APPEAL No. 37 of 1998 · Gauhati High Court

The respondent Nos. 1 to 3 in the present appeal filed Title Sui 2. t No. 409/1993 praying for a decree declaring the plaintiff Nos. 1 and 2’s right as land holders in respect of the 3rd Schedule land; for declaration of plainti ff No. 1’s right as land holder to the extent of 50% of the share of the land in the 4th Schedule; for declaration of tenancy right of the plaintiff No. 3 in re spect of the remaining part of the 4th Schedule land; for passing a decree for r ecovery of khas possession of the land in 3rd and 4th Schedule by evicting the d efendant Nos. 1 to 4/appellants in the present appeal and also for permanent inj unction, contending inter alia that the predecessor-in-interest of the plaintiff Nos. 1 and 2 came to occupy the land described in Schedule I initially as tenan t under late Sajid Ali and thereafter he purchased the Schedule 3 land, which is part of Schedule 1 land, by registered deed of sale dated 18.12.1950 together w ith the houses and other structures standing there on from the heirs of late Saj id Ali and on the strength of such purchase the predecessor-in-interest of the p laintiff Nos.

1 and 2 became the owner of Schedule 3 land and after the death of their predecessor-in-interest they inherited the property and became the owner. It has also been contended in the plaint that the 2nd Schedule land which inclu des the 4th Schedule land and the houses standing thereon originally belonged to Khan Saheb Abdul Karim Choudhury and Khan Bahadur Abdul Majid Choudhury in equa l shares and the plaintiff No. 3, which is a registered firm was tenant in respe ct of the land and the shop and houses standing over the Schedule 4 land as mont hly tenant under the aforesaid owners and subsequently the plaintiff No. 1 purch ased 50% of the land and the houses of 2nd Schedule from the heirs of late Khan Saheb Abdul Karim Choudhury by registered deed of sale dated 14.6.1978 and becam e the owner in respect of the 50% of the 2nd Schedule land and in respect of the remaining 50% the proforma defendant Nos.

5 and 6, who are the heirs of Khan Ba hadur Abdul Majid Choudhury continued to be the owners, in respect of which also the plaintiff No. 3 is the monthly tenant. According to the plaintiffs the defe ndant Nos. 1 to 4 on 30.6.1986 along with others trespassed into the land and bl ocked the passage in the eastern direction up to the Madan Mohan road which was used by the sweepers for cleaning the night soil from the latrine and blocked th e said passage which necessitated filing of the suit by the plaintiffs with the relief claimed, as noticed above. 3. The defendant Nos. 1 to 4 contested the said suit by filing the written statement denying the right, title and interest of the plaintiffs over t he land as claimed and also contending inter alia that their predecessor-in-inte rest late Kailash Chandra Banik was the original owner and after his death his s on Raimohan Banik acquired title by right of inheritance and thereafter by the d efendants. According to the defendants the land described in Schedule 1 and Sche dule 2 are their ancestral property and they acquired the title by right of inhe ritance. On the basis of the pleadings of the parties the trial court fra

med the following issues: - (cid:28)1. Is there any cause of action for the suit? 2. Is the suit maintainable in its present form and manner? 3. Whether the suit is barred by limitation? 4. Whether the defendants are trespassers on the suit land? 5. Whether the plaintiffs have right title interest over the suit land?

To what relief or reliefs plaintiffs are entitled? (cid:29)

The trial court upon appreciation of the evidences on records, a s adduced by the parties, both oral and documentary, has decreed the suit of the plaintiffs by holding that the plaintiffs have acquired right, title and intere st in respect of the Schedule 1 land and consequently over the Schedule 3 land b y right of purchase vide Ext. 6 sale deed dated 18.12.1950 and the 50% of the Sc hedule 2 land by right of purchase vide Ext. 8 sale deed dated 14.6.1978. For th e remaining part of the Schedule 2 land the tenancy right by the plaintiff No. 3 was also declared. The trial court has rejected the claim of the defendants tha t land over which they claim title by right of inheritance and described in Sche dule A to Schedule D of the written statement is not the suit land and the suit land described in Schedule 2 are different lands. Proforma defendant Nos. 5 and 6 who are the heirs of Khan Bahadur Abdul Majid Choudhury did not contest the su it. Being aggrieved, the defendant Nos. 1 to 4 filed Title appeal No 6. . 37/1998 which has also been dismissed by the first appellate court vide the af oresaid judgment and decree dated 20.9.2000 by concurring with the findings reco rded by the trial court. Hence the present appeal.

