High Court
Case Details
RSA 157/2011 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY
Legal Reasoning
This appeal by the defendant is directed against the judgment an d decree dated 18.12.2010 passed by the learned Civil Judge (Jr. Division) No. 3 , Kamrup at Guwahati in Title Appeal No. 42/2008, dismissing the appeal preferre d by the present appellant by affirming the judgment and decree dated 22.5.2008 passed by the learned Munsiff, No. 3, Kamrup at Guwahati in Title Suit No. 240/2 007 (Old Title Suit No. 58/2001) whereby and whereunder the suit of the present respondents/plaintiffs has been decreed. The present respondents, as plaintiffs, instituted the aforesaid suit for declar ation of their right, title and interest in respect of the land measuring 1 bigh a 2 katha 16 lechas more fully described in the schedule to the plaint and also for confirmation of possession, contending inter alia that the suit land origina l belonged to Dinesh Chandra Kaiborta, after whose death the same devolved on Su khada, mother, and his two children namely Manik Das and Nilima Das. It has furt her been contended that after the death of Sukhada the land has been mutated in the name of his aforesaid two children. The plaintiffs’ further case is that tho ugh the defendant has no title over the suit land he got his name mutated in the record surreptitiously for which they had to file the suit as aforesaid. The defendant contested the suit by filing written statement contending inter al ia that Sukhada Das, mother of Dinesh Chandra Koiborta mortgaged the suit proper ty in favour of the defendant’s father on 4.3.1970 (Ext. A) to secure a loan of Rs. 100/- and on the same day the possession was handed over to the father of th e defendant. According to the defendant subsequently there was also a written co ntract of sale dated 13.2.1992 (Ext. B) between Sukhada and the defendant. The d efendant has further pleaded that the plaintiffs in the year 2000 has dispossess ed the defendant. The defendant has also filed a counter claim for recovery of k has possession. The defendant has set up the plea of part performance of the con tract. The trial court upon appreciation of the evidence on record, both oral and docum entary, decreed the suit of the plaintiff declaring the right, title and interes t and confirmation of possession, dismissing the counter claim filed by the defe ndant. Being aggrieved the defendant filed the appeal before the first appellate court which has also been dismissed. Hence the present appeal. I have heard Mr. Sheeladitya, learned counsel for the appellant and Mr. Upadhyay , learned counsel appearing for the respondents. Mr. Sheeladitya, learned counsel for the appellant referring to Ext. B contract of sale dated 13.2.1992 has submitted that since the defendant could prove the i ngredients of Section 53A of the Transfer of Property Act, which plea has been s et up in the written statement filed, the learned court ought not to have decree d the suit in favour of the plaintiff, there being a written contract between Su khada Das and the defendant and the possession of the suit land having been deli vered apart from payment of part of the consideration amount. The learned counse l further submits that the learned courts below are not correct in recording the finding that since the mortgage deed (Ext. A) is not a registered document the same is not admissible in evidence. Per contra Mr. Upadhyay, learned counsel appearing for the respondent/plaintiff has submitted that it is evident from the alleged mortgage deed dated 4.3.1970 ( Ext. A) that the consideration amount was Rs. 100/- and as such in view of the S ection 17(b) of the Registration Act it is compulsorily registerable. The learne d counsel has further submitted that though the defendant has set up the plea un der Section 53(A) of the Transfer of Property Act the defendant could not prove the execution of the contract of sale by Sukhada Das on 13.3.1992 (Ext. B), exec ution of which the plaintiffs have denied by filing written statement against th e counter claim. I have considered the submission advanced by the learned counsel for the parties and also perused the materials available on record. The plaintiff has not disputed that originally the land belonged to Dinesh Koibo rta, the husband of plaintiff No. 1, and father of plaintiff No. 2 and 3. On the plea taken by the defendant of part performance under Section 53A of the Transf er of Property Act both the courts below have recorded the finding that the cont ract of sale, as pleaded by the defendant, could not be proved. Perusal of Ext. B, the contract of sale, reveals that though the said document is marked as Ext. B the thumb impression of Sukhada has not been proved, despite the plea taken b y the plaintiff in the written statement filed against the counter claim denying execution of such contract of sale. The contents of the document have also not been proved. Mere marking of a document as exhibit does not prove the contents t hereof as well as the signature of the executor. Section 53A of the Act provides for protection subject to fulfillment of the con ditions stipulated therein. One of the conditions to be satisfied by the person setting up such plea, is the execution of contract of transfer in writing as well as proof of signature of t he persons entering into such contract. Since the defendant could not prove the signature of Sukhada in the said contrac t, the defendant could not prove the existence of the written contract of transf er as required under Section 53A of the aforesaid Act. That apart, the origina l owner being Dinesh, son of Sukhada, Sunkhda alone cannot enter into a contract when Dinesh had two children namely Manik Das and Nilima Das. That being the position the learned courts below have rightly recorded the findi ng that the defendant could not prove the existence of a written contract for sa le. The next question which requires consideration is whether the learned courts bel ow were justified in recording the finding that Ext. A is a compulsorily registe rable document. Upon perusal of Ext. A it appears that the same was for a consideration of Rs. 1 00/-. Section 17(b) of the Registration Act, 1908, provides that such a document, valu e of which is Rs. 100 and upwards, is compulsorily registerable. Admittedly, Ext . A is not a registered document. Hence the same is not admissible in evidence. In view of the above, I do not find the existence of any substantial question of law in the present appeal and hence the same is dismissed. No cost.