High Court
Case Details
RSA 87/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal by the defendant No.1 Shri Rama Kanta Bora, is directed agai nst the judgment and decree dated 29.01.2002 passed by the learned Civil Judge ( Sr. Division), Nagaon, in Title Appeal No.15/2002 partly allowing the appeal fil ed by the respondents/ plaintiffs by setting aside the judgment and decree dated 31.03.2001 passed by the learned Civil Judge (Jr. Division) No.1, Nagaon, in Ti tle Suit No.103/1997, whereby and whereunder the suit of the plaintiffs was init ially dismissed. The Cross Objection No.2/2003 has been filed by the plaintiffs/ respondents challenging the judgment passed by the First Appellate Court decreei ng their suit in part only. 2. The respondents in the appeal as plaintiffs instituted the aforesaid sui t for declaration of their right, title, interest and recovery of khas possessio n in respect of the land measuring 5 bighas 2 kathas 17 lechas, out of total lan d measuring 7 bighas 7 lechas, covered by Dag Nos.690 and 694 of periodic patta No.378 of Garmur Satra Kissam under Jagial Mouza in the district Nagaon, Assam, more fully described in the schedule to the plaint contending inter alia that Sh ri Naranath Saikia, who was the original owner and possessor of 7 bighas 7 lecha s of land, sold the entire land in favour of Rati Kanta Bora on 22.05.1964 and d elivered possession, by virtue of which Rati Kanta became the absolute owner. Ac cording to the plaintiffs, after the death of Rati Kanta, they have inherited th e property being the legal heirs and accordingly their names were mutated and th ey continued to be in possession of the said land. It has further been pleaded t hat the defendants in the meantime instituted a proceeding under Section 145 Cr. P.C. against the plaintiff Nos.1 to 4 and one Shri Jogen Bora, in which proceedi ng the possession of the defendants were declared and taking advantage of the sa me the defendants dispossessed the plaintiffs from the suit land on 08.07.1997 a nd denied their right, title and interest, which led to filing of the suit as af oresaid.
Legal Reasoning
The defendant No.1 contested the suit by filing written statement admitt 3. ing that the land measuring 7 bighas 7 lechas belonged to Rati Kanta Bora, the p redecessor-in-interest of the plaintiffs, who, however, sold 2 bighas 1 katha 19 ‰ lechas of land vide registered instrument dated 01.11.1965 (Ext.-Ka) and 1 big ha 0 katha 14 lechas by another registered deed of sale dated 06.12.1965 (Ext.-K ha) in favour of the father of the defendant No.1 and the possession was accordi ngly handed over. According to the defendant No.1 after the death of his predece ssor-in-interest, he possesses the land. It is also the case of the defendant No .1 in the written statement that Rati Kanta thereafter sold another plot of land measuring 3 bighas 2 kathas 13‰ lechas out of the aforesaid 7 bighas 7 lechas o f land to the defendant No.1 at Rs.9,000/- in the year 1974 (Ext.-Ga) by an unre gistered document and delivered possession with the assurance that as soon as a civil proceeding pending before the High Court is over the registered instrument would be executed, which, however, could not be executed by Rati Kanta, as he i n the meantime had expired. The defendant No.1, therefore, contended that even i f the defendant No.1 cannot acquire right, title and interest by virtue of such unregistered document (Ext.-Ga), he is protected under Section 53A of the Transf er of Property Act. The case pleaded by the plaintiffs that they were dispossess ed by the defendants have also been denied. 4. The Trial Court on the basis of the pleadings of the parties, framed the following issues for determination: Whether there is any cause of action for the suit? Whether the suit is maintainable in its present form and manner? Whether the suit is barred by law of limitation, principles of waiver, e (i) (ii) (iii) stoppel and acquiescence? (iv) ? Whether the suit is barred by Section 53 of the Transfer of Property Act (v) over the suit land? (vi) dants? (vii) for? Whether the plaintiff/plaintiffs has/have got right, title and interest Whether the plaintiffs have dispossessed from the suit land by the defen Whether the plaintiffs are entitled to get any relief/ reliefs as prayed The plaintiffs in order to prove their case examined 3(three) witnesses 5. and proved 2(two) documents being Exts.-1 and 2. The defendants have examined 6( six) witnesses and proved 5(five) documents being Exts.-Ka to Unga. The Trial Court upon appreciation of the evidence on record dismissed th 6. e suit of the plaintiffs by holding that though the plaintiffs’ predecessor-in-i nterest admittedly had the right, title and interest, his right in respect of th e land measuring 2 bighas 1 katha 19‰ lechas and 1 bigha 0 katha 14 lechas was e xtinguished because of the execution of the sale deeds dated 01.11.1965 and 06.1 2.1965, Ext.-Ka and Ext.-Kha, respectively, in favour of the predecessor-in-inte rest of the defendant No.1, which land is part of the entire land measuring 7 bi ghas 7 lechas, which belonged to the predecessor-in-interest of the plaintiffs. It has further been held that the defendants are protected under Section 53A of the Transfer of Property Act, having regard to the unregistered document being E xt.