The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. No.381 of 2012 An application under Section 100 of the Civil Procedure Code. Binoda Mallick …. Appellant Bharati Mallick …. Respondent -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant For Respondent CORAM: - - Mr. S.K. Nayak-2, Advocate None. MR. JUSTICE A.C.BEHERA Date of Hearing :07.11.2023 :: Date of Judgment :30.11.2023 1. This 2nd Appeal has been preferred against the confirming Judgment. 2. The respondent of this 2nd Appeal was the sole plaintiff in the suit vide C.S. No.136 of 2007 and she was the respondent in the 1st Appeal vide R.F.A. No.37 of 2011. R.S.A No.381 of 2012 Page 1 of 18 {{ 2 }} The appellant of this 2nd Appeal was the defendant in the suit vide C.S. No.136 of 2007 and he was the appellant in the 1st Appeal vide R.F.A. No.37 of 2011. 3.
Legal Reasoning
The suit of the plaintiff vide C.S No.136 of 2007 was a suit for permanent injunction and demarcation, in alternative for recovery of possession. 4. The case of the plaintiff Bharati Mallick in C.S. No.136 of 2007 as per the averments made in her plaint was that, suit land is an area of Ac.0.16 decimals in Mouza Andara vide plot No.5781 under Khata No.132 in the district of Kendrapada. In the last settlement the suit land was recorded in the name of Kasinath Mallick son of Bhikari Mallick and Sodari Mallick wife of Kapila Mallick. In order to have a better appreciation and so also, for just decision of this 2nd Appeal, the family pedigree of Kasinath and Sodari provided by the plaintiff in her plaint is depicted hereunder: Genealogy Bhikari Mallick Kasinath Mallick (dead) Maguni (wife) Kapila Mallick (dead) Sodari (wife) Indumati R.S.A No.381 of 2012 Manika Page 2 of 18 {{ 3 }} 5. As per the aforesaid genealogy given by the plaintiff, Bhikari Mallick was the common ancestor. Bhikari Mallick died leaving behind his two sons i.e. Kasinath Mallick and Kapila Mallick. Kasinath Mallick died leaving behind his wife and daughter i.e. Maguni Mallick and Indumati Mallick. Kapila Mallick died leaving behind his wife Sodari Mallick and daughter Manika Mallick. The suit properties were originally belonged to Bhikari Mallick. After the death of Bhikari Mallick, the suit properties devolved upon his two sons i.e. Kasinath Mallick and Kapila Mallick. Accordingly, Kasinath Mallick and Kapila Mallick had half share each over the suit properties. After the death of Kasinath Mallick, his half share in the suit properties had devolved upon his wife and daughter i.e. Maguni Mallick and Indumati Mallick. Accordingly, after the death of Kapila Mallick his half share in the suit properties devolved upon his wife and daughter i.e. Sadari Mallick and Manika Mallick. Maguni Mallick expired leaving behind her only daughter Indumati Mallick. So, her share in the suit properties devolved upon Indumati, for which, Indumati became the owner over the half share of Kasinath in the suit properties. Sadari died leaving behind her daughter Page 3 of 18 R.S.A No.381 of 2012 {{ 4 }} Manika Mallick. After the death of Sadari, Manika Mallick had become the owner over the half share of Kapila Mallick in the suit properties. While Indumati Mallick and Manika Mallick were the joint owners over the suit properties, they sold the same to the plaintiff by executing and registering a sale deed on dated 24.11.2006 after accepting the due consideration amount for the same and delivered possession thereof to the plaintiff. After purchasing the suit properties from Indumati and Manika, she (plaintiff) applied for mutation of the same to her name and accordingly, the suit properties were mutated to her name. She (plaintiff) has been possessing the suit properties being the exclusive owner thereof. The land of the defendant is situated to the adjacent east of the suit properties. There was a fence between the suit properties and the land of the defendant. 6. In order to construct a permanent boundary wall between the suit land and the land of the defendant, the plaintiff and her husband removed the old middle green fence and put sticks over the demarcated line in presence of the defendant for construction of permanent pucca boundary wall. Soon after removal of the middle boundary fence, the defendant tried to encroach upon the suit land of the plaintiff, for which, without getting any way, the plaintiff approached the civil court by filing the suit vide C.S. No.136 of 2007 against the defendant praying for restraining Page 4 of 18 R.S.A No.381 of 2012 {{ 5 }} the defendant permanently from entering, encroaching and demolishing the thatched house over the suit land and also from creating any disturbance in her peaceful possession on the suit land and for demarcation of the eastern