High Court · 2012

Heard Mr. J Mollah, learned counsel for the appellants. This appeal by the defendants is directed against the judgment and decree dated 5.7.2011 passed by the learned Civil Judge, Lakhimpur at North Lakhimpur in TA N o. 2/2009 whereby and whereunder the appeal preferred by the appellants challeng ing the judgment and decree dated 7.8.2009 passed by the learned Munsiff No. 1 L akhimpur at North Lakhimpur in TS No. 40/2006 has been dismissed by affirming th e judgment and decree passed by the learned trial court. The respondents herein instituted the aforesaid title suit praying for declarati on of right, title and interest and for recovery of khas possession contending t hat though they are the owners of the suit land, which falls within the tribal b elt, the defendants on 14.12.2006 trespassed into the suit land and thereafter a gain on 16.2.2007 dispossessed the plaintiffs from the land and started cultivat ing the same. The plaintiffs, therefore, prayed for declaration of right, title and interest a nd recovery of khas possession as noticed above. The defendants on receipt of the summons entered appearance and filed the writte n statement. The basic contention of the defendants in the written statement is that they acquired right, title and interest over the suit land by virtue of the sale deed dated 4.1.1997 (Ext. B) executed by the plaintiff No. 1 transferring the right over the suit land for a valuable consideration of Rs. 3,500/-. The learned trial court initially framed the following issues for determination: (cid:28)(i) Whether there is cause of action for the suit? (ii) Whether the suit land has been under the occupation of the plaintiffs as to confirmation of possession? (iii) Whether the plaintiffs’ suit is under valued as Section 7 of Court Fee Act , and as such liable to be dismissed/ (iv) Whether the plaintiffs’ suit is barred by Section 115 of the Indian Evidenc e Act, 1977? (v) Whether the plaintiffs’ suit is barred by law of limitation? (vi) Whether the plaintiffs’ suit is maintainable in its present form? (vii) Whether the plaintiffs’ suit is bad for misjoinder of necessary parties? (viii) Whether the plaintiffs’ are entitled to get permanent injunction over the suit land restraining the defendants to enter into the suit land? (ix) Whether the plaintiffs’ are entitled to get any other relief/reliefs as per the law of equity? (cid:29) Having noticed that the most important issue relating to the right, title and in terest of the plaintiffs has not been framed, the issue No. 2 was amended as fol lows: (cid:28)Whether the plaintiff No. 1 has right, title and interest over the suit land an d entitled to recovery of khas possession thereof? (cid:29) The learned trial court thereafter framed another additional issue being issue N o. 10 which reads as follows: (cid:28)Whether the plaintiff No. 1 had sold the suit land to defendant No. 1 on 4.1.19 77 by executing an unregistered deed marked and exhibited as Ext. B? (cid:29) It appears that the learned court below has framed unnecessary issues and left o ut the main issues which require to be framed initially i.e. relating to the rig ht, title and interest of the plaintiffs and also whether the defendant acquired any right, title and interest pursuant to Ext. 1. Be that as it may, the right issues, however, were subsequently framed. The learned trial court upon appreciation of the evidences on record decided the suit in favour of the plaintiffs declaring the right, title and interest over t he suit land and rejected the contention of the defendants that by virtue of the sale deed dated 4.1.1977 they acquired the title over the suit land as the said document was not a registered document though compulsorily registerable. Being aggrieved the defendants preferred TA No. 02/2009 before the first appella te court which has also been dismissed by the impugned judgment and decree passe d. Hence the present appeal. It has been contended by the learned counsel for the appellant that since the pl aintiff No. 1 by executing the sale deed 4.1.1977 (Ext. B) transferred the inter est over the suit land in favour of the defendants and put them into possession, the plaintiffs have lost the right, title over the suit land after such sale. T he learned counsel, therefore, submits that the appeal may be admitted by formul ating the substantial question of law as to - whether the defendant acquired rig ht, title and interest by virtue of the sale deed dated 4.1.1977 (Ext. B). The plaintiffs in the plaint have claimed right, title and interest contending t hat they are the owners of the suit land and they were dispossessed on 16.2.2007 . The defendants did not dispute the ownership of the plaintiffs. What they have pleaded in the written statement is that they acquired the right, title and int erest over the suit land by right of purchase vide sale deed dated 4.1.1977 (Ext . B) as noticed above. Both the learned courts below have rejected the contention of the defendants tha t they acquired right, title by virtue of Ext. B document as the said document h as not been registered though compulsorily registerable. It is not in dispute that the sale deed dated 4.1.1977 is not a registered docum ent by which according to the defendants, the plaintiff No. 1 has sold the suit land for a consideration of Rs. 3,500/-. Section 54 of the Transfer of Property Act, 1982 provides how a sale is to be ma de. It provides that transfer in case of tangible immovable property of the valu e of one hundred rupees and upwards or other intangible thing can be made only b y a registered instrument. Section 17(1)(b) of the Registration Act, 1908 provides that non testamentary in strument which purport or operate to create, declare, assign, limit or extinguis h whether in the present or in future, any right, title or interest, whether ves ted or contingent, of the value of one hundred rupees and upward, to or in immov able property is compulsorily registerable; Section 49 of the said Act stipulates the effects of non registration of documen ts required to be registered. It provides that if the document which is compulso rily registerable is not registered it will not affect any immovable property co mprised therein or cannot be received in evidence for any transaction of any pro perty unless it has been registered. The sale deed dated 4.1.1977 (Ext. B) being admittedly not registered it cannot confer any right, title and interest on the defendants. In view of the above, no substantial question of law exists in the present appea l so as to admit the same. Hence the appeal stands dismissed. No cost.