-Ga. 7. Being aggrieved the plaintiffs preferred the aforesaid appeal, which has been partly allowed by partly decreeing the suit of the plaintiffs to the exten t of 3 bighas 2 kathas 13‰ lechas of land, which according to the defendants was transferred by the predecessor-in-interest of the plaintiffs in favour of the p redecessor-in-interest of the defendant No.1 by an unregistered document, Ext.-G a, and over which land the defendants have claimed the protection under Section 53A of the Transfer of Property Act. The First Appellate Court has held that the plaintiffs could prove due execution of the sale deeds dated 01.11.1965 and 06. 12.1965, Exts.-Ka and Kha, respectively, by the predecessor-in-interest of the p laintiffs in favour of the predecessor-in-interest of the defendant No.1. Presum ption of due execution of the said sale deeds was also drawn, in view of the pro visions contained in Section 90 of the Evidence Act. Hence the present appeal. The appeal was admitted for hearing vide order dated 29.05.2002 on the f 8. ollowing substantial questions of law:- (cid:28)1. Whether the appellant is protected from eviction under the provisions of Section 53A of the Transfer of Property Act? And 2. Ext.-Ga and unregistered catcha deed? (cid:29) Whether the appellant became owner of the disputed land on the basis of 9.
Legal Reasoning
I have heard Ms. M. Phookan, learned counsel for the appellant/defendant No.1 and Ms. T. Goswami, learned counsel appearing for the respondents/plaintif fs. 10. Referring to the judgments passed by the Courts below, it has been submi tted by the learned counsel for the appellant that even if the Ext.-Ga, being an unregistered instrument, the defendant No.1 cannot acquire any right, title and interest over the land measuring 3 bighas 2 kathas 13‰ lechas, the said documen t is admissible in evidence for other collateral purposes, namely, to prove the contract between the parties, for sale of the land and as such the defendant No. 1 was protected by Section 53A of the Transfer of Property Act, as the predecess or-in-interest of the plaintiffs on execution of the said unregistered document delivered possession of the said land to the predecessor-in-interest of the defe ndant No.1, who after taking over the possession continued to possess the land i n furtherance of the contract and willing to perform his part of the contract. I t has, therefore, been submitted that the First Appellate Court ought not to hav e disturbed the judgment and decree passed by the Trial Court holding that the a ppellant is entitled to the protection under Section 53A of the Transfer of Prop erty Act when the appellant could prove due execution of such document by the pr edecessor-in-interest of the plaintiffs in favour of the appellant’s predecessor -in-interest. The learned counsel further submits that the appellant also could prove due execution of Exts.-Ka and Kha sale deeds by which the predecessor-in-i nterest of the plaintiffs had transferred 2(two) plots of land in favour of the predecessor-in-interest of the defendant No.1 and those being more than 30 years old and having produced from the proper custody, the First Appellate Court has rightly drawn presumption of its due execution, in view of Section 90 of the Evi dence Act. The learned counsel referring to Section 60 of the Registration Act, 1908 further submits that Exts.-Ka and Kha being the registered instruments, its execution as well as the contents of the documents are presumed to be proved, w hich presumption, however, being rebuttable presumption, the burden lies on the plaintiffs to prove that no such sale deed was executed and in the instant case as the plaintiffs have failed to prove the same, the First Appellate Court has r ightly held that the predecessor-in-interest has transferred 2 bighas 1 katha 19 ‰ lechas and 1 bigha 0 katha 14 lechas of land in favour of the predecessor-in-i nterest of the defendant No.1 by Exts.-Ka and Kha sale deeds. 11. The learned counsel appearing for the respondents, on the other hand, ha s submitted that though the defendants have claimed that there was a contract be tween the predecessor-in-interest of the plaintiffs and the predecessor-in-inter est of the defendant No.1 relating to the sale of the land measuring 3 bighas 2 kathas 13‰ lechas, the defendants could not prove that the said document was exe cuted by the predecessor-in-interest of the plaintiffs. It has also been submitt ed that it is apparent from the Ext.