boundary of the suit plot through Civil Court Commissioner, in alternative for restoration of possession, if she (plaintiff) is found to be dispossessed by the defendant during the pendency of the suit along with other relieves, to which she (plaintiff) is entitled for as per law and equity. Having been noticed from the court in C.S. No.136 of 2007, the defendant challenged the same filing his W.S. denying the averments made by the plaintiff in her plaint by taking his stands inter alia therein that: “The genealogy given in Para-3 of the plaint of the plaintiff is not the true and correct genealogy of Bhikari Mallick. According to the defendant, Bhikari Mallick died leaving behind his two sons i.e. Kasinath Mallick & Kapila Mallick. Kasinath Mallick died leaving behind his wife Maguni Mallick and daughter Indumati Mallick. Kapila Mallick died leaving behind his widow Sodari Mallick and two daughters namely, Manika and Ahalya. Ahalya died leaving behind her 3 children i.e. Harekrushna, Alekha and Fakira. R.S.A No.381 of 2012 Page 5 of 18 {{ 6 }} According to him (defendant), the R.o.R of the suit land stands in the name of Kasinath Mallick son of Bhikari Mallick and Sodari Bewa wife of Late Kapila Mallick. Kasinath expired in the year 1985 leaving behind his wife Maguni Mallick and one married daughter namely, Indumati Mallick as his successors. Kapila Mallick died 50 years back leaving behind his widow Sadari Bewa and two married daughters i.e. Manika and Ahalya as his successors. Sodari Mallick has died 20 years back. As Sodari Bewa had no male heir and her 1st daughter i.e. Manika had married at Village Panchapada under Ali Tahasil and her 2nd daughter i.e. Ahalya had married to Basudebapadiari of village Sorisigada of Ali Tahasil, for which, both the daughters of Sodari were residing in their respective in-laws houses. So, the entire suit land was under the possession and control of Maguni Mallick (wife of Kasinath Mallick). After the death of Kasinath Mallick, his widow Maguni Mallick was burdened with the loans incurred by her husband Kasinath Mallick for the marriage of his daughter Indumati. Maguni had no source of income to manage her day to day life. Therefore, Maguni Bewa had borrowed some money from her villagers for her daily maintenance and for repayment of the loans incurred by her husband. Therefore, Maguni Bewa decided to alienate R.S.A No.381 of 2012 Page 6 of 18 {{ 7 }} northern side Ac.0.08 Decimals of suit Plot No.5781 to him (defendant) and received Rs.20,000/- as advance from him (defendant) on 25.08.1995 as a part of consideration money for selling that Ac.0.08 decimals of the northern side of suit plot to the knowledge of the daughters of Kapila. On payment of such advance money of Rs.20,000/-, the defendant possessed the suit land since 28.08.1995 and constructed a thatched house on the same having two rooms, in which, he (defendant) and his family members are residing. Subsequent thereto, he (defendant) made an another thatched house in the middle of the northern portion of the suit land, to which, he (defendant) has been possessing as his kitchen and cowshed. He (defendant) has also planted several trees on the suit land. The widow of Kasinath i.e. Maguni again accepted Rs.65,000/- from him (defendant) towards the full consideration amount of that, Rs.Ac.0.08 decimals of the suit land and executed an unregistered agreement to sell in his favour. But, before registration of the sale deed, all of a sudden, Maguni Bewa fell ill and suffered for about 1 year being bed ridden. During the ailments of Maguni, the defendant and his family members had provided adequate treatments to her, but she (Maguni Mallick) expired in the year, 2005. The daughters of Kapila Mallick i.e. Manika and Ahalaya have also received Rs.85,000/- jointly from him R.S.A No.381 of 2012 Page 7 of 18 {{ 8 }} (defendant) in the year, 1995 towards the consideration amount of the rest portion of the suit land i.e. for the southern side Ac.0.08 Decimals of the suit plot No.5718 in order to sell the same to him (defendant) with a promise to execute and register the sale deed in respect of the southern side Ac.0.08 Decimals of the suit land in his favour and had delivered possession of that Ac.0.08 decimals to him (defendant). Accordingly, the defendant has been possessing the entire suit land i.e. Ac.0.16 Decimals as his house and homestead. Neither the daughter of Maguni nor the daughter of Kapila has disturbed in his possession over the suit land in any manner, for which, he (defendant) has acquired title over the suit land. So, his right, title, interest and posession over the suit land is required to be declared and his possession on the same is required to be confirmed. The