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1998 Supreme(Mad) 1734
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Kanraj C. Shah
Versus
R. Thangaraj & Another
C.R.P. No. 3431 of 1998 & C.M.P. No. 17177 of 1998
Decided On :Decided on : 22-12-1998
For the Petitioner:R. Narasimhan for A.K. Parthasarathy, Advocates.
For the Respondents:M.V. Krishnan, Advocate.
An unregistered sale deed can be admitted in evidence for a collateral purpose, such as to prove possession or adverse possession.
Headnote:
REGISTRATION ACT - SECTION 49 - UNREGISTERED SALE DEED - ADMISSIBILITY IN EVIDENCE - COLLATERAL PURPOSE - POSSESSION - ADVERSE POSSESSION - TRANSFER OF PROPERTY ACT - SECTION 53-A - DUTY OF VENDOR TO PRODUCE INCOME-TAX CLEARANCE CERTIFICATE - PURCHASER'S RIGHT TO CONTINUE POSSESSION AND DEFEND POSSESSION - BREACH BY VENDOR.
Fact of the Case:
Plaintiff filed a suit for declaration of title and consequential relief of permanent injunction restraining defendants from interfering with his possession of the suit property. Defendant claimed title to the property based on an unregistered sale deed dated 30.1.1981 and possession handed over to him. The lower court allowed the document to be marked as evidence for collateral purposes.
Finding of the Court:
The court held that the impugned order allowing the unregistered sale deed to be marked as evidence was liable to be interfered with. The court found that the defendant had a definite case that possession passed on the basis of the sale deed and that the document could not be registered due to the vendor's failure to produce an Income-Tax Clearance Certificate. The court also noted that the defendant had a case of adverse possession since the suit was not filed within 12 years.
Issues: 1. Whether an unregistered sale deed can be admitted in evidence for collateral purposes? 2. Whether the defendant had a case of adverse possession?
Ratio Decidendi: 1. An unregistered sale deed is admissible in evidence for a collateral purpose, that is, for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. 2. Adverse possession can be established if the possession is open, notorious, exclusive, hostile, and continuous for a period of 12 years.
Final Decision: The court allowed the civil revision petition and set aside the impugned order. The court directed the respondent to take necessary plea under Section 53-A of the Transfer of Property Act and consider the matter afresh if an amendment application is filed.
1. Plaintiff in O.S. 651 of 1993 on the fde of II Additional District Munsif Court, Dindugul is the Revision Petitioner herein.
2. The suit was filed for declaration of title. Plaintiff is the owner of ‘A’ Schedule properties. Plaintiff also sought for consequential relief of permanent injunction restraining defendants, their men and servants from in any way interfering with the peaceful possession and enjoyment of plaintiff over the suit property and for mandatory injunction directing first defendant to remove the superstructures over the suit ‘B’ Schedule property and for other reliefs.
3. According to the petitioner, he has obtained title to the ‘A’ Schedule properties as per Sale Deed dated 7.11.1977 and ever since, he is in absolute possession and enjoyment of the properties. Patta is also transferred in his name and he is paying property tax also. According to petitioner, his properties are managed by his power agent one Dhanraj Shah. Since there was mismanagement by him, petitioner has cancelled the said power as per document dated 23.6.1986 and plaintiff is looking after the properties through another agent K.A. Perumalsamy. It is said that with the connivance of the ex-power agent, first respondent made encroachments in a portion of the suit properties and put up constructions thereon. Plaintiff came to know about the encroachment and construction and demanded first respondent to vacate ‘B’ Schedule property and to hand over possession after removing the structure. He did not do so which necessitated filing of the suit.
4. In the written statement filed by defendant, he said that ‘A’ and ‘B’ Schedule properties were obtained by him as per Sale Deed dated 30.1.1981 and the same is duly registered with the concerned Sub-Registrars office. Eversince the date of Sale deed, he is in possession and enjoyment of the properties and plaintiff is not entitled to claim any portion of the property.
5. The petitioner is aggrieved by the order passed by lower Court. During the examination of defendant, he wanted to mark the sale deed dated 30.1.1981 which according to him is registered sale deed for Rs. 40,000/-. When he was examined in chief, he said that he had purchased the property as per Ex. B.1. An objection was raised at that time that the document has not been registered and therefore, inadmissible in evidence. When the parties raised objection regarding admissibility of the document. Sower Court passed separate order on the same and allowed the document to be marked. The same is challenged under Article 227 of the Constitution of India.
6. When the matter came up for admission, I ordered notice of motion and further proceedings in the lower Court was stayed. After respondent entered appearance, entire matter was heard.
7. A Counter affidavit has been filed by the respondent wherein it is said that he has taken two sale deeds from the power agent of the Plaintiff on 30.1.1981 for Rs. 45.000/- and Rs. 40,000/- and as per the recitals in the documents possession was also handed over to him. It is also stated that he had built a house spending more than a lakh of rupees and sale deed was also duly executed after receiving power of attorney. The document is also attested by the Sub-Registrar. The document was returned solely due to the fact that the provisions of Section 230A of the Income-Tax Act regarding Income Tax clearance was not obtained by the Vendors power agent who promised to produce the same but not produced it. Only because of the fraud committed by the Plaintiffs agent the document could not be registered. When plaintiffs agent has received the consideration and also handed over possession he cannot repudiate the transaction and to prove the factum of possession document can be marked. That is only for collateral purposes and not to prove the sale itself. It is said that in the impugned order all these aspects were considered and there is no ground for interference under Article 227 of the Constitution o