-Ga that the said document was not executed by Rati Kanta Bora but was executed by one Rati Ram Bora, who is not the father of the plaintiffs. The learned counsel referring to the judgment passed by the F irst Appellate Court has also submitted that, that apart, the execution of such document by the predecessor-in-interest of the plaintiffs has rightly been disbe lieved by the Appellate Court as the DW-6, who is the writer of the document did not support the case of the defendants that the predecessor-in-interest of the plaintiffs has signed the document in presence of the writer. The learned counse l further submits that the genuineness of the said document has rightly been dou bted by the First Appellate Court, when the said document was never produced in the 145 proceeding initiated in the year 1993, though the document was shown to have been executed on 12.01.1974. The learned counsel, therefore, submits that t he First Appellate Court in so far as it relates to the land measuring 3 bighas 2 kathas 13‰ lechas has rightly passed the decree in favour of the plaintiffs. 12. In so far as it relates to the refusal of the First Appellate Court to p ass a decree relating to the remaining 2 bighas 0 katha 3‰ lechas of land, it ha s been submitted by the learned counsel that even if the Exts.-Ka and Kha sale d eeds can presumed to have been duly executed, the same having been more than 30 years old, it does not necessarily mean that the contents of the documents are p roved. The learned counsel submits that the defendants could not prove by adduci ng any cogent evidence that by such sale deed the quantum of land mentioned ther ein has been transferred by the predecessor-in-interest of the plaintiffs in fav our of the predecessor-in-interest of the defendant No.1. The learned counsel, t herefore, submits that the First Appellate Court ought to have decreed the suit of the plaintiffs in respect of the remaining land measuring 2 bighas 0 katha 3‰ lechas also. I have considered the submissions advanced by the learned counsel for th 13. e parties. I have also perused the judgments and decrees passed by the Courts be low, apart from the materials available on record. Exts.-Ka and Kha sale deeds are admittedly registered under the provisio 14. ns of the Registration Act, 1908. Those were executed on 01.11.1965 and 06.12.19 65, respectively and were produced from the proper custody, namely, the successo r-in-interest of the purchaser, after 30 years of its execution, in the present suit. Section 90 of the Evidence Act provides that where any document, purport 15. ing or proved to be thirty years old, is produced from any custody which the Cou rt in the particular case considers proper, the Court may presume that the signa ture and every other part of such document, which purports to be in the handwrit ing of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by th e persons by whom it purports to be executed and attested. Explanation to the sa id provision provides that the documents are said to be in proper custody if the y are in the place in which, and under the care of the person with whom, they wo uld naturally be; but no custody is improper if it is proved to have had a legit imate origin, or if the circumstances of the particular case are such as to rend er such an origin probable. In the case in hand, as discussed above, Exts.-Ka and Kha are more than 16. 30 years old and produced from proper custody, namely, from the custody of the s uccessor-in-interest of the purchaser. The execution of the said documents, ther efore, has rightly been presumed by the First Appellate Court. The plaintiffs in itially though projected in the plaint that there was no transfer of land by the ir predecessor-in-interest in favour of the predecessor-in-interest of the defen dant No.1, PW-1 in his deposition has, however, admitted the transfer of land by his predecessor-in-interest in favour of the predecessor-in-interest of the def endant No.1 vide Ext.-Kha sale deed. During cross-examination this witness has a lso stated that he does not know whether the land measuring 2 bighas 1 katha 19‰ lechas has been transferred by his predecessor-in-interest in favour of the pre decessor-in-interest of the defendant No.1 by Ext.-Ka sale deed. 17. Section 60 of the Registration Act, 1908 provides that the certificate o f registration signed, sealed and dated by the registering authority is admissib le for the purpose of proving that the document has been duly registered in the manner provided by the Act and that the facts mentioned in the endorsements refe rred to in Section 59 have occurred as therein mentioned. Section 59 requires th e registering authority to affix the date and his signature to all endorsements made under Sections 52 and 58, relating to the same document and made in his pre sence on the same day. Section 58 requires endorsement relating to the signature and addition of any person admitting the execution of the document, payment of money or delivery of goods made in the presence of the registering authority in reference to the execution of the document, and any admission of receipt of cons ideration, in whole or in part, made in his presence in reference to such execut ion, apart from others. The presumption, therefore, on issuance of certificate o f registration, is in favour of due execution of a registered instrument includi ng the contents of the document. Such presumption, however, is rebuttable, which has to be rebutted by adducing cogent evidence by the person challenging the sa me. In the instant case, as the plaintiffs’ case was that no sale deed was ever executed by their predecessor-in-interest in favour of the predecessor-in-intere st of the defendant No.1, it was their burden to rebut such presumption, which t he plaintiffs have miserably failed to do. On the other hand, as discussed above , the PW-1 in his in-chief examination has admitted execution of Ext.