The appeal was admitted for hearing vide order dated 9.2.2001 on the following substantial questions of law: -

Whether the learned courts below were justified in relying on Exhibit 3 execu ted on 24.7.1931 in violation of Section 107 of the Transfer of Property Act? 2. Whether the learned courts below were justified in decreeing the suit of the plaintiffs in total disregard to the documents namely, Exhibit ’G’ (Khatian No. 3752 Dag Nos. 5072, 5073 and 5074) and ’H’ (Khatian No. 3351 Dag No. 5069) issue d as far back as on 16.12.1968?

I have heard Mr. BR Dey, learned senior counsel for the appellan ts as well as Mr. GN Sahewalla, learned senior counsel appearing for the respond ent Nos. 1, 2 and 3. None appears for the proforma respondent Nos. 4 and 5 who a re the proforma defendant Nos. 5 and 6 in the suit.

Referring to the substantial question of law No. 1 as framed vid e order dated 9.2.2001 and also referring to the Ext. 3, the purported sale deed executed by Sri Pratapchand Golcha in favour of Sri Bharat Chandra Deb, on the basis of which the plaintiffs ultimately claims title, it has been submitted by Mr. Dey, learned senior counsel for the appellants that since the said document i.e. Ext. 3 has not been registered as required under Section 107 of the transfe r of the Property Act read with Section 17 (1) (d) of the Registration Act, 1908 , the lessee namely; Bharat Chandra Deb did not acquire any right to transfer th e land as mentioned in Ext. 3 document dated 24.7.1931 and hence the subsequent transfer by Ext. 4 sale deed dated 10.10.1931 by Bharat Ch. Deb in favour of Saj id Ali, Forman Ali and Majid Ali can not confer any right, title and interest on the transferee and hence by virtue of the sale deed dated 18.12.1950 (Ext. 6) b y which the heirs of Sajid Ali, after partition of the land amongst the three br other namely, Forman Ali Mia, Sajid Ali Mia and Wajid Ali Mia, vide Ext. 5, no t itle can be passed on to the plaintiff Nos. 1 and 2 in respect of the Schedule 3 land which is part of the Schedule 1 land transferred by the heirs of Sajid Ali vide Ext. 6 sale deed dated 18.12.1950. According to Mr. Dey as Bharat Chandra Deb had no right over the property subsequent transfer by him would also not con fer any right on the transferee. Mr. Dey, therefore, submits that the decree dec laring the land holders right in favour of the plaintiff Nos. 1 and 2 in respect of the 3rd Schedule land, which is part of the Schedule 1 land and recovery of khas possession in respect of the 3rd Schedule land, therefore, needs to be set aside.

Referring to the substantial question of law No. 2 as formulated , Mr. Dey submits that Ext. G and H Khatians reflect possession of the appellant s/defendant Nos. 1 to 4 over both the Schedule 1 and Schedule 2 lands and hence the learned courts below keeping in view the long possession of the defendants o ver the said land ought not to have declared the right of the plaintiffs in resp ect of Schedule 3 and Schedule 4 land, which are part of the Schedule 1 and Sche dule 2 land respectively. Mr. Sahewalla, learned senior counsel appearing for the responde 11. nts Nos. 1, 2 and 3/plaintiffs on the other hand supporting the judgments and de crees passed by the courts below has submitted that the defendants having not ra ised the plea that Ext. 3 lease deed is invalid on the ground that the same has not been registered though required under Section 107 of the Transfer of Proper ty Act read with Section 17 (1) (d) of the Registration Act, cannot not be allow ed to raise the said plea in the second appellate stage.

I have considered the submissions made by the learned counsel fo r the parties and also perused the judgment and decrees passed by the courts bel ow apart from the Exhibits more particularly the Exhibits 3 to 8. Ext. 3 is the lease deed executed by Pratapchand Golcha in favour of Bharat Chandra Deb on 24. 7.1930 by creating yearly tenancy in respect of the land for a period of three y ears reserving the annual rent. The said Bharat Chandra Deb subsequently vide Ex t. 4 registered sale deed dated 10.10.1931 transferred the said land in favour o f Forman Ali, Sajid Ali and Wajid Ali all sons of Jitu Mia. By Ext. 5 registered deed dated 8.7.1953 there was partition of the land amongst the three brothers namely; Forman Ali, Sajid Ali and Wajid Ali, which was sold to them by Bharat Ch andra Deb vide Ext. 4 sale deed. The land falling in the share of Sajid Ali was subsequently transferred by his heirs in favour of the plaintiff Nos.

Section 107 of the Transfer of Property Act provides that a leas e of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument.

