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RAJWANT versus RAM SUDHI AND OTHERS

High Court of Judicature at Allahabad

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Rajwant v. Ram Sudhi And Others - SECOND APPEAL No. - 2264 of 1979 [2007] RD-AH 15416 (12 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.27

Second Appeal No. 2264 of 1979

Rajwant

Vs.

Ram Sudhi & Others

~~~~~~

Hon. Dilip Gupta, J.

The plaintiff has filed this Second Appeal for setting aside the judgment and decree passed by the learned IV Additional District Judge, Basti by which the Civil Appeal that had been filed by the defendants was allowed and the judgment and decree of the Trial Court was set aside as a result of which the suit was dismissed.

The Original Suit had been filed for injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the disputed plot. It was stated that the plaintiff and defendants reside in the Village Manjharia and the original owner of the land in dispute was Tamesar who had transferred the suit land in favour of one Bhagirathi through an unregistered sale deed dated 22nd May, 1953 for a consideration of Rs.98/- only and eversince then the said Bhagirathi became the owner in possession of the land till his death. After his death the plaintiff, who claims to be the adopted son of Bhagirathi became the successor and the ownership and possession dwelved upon him. It was further stated that the plaintiff has been using the land as the Sehan since long and the land vested with him under Section 9 of the U.P. Zamindari Abolition and Land Reforms Act but as the defendants wanted to dispossess the plaintiff from the land in June 1968, the suit was filed.

The defendants contested the suit on the ground that after the death of Tamesar his sole heir Munesar became the owner of all his properties including the suit land. Munesar executed a registered sale deed in favour of the defendants on 23rd January, 1968 for a consideration of Rs.500/- and since then the defendants are in possession of the said land. The Trial Court framed the following issues :-

"1. Whether plaintiff is the owner of the land in suit? If so, its effect?

2. Whether the sale deed dated 22.5.53 is null and void for the reasons alleged in para 6 of the W.S.?

3. Whether the suit is time barred?

4. Whether the suit is barred by Articles 64 and 65 of the Limitation Act?

5. Whether the defendants are entitled for the benefits under Section 41 of the T.P. Act?

6. Whether the suit is barred by the principles of estoppel?

7. Whether the suit is under valued and the Court fees paid thereon is insufficient?

8. To what relief, if any, is the plaintiff entitled?"

Issue nos. 1, 2 and 5 were decided together. In respect of the ownership of the disputed land, the Trial Court noticed that the claim set up by the plaintiff was on the basis of the unregistered sale deed dated 22nd May, 1953 for a consideration of Rs.98/- only while the defendants claimed ownership on the basis of the registered sale deed dated 23rd January, 1968 for a sum of Rs.500/-. The Trial Court observed that as the deed in respect of the immovable property executed on 22nd May, 1953 was for a consideration of Rs.98/- only, it was not required to be registered under the provisions of Registration Act, 1908. The Trial Court, therefore, took into consideration the aforesaid unregistered sale deed and recorded a finding that the plaintiff was the owner in possession of the property. The Trial Court also observed that the defendants could not acquire any title on the basis of this sale deed dated 23rd January, 1968 as Munesar was not the owner of the property that had been sold by him to the defendants. The Trial Court also observed that from the map which had been filed with the plaint, it was clear that the disputed land lies in front of the plaintiff's house which gave credence to the fact that the land in dispute was the Sehan of the plaintiff. The suit was accordingly decreed.

The defendants filed the Civil Appeal. The Lower Appellate Court, however, discarded the unregistered sale deed dated 22nd May, 1953 on the ground that though the consideration was for Rs.98/- only but since the deed had been executed in writing, it was required to be registered.

At the time of admission of the Second Appeal the following substantial questions of law were framed:-

"a) Whether a sale deed of a value less than 100.00 is a compulsorily registrable document and if not registered whether it could be used as an evidence for collateral purpose or as an evidence of part performance of the contract for purposes of section 53-A of the Transfer of Property Act?

b) Whether the suit of the plaintiff appellant could be not-suited even on the ground that defendants had failed to trace their title from the original tenure-holder of the land in dispute and the plaintiff appellant had proved his possession on the basis of the sale deed of the year 1953 and had made constructions subsequent thereto in part performance?"

I have heard learned counsel for the appellant. No one has appeared on behalf of the respondent even in the revised list.

Learned counsel for the appellant submitted that the view taken by the Lower Appellate Court for discarding the unregistered sale deed is illegal and against the provisions of Sections 17 and 18 of the Registration Act and also against the provisions of Section 54 of the Transfer of Property Act.

In order to appreciate the contentions of the learned counsel for the appellant, it would be necessary to reproduce the relevant provisions of Sections 17 and 18 of the Registration Act as they stood prior to the amendment made by the State of Uttar Pradesh by U.P. Act No.57 of 1976 w.e.f. 1st January, 1977 :-

"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,--

(a) ................................

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

.........................................

.........................................

18. Documents of which registration is optional.--Any of the following documents may be registered under this Act, namely,--

(a) instruments (other than instruments of gifts and wills) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, of a value less than one hundred rupees, to or in immovable property;

........................................."

It was only by the aforesaid U.P. Act No.57 of 1976 that the words "of the value of 100 rupees and upwards" were omitted from Section 17 of the Registration Act. Likewise Clause (1) of Section 18 of the Registration Act was deleted by the aforesaid U.P. Amendment Act.

Section 54 of the Transfer of Property Act, 1882 defines the sale and is 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 revision 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."

A conjoint reading of the provisions of Sections 17 and 18 of the Registration Act as they stood prior to the amendment made in the Uttar Pradesh w.e.f. 1st January, 1977 and Section 54 of the Transfer of Property Act clearly shows that only those deeds in respect of sale of immovable property are required to be registered which are for a consideration of more than Rs.100/-. The Lower Appellate Court was, therefore, not justified in holding that the deed executed on 22nd May, 1953 which was for sale consideration of Rs.98/- only was also required to be registered. If the said sale deed is taken into consideration, then it is clear that Munesar who claimed to inherit the property from Tamesar did not have any right to execute the sale deed dated 23rd January, 1968 as the property had already been sold by Tamesar to Bhagirathi through the unregistered sale deed dated 22nd May, 1953. The Trial Court was, therefore, justified in decreeing the suit.

The judgment and decree of the Lower Appellate Court is, therefore, set aside and that of the Trial Court is restored. The Appeal is, accordingly, allowed.

There shall be no orders as to costs.

Date: 12.9.2007

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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