so-called registered sale deed bearing No.1433 dated 24.11.2006 said to have been executed by Indumati and Manika in favour of the plaintiff in respect of the suit land is a fake and fraud deed. Because, the vendors of the said deed were not in normal state of mind on the date of registration and no consideration money has been paid to them by the plaintiff and no possession of the suit land has been delivered by them to the plaintiff. Therefore, the so-called sale deed in question in favour of the plaintiff is voidable and inoperative in the eye of law. R.S.A No.381 of 2012 Page 8 of 18 {{ 9 }} Though, he (defendant) had approached several times to Manika in order to execute the sale deed in his favour, but, she had not executed the same. The further case of the defendant was that, there was/is no green fence in the eastern boundary of the suit land. The plaintiff had never drawn any demarcating line by putting stick for laying out foundation of the eastern boundary wall. Northern boundary of the suit land is well bounded with dry and green fence. But the same has been damaged since last 4 months. He (defendant) had not threatened the plaintiff at any point of time, as he (defendant) was/is in peaceful possession over the suit land since the year, 1995, for which, there was no reason for him (defendant) to give threat to the plaintiff. So, the suit of the plaintiff is liable to be dismissed. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the trial court in C.S. No.136 of 2007 and the said issues are: Issues 1. 2. 3. 4. Is the suit maintainable? Has the plaintiff any cause of action to file the suit? Is the plaintiff is entitled for a decree declaring her right, title, interest and possession over the suit land? Is the plaintiff entitled for a decree of permanent injunction restraining defendant to interfere in her peaceful possession? R.S.A No.381 of 2012 Page 9 of 18 {{ 10 }} 5. Is the plaintiff is entitled for any other reliefs? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff in her suit against the defendant, she (plaintiff) examined altogether 4 numbers of witnesses including her as P.W.1 and she relied upon series of documents on her behalf vide Ext.1 to 10/A. On the contrary, defendant examined 6 witnesses from his side including him as D.W.6 and exhibited several documents on his behalf vide Ext.A to C. Whereas one witness was examined as a court witness and 2 documents were marked on behalf of the court as Ext.C1 and C2. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trail court answered issue Nos.3,4 and 5 in favour of the plaintiff and against the defendant, but the issue Nos.1 and 2 were not pressed by the parties. Basing upon the findings and observations made by the trial court in issues No.3,4 and 5 in favour of the plaintiffs and against the defendant, the trial court decreed the suit of the plaintiff vide C.S. No.136 of 2007 on contest against the defendant vide its Judgment and decree dated 28.09.2011 and 14.10.2011 respectively and declared that, the plaintiff has right, title, interest and possession over the suit land and injuncted the defendant permanently from entering, encroaching and interfering with the peaceful possession of the plaintiff over the suit land by assigning the reasons that, the plaintiff is the owner of the suit land by R.S.A No.381 of 2012 Page 10 of 18 {{ 11 }} purchasing the same from Indumati and Manika (those are the daughters and successors of Kasinath and Kapila) through registered sale deed dated 24.11.2006 vide Ext.1 and the R.o.R of the suit land stands in the name of the plaintiff through mutation vide Ext.2, but the defendant has no interest and possession over the suit land. Because the claim of ownership over the suit land raised by the defendant through an unregistered agreement as well as through oral purchase are inadmissible under law. 8. On being dissatisfied with the aforesaid Judgment and decree dated 28.09.2011 and 14.10.2011 respectively passed in C.S. No.136 of 2007 in favour of the plaintiff and against the defendant, he (defendant) challenged the same by preferring the 1st Appeal vide R.F.A. No.37 of 2011 being the appellant against the plaintiff by arraying her (plaintiff) as respondent. After hearing from both the sides, the 1st Appellate Court dismissed the 1st Appeal of the defendant vide R.F.A. No.37 of 2011 through its Judgment and Decree dated 04.10.2012 and 19.10.2012 respectively on contest, concurring the findings and observations of the trial court. 