Clause (d) of Sub Section (1) of Section 17 of the Registration Act, 1908 requires that the documents of lease of immovable property from year t o year or for any term exceeding one year or reserving a yearly rent must be reg istered. The effect of non registration of a document compulsorily required to b e registered has been stipulated in Section 49 of the said Act. It provides that any document required by Section 17 or by any provisions of the Transfer of the Property Act, 1882 to be registered, shall effect any immovable property compri sed therein or confer any power to adopt, or be received as evidence of any tran saction affecting such property or confer such power unless it has been register ed. Proviso to Section 49 stipulates that such unregistered document affecting i mmovable property, however, may be received for evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or a s evidence of any collateral transaction not required to be effected by register ed instrument.

As discussed above, the plaintiffs in order to establish their r ight in respect of Schedule 3 property, which is a part of Schedule 1 property, has traced the right of the vendors to Ext. 3 lease deed by which the original o wner of the said land Pratapchand Golcha leased out the same to Bharat Ch. Deb, who in turn vide Ext. 4 sold out the same to Sajid Ali and his brothers and ther eafter the heirs of Sajid Ali to the plaintiff Nos. 1 and 2 vide Ext. 6 sale dee d.

The Ext. 3 document by which the tenancy for three years was cre ated by reserving the annual rent is the document which requires to be registere d compulsorily under Section 107 of the Transfer of Property Act read with Secti on 17(1)(d) of the Registration Act. No right shall be created in favour of Bhar at Ch. Deb by virtue of Ext. 3 the said document having not been registered, whi ch is evident from Ext. 3 document itself that the registration of the said docu ment has been refused by the Sub Registrar on 7.8.1931. Consequently Bharat Ch. Deb would not have any right to transfer the property vide Ext. 4 sale deed in f avour of the aforesaid three brothers including Sajid Ali and by the heir of Saj id Ali to the plaintiff Nos. 1 and 2 vide Ext. 6 sale deed.

The contention of the learned senior counsel for the respondents that as the defendants have not raised the said plea in the written statement t hey cannot be allowed to raise such plea in the second appellate stage, cannot b e accepted as the plaintiffs have traced the source of their right to Ext. 3 lea se deed and the Court is also required to determine as to whether the plaintiffs ’ vendor had acquired any right by such lease deed Ext. 3.

Section 90 of the Evidence Act allows the Court to draw presumpt ion as to the signatures and every part of such document which purports to be in the handwriting of any particular person and also relating to its due execution and attestation if such document is produced from the proper custody and proved to be 30 years old. There is no dispute to the Courts power to draw presumption which, however, is rebutable. Though the presumption can be drawn about the exe cution of the lease deed being Ext. 3, the lessee cannot claim any right over th e property covered by Ext. 3 lease deed the same being not a registered document s.

The second contention of the learned senior counsel for the appe llants that as they by proving the Ext. G and H could establish their long posse ssion since 1968, the learned court below ought not to have declared the right o f the plaintiff No. 3 in respect of the Schedule 4 land cannot be accepted in th e absence of any claim of right by adverse possession by the defendants. Mere po ssession however long it may be cannot confer any right on the possessor unless of course the possessor could demonstrate by leading cogent and reliable evidenc e that his right has ripen by right of adverse possession which is not the case in hand. That apart the appellants/defendants also could not prove that the area of land mentioned in Ext. G and H is the suit land. The contention advanced by the learned counsel for the appellant before the first appellate court that the suit is barred by limitation, in view of Article 64 of the Limitation Act, is al so not tenable as the suit filed by the plaintiff is based on title and not on t he basis of previous possession. In view of the aforesaid discussions, I am of the view that whil 20. e the plaintiff No. 1 is entitled to the declaration of his landholder right by right of purchase vide Ext. 8 sale deed dated 14.6.1978 in respect of the 50% of Schedule 4 land and also the plaintiff No. 3 to the decree declaring his status as tenant in respect of the remaining Schedule 4 land, the plaintiff Nos. 1 and 2 are not entitled to the declaration of their right in respect of the Schedule 3 land as prayed for. Hence while affirming the judgment and decree passed decl aring the plaintiff No. 1’s right in respect of 50% of the Schedule 4 land and o f the plaintiff No. 3’s status as tenant in respect of the remaining 50% of the Schedule 4 land as well as eviction of defendants from 50% of the land in Schedu le 4, the decree passed declaring the right of plaintiff Nos. 1 and 2 in respect of the Schedule 3 land is set aside.

rds forthwith. The Registry is directed to draw a decree and send down the reco