A plaintiff cannot establish ownership of immovable property without a registered deed, even if in physical possession, as per Sections 54 of the Transfer of Property Act and Section 34 of the Specific Relief Act.

JUDGMENT :

Bhaskar Raj Pradhan, J.

The learned District Judge vide the impugned judgment and decree declared the respondent no.1 (the plaintiff) the owner of the suit land and that he was in possession thereof, when admittedly, the suit land had not been transferred and mutated in the plaintiff's name. The suit land was admittedly owned by late Sarita Thapa – the mother of the appellant (the defendant no.1). The plaintiff had claimed to be the owner of the suit land based on an oral “family arrangement” between him and late Sarita Thapa, whereby he had lent Rs.4,00,000/- to her and she had handed over the original Sale Deed (exhibit-P6) of the suit land owned by her, to his wife.

2. The defendant no.1 is not satisfied with the impugned judgment. Mr. Tej Bahadur Thapa, learned Senior Advocate for the defendant no.1, has advanced extensive arguments both on facts and law. According to him, the impugned judgment is unsustainable. It is his case that the averments in the plaint are bereft of any documentary or unimpeachable oral evidence. The evidence led by the plaintiff is beyond the pleadings and contradictory thereto. The plaintiff has made improvements and embellishments to his case. The burden of proof upon the plaintiff has not been discharged. There is variance between his pleadings and proof. He drew attention of this Court to sections 59 to 74 of the Indian EVIDENCE ACT , 1872. He also drew attention of this Court to Article 54, 58 and 65 of the Schedule to the LIMITATION ACT , 1963. He emphasised on the relevance of section 34 of the SPECIFIC RELIEF ACT , 1963. According to the learned Senior Counsel, the suit was also undervalued and barred by law under Order VII Rule 11 read with section 151 of the Code of Civil Procedure, 1908. He relied upon Smriti Debbarma (Dead) Through Legal Representative v. Prabha Ranjan Debbarma and others, [2023 SCC OnLine SC 9], Vijay vs. Union of India and others , 2023 INSC 1030,Madholal Sindhu v. Asian Assurance Co. Ltd. & others, 1945 SCC OnLine Bom 44/ AIR 1954 BOM 305;Om Prakash Berlia & Another v. Unit Trust of India & others, 1982 SCC OnLine Bom 148 / AIR 1983 BOM 1;Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656 , Pankajakshy v. Devaki Ramakrishnan , AIR 2011 Ker 30 , Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148 , Ouseph Varghese v. Joseph Aley & others, (1969) 2 SCC 539 , Union of India v. Vasavi Co-op. Housing Society Ltd. & others, (2014) 2 SCC 269 .

3. In Smriti Debbarma (supra), the Supreme Court opined that burden lies on the party who asserts the existence of a particular state of things on the basis of which the relief is claimed as mandated in terms of section 101 of the EVIDENCE ACT , 1872 which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. In terms of section 102, if both parties fail to adduce evidence, the suit must fail.

4. In Vijay (supra), the Supreme Court held that the law laid down by it in Suraj Lamp (supra) was considered in several judgments without any change and recently restated in Munishamappa vs. M. Rama Reddy & Others, Civil appeal no.10327 of 2011. In Suraj Lamp (supra), the Supreme Court held that a transfer of immoveable property by way of sale can only be by a deed of conveyance and in the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. According to the Transfer of Property Act, 1882, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the Transfer of the Property Act, 1882 enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or chargeon its subject matter.

5. Questioning the birth certificate (exhibit-P29) of the child of Yangchen Dolma Rinzing (PW-2), the learned Senior counsel