9. On being aggrieved with the aforesaid Judgment and decree of dismissal of the 1st Appeal of the defendant vide R.F.A. No.37 of 2011 by the 1st Appellate Court, he (defendant) preferred this 2nd Appeal being the appellant against the plaintiff by arraying her (plaintiff) as respondent. R.S.A No.381 of 2012 Page 11 of 18 {{ 12 }} This 2nd Appeal has been admitted on the formulation of the following substantial question of law i.e. “Whether the courts below are justified holding the Ext.A (agreement for sale) is inadmissible in evidence for want of registration without considering the proviso to Section 49 of the Registration Act and not applying the protection under Section 53A of the T.P. Act?” 10. It is the specific plea of the defendant (appellant) that, he is in possession over the suit land on the basis of an unregistered agreement vide Ext.A dated 27.04.2004 said to have been executed by Maguni Bewa in his favour. As per Section 17 (1-A) of the Registration Act, 1908, amended vide Act 48 of 2001 w.e.f. 24.09.2001’ the documents containing contract to transfer for consideration, any immovable property for the purpose of Section 53 A of the T.P. Act, 1882 shall be registered, if they have been executed on or after the commencement of the registration and other related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of the said Section 53A of the T.P. Act, 1882. Here in this suit at hand, the defendant has claimed his ownership and possession over the suit land on the basis of an unregistered agreement dated 27.04.2004 vide Ext.A, which is much after 24.09.2001. Page 12 of 18 R.S.A No.381 of 2012 {{ 13 }} For which, due to want of registration of that Ext.A, the said document in question vide Ext.A has become inadmissible under law. Because, as per Section 17 (1-A) of the Registration Act, 1908, that agreement vide Ext.A was compulsorily registerable. 11. On that aspect, propositions of law has already been clarified by the Honb’le Courts and Apex Court in the ratio of the following decisions: (1) 2023 (2) CCC 108 (Pat.) —Anis Ahmad Vs. Rahat Ehtesham (Para 43). “Registration Act, 1908—Section 17(1-A) read with Section 53A of T.P. Act, 1882—Registration of agreement to sell—Section 17(1A)of Registration Act read with Section 53A of T.P. Act. In view of their amendments in year, 2001, Agreement requires registration, only when is delivered and possession of accepted under the agreement and that too for a limited purpose of protection under Section 53 A of T.P. Act, 1882 and not otherwise.” immovable property (2) 2018 (3) CCC (SC) 272—Ammer Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Others (Para 10,11 & 12) & 2018 (II) OLR (SC) 697— Ammer Minhaj Vs. Dierdre Elizabet (Wright). “Registration Act, 1908, Sections-17(1A) & 49 read with T.P. Act, 1882—Section 53A—Unregistered agreement for sale—Shall have no effect for the purpose of Section-53A of the T.P. Act, 1882—But can be admitted as evidence of a contract in a suit for specific performance as per proviso to Section 49 of the Registration Act.” (3) 2022 (1) Civil Court Cases Page-36—Telengana (D.B)— Hyderabad & Others Vs. P. Balabhaskar Reddy. (Para 9 & 13) “The Registration Act 1908—Sections 17 & 49— compulsorily Unregistered registerable, even if it is properly stamped, does not affect any immoveable property comprised therein.” document, which is R.S.A No.381 of 2012 Page 13 of 18 {{ 14 }} (4) 2018 (2) OJR (SC) 890—Para 20—Shyam Narayan Prasad Vs. Krishna Prasad and Others. “The Registration Act, 1908—Sections 17 and 49—Effect of none registration—Held. The Registration Act mandates that, any document which is the effect of creating and taking away the rights in respect of any immovable property, must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act.” (5) 2008 (3) Apex Court Judgments—151 (S.C):2008 (3) Civil Court Case—468 (S.C)— M/s. K.B. Saha & Sons Pvt. Ltd. Vs. M/s. Development Consultant Ltd. “The Registration Act, 1908—Sections 17 & 49 read with T.P. Act, 1882—A document by law required to be registered, if unregistered—Law as to-(1) A document required to be registered is not admissible into evidence under Section 49 of the Registration Act (2) Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act (3) A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration (4) A collateral transaction must be a transaction not itself required to be effected by a registered document, i.e. a transaction creating etc.. any right, title or interest in immoveable property of the value of 100 rupees and upwards (5) If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. (6) 2017 (I) OLR—728—Abani Kumar Meher & Others Vs. District Collector, Bargarh (Para 6). “Registration Act, 1908—Sections 17 (1)(b) & 49— Any document which has the effect of creating and taking away rights in respect of an immovable property, must be registered—Section 49 of the Act imposes bar on the admissibility of an unregistered document and deals that