The legal point established is the inadmissibility of oral evidence against a registered document of title, as per Proviso 4 to Section 92, and the requirement for a written and registered instrument for certain dispositions of property.

NAJMI WAZIRI, J

1. This second Appeal impugns an order dated 03.01.2018 passed by the learned ASCJ in RCA No. 18/2016 which allowed the respondents’ appeal against the judgment and decree dated 20.12.2014 in Suit No. 313 of 2014, a suit for mandatory injunction. The appellant contends that he is the owner of the property – C-57, Shiv Gali, Nanak Chand Basti, Kotla Mubarakpur, New Delhi (referred to as ‘suit property’) by way of a family settlement but the impugned order has recorded that the plaintiff has proven his right, title and interest to the property by way of a registered Sale Deed of 1966.

2. The impugned order considered the judgment of this Court in Karan Madaan & Ors v. Nageshwar Pandey 2014 (3) CLJ 589 DEL which held that when a registered document of title exists, oral evidence denouncing the same would be inadmissible. It was held:

“41. Proviso 4 to Section 92 permits the establishment of the existence of any "distinct, subsequent oral agreement to rescind or modify" the contract, grant or disposition of property, except in cases in which such contract, grant or disposition of property is required, by law, to be in writing, or has been registered as per the law for the time being as to registration of documents.

42. In the present case, the disposition of the suit property was required by law to be in writing and by a registered instrument, and it has been so executed in writing and registered. Proviso 4, therefore, cannot be invoked by the defendant, in any case. Moreover, the defendant is not claiming a "subsequent" oral agreement. He is claiming an oral agreement/understanding which, according to him, existed at the time of execution of the sale deed. Consequently, Proviso 4 has no application to the defence/ case set up by the defendant. Provisos 5 & 6 have no application to the facts of the present case, as the defendant does not plead any custom, or any issue with regard to the language used.”

3. In view of the aforesaid, the contentions of the appellant are that an oral settlement partitioning the family property i.e. the aforementioned suit property and another property bearing no. C-93, Shiv Gali, Nanak Chand Basti, Kotla Mubarakpur, New Delhi, between the brothers is untenable.

4. It is also not in dispute that the first suit filed by the respondent (plaintiff) in the year 2007 had sought a mandatory injunction against the appellant from creating any third party right or interest in the suit property, interim injunction had been granted. The suit is still pending for disposal. A second suit bearing no. 315/2007 was filed by the same plaintiff against the same defendant/present appellant, seeking demolition of the unauthorised construction in the suit property carried out by the appellant. This second suit was dismissed on the ground that, at the time the construction was being undertaken, the plaintiff had not made any complaint either to the police or to the municipal authority or to any other competent statutory body, therefore, the Trial Court concluded that there was an element of acquiescence in the plaintiff not taking immediate steps, against the said construction in the rear portion of the suit property, as well as on the First Floor. It held:

“Now coming to the second aspect whether plaintiff has proved or established that the illegal or unauthorised construction carried out in the suit property by the defendants. Nothing on record suggest that plaintiff has filed any written complaint to the police or to the MCD qua the raising of unauthorised structure by the defendants at the suit property. Admittedly no legal notice or any kind of caution notice have been issued by the plaintiff to the defendants asking them to restrain from carrying illegal and unauthorised construction at any point of time. No witness from the MCD or any other competent authority has been called or examined by the plaintiff to prove whether there is any illegal or unauthorised construction existed at the suit property