Act, will only come into play and the necessity of registration would only be enforced w.e.f. 24.09.2001, as it has been enforced by the Act No. 48 of 2001, as to whether the agreement executed on 09.05.1994 was rightly held to be inadmissible in evidence. 11. 11. Though there had been number of substantial questions, which have been framed by the learned counsel for the appellants, which are extracted hereunder: “SUBSTANTIAL QUESTIONS OF LAW: (A) An agreement for sale for the purposes of section 53A of Transfer of Property Act, on being mandatorily required to be registered only w.e.f. 24-9-2001 i.e. coming into force of provisions of The Registration and other related laws (amendment) Act 2001 (Act No. 48 of 2001), whether agreement executed on 09-05-1994 was rightly held to be inadmissible in evidence by learned Lower Appellate Court ignoring section 12 of Act no. 48 of 2001. (B) Whether in the absence of any evidence adduced by plaintiffs on record that defendants had been their licensee, the impugned judgment could sustain being perverse and based on no evidence. (C) Whether learned lower appellate court was justified in shifting burden of proof upon defendants about their possession on suit property on the basis of agreement dated 09-05-1994 and perversely concluded that agreement dated 09-05-1994 cannot be said to be proved in evidence. (D) Whether in the absence of any ground raised by plaintiffs/respondents in memo of Civil Appeal No. 39 of 2021 questioning the findings on issue no. 8 with respect to undervaluation and insufficiency of court fee recorded by learned trial court, learned appellate court was justified in observing that the valuation of the suit is proper and in granting the relief to plaintiffs/respondents. (E) Whether learned lower appellate court was justified in allowing the appeal filed by plaintiffs/respondents without reversing and upsetting the findings recorded by learned trial court on issue no. 1, 2 & 3. (F) Whether judgment of learned lower appellate court is in conformity with the spirit of Order 41 Rule 31 CPC without discussing and appreciating the entire pleadings and evidence independently and recording its conclusion on the issues involved independently. (G) Whether once the controversy relating to specific performance of contract in the nature of civil appeal no. 94 of 2019 being continuation of OS No. 337 of 2007 was pending, the impugned judgment directing the defendants to deliver the possession of the property in question to plaintiffs could have been passed.” 12. (G) Whether once the controversy relating to specific performance of contract in the nature of civil appeal no. 94 of 2019 being continuation of OS No. 337 of 2007 was pending, the impugned judgment directing the defendants to deliver the possession of the property in question to plaintiffs could have been passed.” 12. But the only argument which has been extended by him is in relation to the substantial question ‘A’, which is extracted hereunder: “(A) An agreement for sale for the purposes of section 53A of Transfer of Property Act, on being mandatorily required to be registered only w.e.f. 24.09.2001 i.e. coming into force of provisions of The Registration and other related laws (amendment) Act 2001 (Act No. 48 of 2001), whether agreement executed on 09.05.1994 was rightly held to be inadmissible in evidence by learned Lower Appellate Court ignoring section 12 of Act no. 48 of 2001.” 13. 48 of 2001.” 13. The argument which had been extended by the learned counsel for the appellant with regards to the implications of Section 53A of the Transfer of Property Act, with regard to existing of a document and it being registered in view of the amendment made by the Amending Act No. 48 of 2001 w.e.f. 24.09.2001, this Court is of the view, that the said amendment made under the provisions contained under Section 53A of Transfer of Property Act, will itself not attach any genuineness to an unregistered agreement of sale dated 09.05.1994 and the reasons behind it is, that the amendment made under the Transfer of Property Act under Section 53A, cannot be read in isolation, to the provisions contained under Section 49 of the Registration Act because in the absence of there being a corresponding amendment made under Section 49 of the Transfer of Property Act, that so far as the unregistered agreement for sale in relation to an immovable property is concerned, the same being in violation of provisions contained under Section 17 of the Registration Act, as document was mandatorily required to be registered, no right, as such, would be created nor the said document could be read for the purposes of establishment of any right in a civil proceedings, including the claim by way of grant of decree of mandatory injunction as claimed for in the present suit filed by the appellants herein, more particularly, when the appeal arising from Suit of specific performance is still pending consideration, and rights flowing from unregistered agreement for sale is yet to be decided on merits. 14. Even for the time being, if the provisions contained under Section 49 of the Registration Act is ignored to be taken into consideration, the fact remained would be, that the document dated 09.05.1994, which is the foundation of claim of the appellants herein, will not be sustainable to be read in evidence for the reasons being that the said document since was observed and recorded to be an undervalued document, the same couldn’t have been read in evidence in the light of the provisions contained under Sections 33 to be read with Sections 35 & 36 of the Stamps Act. 15. 15. This is the principle, which has been enunciated and considered by the Courts below also on the basis of ratio laid in the judgment rendered by the Hon’ble Apex Court, as reported in Avinash Kumar Chauhan vs. Vijay Krishna Mishra, 2009 (2) SCC 532 that a document, in case, if it is creating any right in relation to an immovable property, if it is under stamped, it will be inadmissible in evidence because of the insufficiency of the stamp or for any collateral purposes as per the provisions contained under Section 35. The relative observations had been made by the Hon’ble Apex Court, as contained in its Para 24 & 25 of the said judgment, are extracted hereunder: 24. In the present case, by reason of the statutory interdict, no transfer at all is permissible. Even transfer of possession is also not permissible. [See Pandey Oraon vs. Ram Chander Sahu, 1992 Supp. (2) SCC 77 and Amrendra Pratap Singh vs. Tej Bahadur Prajapati and Others, (2004) 10 SCC 65 ]. The Registration Act, 1908 provides for such a contingency in terms of the proviso appended to Section 49 thereof, which reads as 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, 1882 (4 of 1882), to be registered shall: (a) affect any immovable property comprised therein. (b) confer any power to adopt. (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.” 25. Section 35 of the Act, however, rules out applicability of such provision as it is categorically provided therein that a document of this nature shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes. 16. If all purposes for which the document is sought to be brought in evidence are excluded, we fail to see any reason as to how the document would be admissible for collateral purposes. 16. The only question, which has been argued by the learned counsel for the appellants, in relation to the impact of the amendment under the Transfer of Property Act by way of Act No. 48 of 2001, having been brought into effect w.e.f. 24.09.2001, in the absence of there being any corresponding amendment made under the provisions of Registration Act and that of the Indian Stamps Act, 1899, the exclusive argument in relation to Section 53A of the Transfer Property Act, will not be applicable and hence the Second Appeal doesn’t contains any substantial question of law, which is required to be answered and particularly, in the light of the fact, that the learned counsel for the appellant, though has framed number of substantial questions of law, but the only stress, which has been given by the learned counsel for the appellant is in relation to substantial question ‘A’ which has been answered against him. No other question was pressed by the appellants counsel. 17. Consequently, the Second Appeal fails and the same is, accordingly, dismissed.