-Kha and du ring cross-examination has stated that he does not know whether his father had e xecuted Ext.-Ka sale deed or not. That being the position, the First Appellate C ourt has rightly held that the predecessor-in-interest of the plaintiffs has tra nsferred the land measuring 2 bighas 1 katha 19‰ lechas and 1 bigha 0 katha 14 l echas in favour of the predecessor-in-interest of the defendant No.1 by Exts.-Ka and Kha sale deeds, dated 01.11.1965 and 06.12.1965, respectively. This leads to the question as to whether the defendant No.1 became the o 18. wner of the land measuring 3 bighas 2 kathas 13‰ lechas by virtue of Ext.-Ga sal e deed, which admittedly an unregistered instrument and by which, according to t he defendant No.1, the predecessor-in-interest of the plaintiffs have transferre d the said land in favour of the predecessor-in-interest of the defendant No.1 f or a consideration of Rs.9,000/-. 19. Section 54 of the Transfer of Property Act lays down how the sale is to be made. It provides that in case of tangible immovable property of value of one hundred rupees and upwards, the sale can be made only by a registered instrumen t. The consideration amount mentioned in Ext.-Ga being Rs.9,000/-, by such docum ent the defendant No.1 cannot acquire right, title and interest as it does not c onstitute sale within the meaning of Section 54 of the Transfer of Property Act. 20. The next question which requires consideration is whether the plaintiffs could prove the ingredients constituting part performance within the meaning of Section 53A of the Transfer of Property Act. Section 53A provides that where an y person contracts to transfer for consideration any immoveable property by writ ing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee ha s, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in posse ssion in part performance of the contract and has done some act in furtherance o f the contract, and the transferee has performed or is willing to perform his pa rt of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of tran sfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming u nder him shall be debarred from enforcing against the transferee and persons cla iming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. The proviso, however, provided that nothing in the said p rovision shall affect the rights of a transferee for consideration who had no no tice of the contract or of the part performance thereof. Although by Ext.-Ga unregistered instrument the defendant No.1 cannot cl 21. aim the right, title and interest, as held above, the same can be used for other collateral purposes, namely, for setting up of the plea of part performance in the case in hand. The defendant No.1, however, to succeed in the plea of part pe rformance has to prove the execution of the contract by the predecessor-in-inter est of the plaintiffs, handing over of possession as well as doing some act in f urtherance of the contract apart from willing to perform his part of the contrac t. In the instant case, it has been found the First Appellate Court, which is ri ghtly so, that Ext.-Ga was not executed by Rati Kanta Bora but was executed by o ne Rati Ram Bora. The First Appellate Court in exercise of the power under Secti on 73 of the Evidence Act compared the admitted signatures of Rati Kanta Bora ap pearing in Exts.-Ka and Kha with that of Rati Ram Bora appearing in Ext.-Ga and found to be of different handwriting. To satisfy myself I have also compared tho se signatures and found that the signature appearing in Ext.-Ga prima facie does not tally with the signatures appearing in Exts.-Ka and Kha. That apart, though the DW-2 in his evidence has categorically stated that Rati Ram Bora executed E xt.-Ga in presence of the writer (DW-6), the writer (DW-6), however, in his evid ence did not support the DW-2 as he has stated that Rati Ram Bora or Rati Kanta Bora never signed the said document in his presence. Another important fact whic h was rightly consideration by the First Appellate Court was that the defendants never, in the proceeding initiated under Section 145 Cr.P.C. in the year 1993, stated anything relating to the execution of Ext.-Ga document by Rati Ram Bora o r Rati Kanta Bora, though it was shown to be executed on 12.01.1974. The executi on of the said document has, therefore, rightly been doubted by the First Appell ate Court. Hence the basic ingredients to get the protection under Section 53A o f the Transfer of Property Act i.e. the execution of a contract could not be pro ved by the defendants in the suit. 22. In view of the aforesaid discussion, I am of the view that the First App ellate Court has rightly passed the judgment and decree, which requires no inter ference in the appeal. The RSA No.87/2002 as well as Cross Objection No.2/2003 a re, therefore, dismissed. No cost. 23. The Registry is directed to send down the records.