R.S.A No.381 of 2012 Page 14 of 18 {{ 15 }} document that are required to be registered under Section 17 of the Act.” (7) 2019 (2) CCC 158 (M.P.) —Kundan Soni & Others Vs. Devendra Kumar Soni & Others. “Registration Act, 1908—Sections 17(2)(v) & 49— Admissibility of unregistered document in evidence—A document required to be registered, but not registered is inadmissible in evidence and even its terms cannot be admitted in evidence.” (8) 2019 (4) Civil Court Cases—612 (Rajasthan) Vijay Kumar Vs. Urban Improvement Trust (Para 8 to 11). “Indian Registration Act, 1908—Sections 17 and 49— Unregistered agreement to sell—Agreement to sell relied upon as a document of title—A document in support of in evidence sans registration. title Document cannot be read in evidence.” inadmissible is 12. Here in this suit at hand, as per the own pleadings of the defendant, the valuation of the suit land is more than lakhs of rupees and he (defendant) is claiming his ownership and possession in respect of Ac.0.08 Decimals out of Ac.0.16 Decimals over the suit land on the basis of an unregistered agreement vide Ext.A and he is claiming ownership over rest Ac.0.08 Decimals of the suit land on the basis of oral sale to him without relying upon any registered sale deed in his favour in respect of the suit land. When the defendant/appellant is claiming possession and ownership over the suit land on the basis of an unregistered agreement vide Ext.A and as well through oral purchase and when undisputedly the valuation of the suit land is more than lakhs of rupees, R.S.A No.381 of 2012 Page 15 of 18 {{ 16 }} then, in absence of any lawful registered sale deed in his favour by the owners of the suit land, the title and possession of the suit land can never be passed as per law to him (defendant). Because, as per law, for transferring the ownership of the suit land in his favour from the successors of Kasinath and Kapila, it requires lawful registered sale deed. 13. As per the clarifications made by the Hon’ble Courts and Apex Court in the ratio of the aforesaid decisions, the so-called agreement vide Ext.A relied upon by the defendant is compulsorily registerable. Therefore, due to want of registration of that Ext.A, the said Ext.A has become inadmissible under law. On the contrary, the registered sale deed vide Ext.1 executed by the admitted owners of the suit land i.e. Indumati and Monika along with the mutated R.o.R of the suit land in favour of the plaintiff is establishing her lawful title and possession over the suit land. In addition to that, the defendant being fully aware about the registered sale deed vide Ext.1 in favour of the plaintiff in respect of the suit land, no step has been taken by him (defendant) to challenge that said registered sale deed vide Ext.1. For which, the above conduct of the defendant itself is going to show that, the defendant has accepted that sale deed vide Ext.1 in respect of the suit land in favour of the plaintiff. It is very fundamental in Civil Law that, the issues of civil matters are to be decided on a balance of probabilities. That means, the case of Page 16 of 18 R.S.A No.381 of 2012 {{ 17 }} which side is more probable as per law, the case of that side shall become acceptable. On this aspect, the propositions of law has already been clarified by the Apex Court in the ratio of the following decision: 100 (2005) CLT (S.C) 147— Sona Bala Bora & Others Vs. Jyotirindra Bhatacharjee (Para No.21). “Suit—Issues of Civil Matter-To be decided on a balance of probabilities.” 14. On analysis of the facts and circumstances of the suit, as per the discussions and observations made above, when the claim of title and possession of the plaintiff over the suit land has become acceptable under law on the basis of the duly proved documents in her favour i.e. the registered sale deed and the R.o.R vide Exts.1 and 2 respectively and when the claim of title and possession of the defendant over the suit land through unregistered agreement and oral purchase has become inadmissible under law, then at this juncture, the question of interfering with the Judgments and decrees of the trial court and 1st Appellate Court through this 2nd appeal filed by the defendant does not arise. So, there is no merit in this 2nd Appeal filed by the appellant (defendant). The same must fail. 15. In the result, the appeal filed by the appellant is dismissed on contest. R.S.A No.381 of 2012 Page 17 of 18 {{ 18 }} 16. The Judgments and decrees passed by the trial court in C.S. No.136 of 2007 and 1st Appellate Court in R.F.A No.37 of 2011 are confirmed. (A.C. Behera), Judge. Orissa High Court, Cuttack. 30th November, 2023//Rati Ranjan Nayak// Junior Stenographer R.S.A No.381 of 2012 Page 18 of 18