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IN THE HIGH COURT OF ALLAHABAD
B. L. YADAV
HAMIDA - Appellant
Versus
HUMER - Respondents
S. A. 1715 Of 1981
Decided On : 08/06/1992
REGISTRATION ACT - SECTION 17 - TRANSFER OF PROPERTY ACT - SECTION 53-A - INTERPRETATION - ORAL EVIDENCE - APPRECIATION - APPELLATE COURT'S POWER - SUBSTANTIAL QUESTION OF LAW - SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
Plaintiff filed a suit for permanent injunction restraining the defendants from interfering with her peaceful possession of a plot of land. The plaintiff claimed title to the land based on a sale deed dated 7-8-1969. The defendants denied the plaintiff's possession and claimed that they were entitled to protect their possession based on an agreement deed dated 22-3-75.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, holding that the sale deed in her favor was legal and proved according to law, and that the agreement deed in favor of the defendants was not registered and could not be read in evidence. The lower appellate court reversed the trial court's decision, holding that the agreement deed, though not registered, could be read in evidence for collateral purposes and that the defendants were entitled to the benefit of Section 53-A of the Transfer of Property Act.
Issues: 1. Whether the agreement deed dated 22-3-75, though not registered, could be read in evidence for collateral purposes? 2. Whether the defendants were entitled to the benefit of Section 53-A of the Transfer of Property Act? 3. Whether the lower appellate court could set aside the findings of the trial court based on appreciation of oral evidence without holding that the trial court had escaped certain special features of the witnesses? 4. Whether the appeal involved a substantial question of law justifying interference by the High Court under Section 100 of the Code of Civil Procedure, 1908?
Ratio Decidendi: 1. The purpose of registration is to secure that every person dealing with property may rely with confidence on the statement contained in the Register of registration as a full and complete account of all transactions by which title may be effected. 2. Section 17 of the Registration Act is a disabling provision and must be strictly construed. Unless a document is brought within the ambit of the section itself, non-registration cannot be a bar to its being admitted in evidence. 3. Where a document purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest of the value of Rs. 100.00 or upwards in immovable property, registration is compulsory under Section 17(1)(b) of the Registration Act. 4. The agreement deed dated 22-3-75, which purported to create new rights in favor of the defendants, was required to be registered under Section 17 of the Registration Act and could not be read in evidence since it was not registered. 5. The defendants were not entitled to the benefit of Section 53-A of the Transfer of Property Act as the conditions for its application were not fulfilled, including the fact that the agreement deed was not proved to have been executed by the plaintiff and her thumb impression on the document was denied. 6. The lower appellate court erred in setting aside the findings of the trial court based on appreciation of oral evidence without holding that the trial court had escaped certain special features of the witnesses. 7. The appeal involved substantial questions of law, including the correct interpretation of Sections 17 and 49 of the Registration Act, the applicability of Section 53-A of the Transfer of Property Act, and the power of the lower appellate court to set aside the findings of the trial court based on appreciation of oral evidence.
Final Decision: The High Court allowed the plaintiff's appeal, set aside the judgment and decree of the lower appellate court, and restored the judgment and decree of the trial court, decreeing the suit in favor of the plaintiff with costs throughout.
( 1 ) THIS is the plaintiffs Second Appeal under Section 100 of the Code of Civil Procedure, 1908, (for short the Code), in a suit for permanent injunction restraining the defendant respondents from interfering with peaceful possession of the plaintiff over plot No. 103 measuring 0. 72 acre situated in village Tanda, Tahsil Suar, district Rampur.
( 2 ) THE case of the plaintiff appellant was that she is the Bhumidhar in possession on the basis of sale deed dated 7-8-1969 executed by Smt. Fatma in her favour. She has constructed a pucca / house on a part of it and has laid foundation on a different part and remaining part of the land is used for agricultural purpose. The plaintiff is in exclusive possession, but the defendants, without any right are trying to interfere with her possession. Hence the suit was filed.
( 3 ) THE defence was total denial of the plaint allegations. It was alleged that the plaintiff was not in possession. The land was valued more than Rs. one lakh. A deed was executed on 22-3-75 by the plaintiff in favour of defendants. The plaintiff had put her thumb impression on the same. There was another admission of plaintiff dated 4-9-78; and that the sale deed in favour of plaintiff dated 7-8-1969 was fraudulent and that the plaintiff has no title and the defendants were entitled to protect their possession.
( 4 ) THE trial court decreed the suit holding that on the basis of documentary evidence, including extracts of Khasra and Khatauni, Exts. 2 and 3, land revenue receipts statements of P. Ws. particularly P. Ws. Bheem Sen and Bhagwan Das and the Handwriting and Finger Print Expert examined in support of plaintiffs case, her title and possession was proved. Surprisingly enough the defendants respondents did not cross-examine the witnesses examined by the plaintiff. The statements of P. Ws. thus remained unchallenged. The sale deed dated 7-8-69 in favour of plaintiff was held to be legal and was proved according to law; and that the execution of deed of agreement dated 22-3-75 in favour of defendants was not proved; and that the defence witnesses were unreliable; that the agreement deed dated 22-3-75 in favour of defendants was not registered, hence it could not be read in evidence in view of Section 17 of the Indian Registration Act, (for short the Act), and the alleged agreements (Papers 123ga, 124-and 125-Ga) were fictitious and fabricated.
( 5 ) THE defendants preferred appeal before the lower appellate court, which was allowed by judgment and decree dated 22-5-81. The present appeal has been filed by the plaintiff against the decree of the lower appellate court.
( 6 ) SRI A. N. Bhargava, learned counsel for the appellant urged that the documents pertaining to agreements dated 22-3-75 (papers 123-Ga, 124 and 125-Ba) were not registered, even though they purported or operated to create, declare, assign, limit or extinguish the title or interest and the value of property was more than Rs. 100. 00, hence unless it was registered under Section 17 of the Act, the same could not be read in evidence, and the defendants were not entitled to the protection of Section 53-A of the Transfer of Property Act, and that the documents in their favour was not proved, nor the same was in the form of contract as contemplated by Section 53-A of the Transfer of Property Act and the findings about possession recorded by the lower appellate court were based on no evidence and that the lower appellate court could not act as an expert for comparing the thumb impression of the plaintiff appellant over the sale deed and other documents including the agreement, particularly when the trial court relied upon oral evidence, and lower appellate court without any justification or sufficient cause, interfered with the appraisal of oral evidence made by the trial court.
( 7 ) SRI B. N. Asthana, learned counsel for respondents, on the other hand, urged that the agreements deeds (papers 123-Ga, 124-Ga and 125-Ga), dated 22-3-75
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