O&M) Sunil Kumar and Others v. Ashok Kumar and Others
Case Details
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-3523-2011 (O&M) Sunil Kumar and Others . . . . Appellants Vs. Ashok Kumar and Others . . . . Respondents Reserved on: 15.01.2025 Pronounced on: 16.01.2025 **** CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA Argued by:- Mr. Vikram Singh Punia, Advocate for the appellants. Mr. Ashwani Gaur, Advocate and Ms. Shivangi Sharma, Advocate for the respondents. DEEPAK GUPTA, J. Plain%ff (now represented through his LRs) is in this Regular Sec- ond Appeal against the reversal, inasmuch as suit filed by him seeking decree for declara%on with consequen%al relief of permanent and mandatory injunc- %on regarding property in dispute, was decreed by the trial Court but accep%ng the appeal of defendant No.1 Ashok Kumar (respondent No.1 herein), the suit was dismissed. 2. In order to avoid confusion, par%es shall be referred as per their
Legal Reasoning
status before the trial Court. Trial Court record was called. Same has been pe- rused. 3. Admi1edly, one Jug Lal was owner of a plot measuring 280 sq. yds. situated within the Abadi Deh of Village Mukimpur, Tehsil and District Sonepat. A7er his death, the said plot was inherited by his four daughters namely Bhag- wani, Parmi, Nahni and Nahan% to the extent of ¼ share each. It is also the con- ceded posi%on that defendant No.2 Jog Raj (respondent No.2 herein) purchased NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document RSA-3523-2011 (O&M) 140 sq. yd. of the total plot (southern por%on) from Nahni and Nahan%; whereas plain%ff Ram Singh purchased remaining 140 sq. yd. shown by le1er ABCD in the site plan a1ached with the plan (northern por%on) from Bhagwani and Parmi by virtue of registered sale deed dated 15.05.1979. 4. It was alleged by the plain%ff that though defendant No.2 was owner of the Southern por%on of plot measuring 140 sq. yd. only, but he sold the en%re plot measuring 280 sq. yd. to defendant No.1 Ashok Kumar (respon- dent No.1 herein) by virtue of a sale deed dated 15.12.1998. Plain%ff challenged the said sale deed to the extent of his share of plot i.e. 140 sq. yd. shown by le1ers ABCD. 5. The stand taken by the defendants is that a7er purchasing dis- puted property i.e. por%on ABCD measuring 140 sq. yd. from Bhagwani and Parmi by virtue of sale deed dated 15.05.1979, plain%ff Ram Singh had sold the same to defendant No.2 Jog Raj by virtue of a sale receipt dated 07.10.1985 [Mark ‘J’] and had delivered actual physical possession thereof and this way, at the %me when defendant No.2 Jog Raj executed the sale deed dated 15.12.1998 in favour of defendant No.1 Ashok, said Jog Raj was exclusive owner in posses- sion of the en%re property. 6. Necessary issues were framed. Evidence produced by the par%es was taken on record. Trial Court upheld the case of the plain%ff and decreed the suit. However, the Appellate Court found that by virtue of a receipt dated 07.10.1985 Mark ‘J’, plain%ff Ram Singh had already sold the disputed property i.e. plot measuring 140 sq. yd. shown by le1er ABCD in site plan to defendant No.2 Jog Raj and as such, was le7 with no right therein. Although the Appellate Court found that receipt Mark ‘J’ was unstamped and unregistered document but it was no%ced that no objec%on was raised by the plain%ff regarding the re- ceipt being insufficiently stamped at the %me of its admission in evidence and that though the document Mark ‘J’ was unregistered and could not convey %tle but the same could be looked into for collateral purposes in view of proviso to Page 2 of 7 NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document RSA-3523-2011 (O&M) Sec%on 49 of the Registra%on Act. Appellate Court further found, based upon the evidence produced on record, that it is defendant No.1 Ashok Kumar, who was in actual physical possession of the suit property. It was also found that pos- session of the disputed plot measuring 140 sq. yd. shown by le1ers ABCD had been delivered by Ram Singh to Jog Raj way back in 1985. With all these find- ings, the judgment and decree passed by the trial Court was reversed and ac- cep%ng the appeal of defendant No.1, the suit was dismissed. 7. Assailing the decision of the first Appellate Court, it is contended
Legal Reasoning
by learned counsel for the appellant – plain%ff that receipt dated 07.10.1985 Mark ‘J’ relied by the defendants has not been proved on record in accordance with law; that plain%ff had empha%cally denied the execu%on of said receipt; that the said receipt being an unregistered document, could not convey any right %tle or interest in favour of defendant No.2 and so, the said document could not have been taken into considera%on. It is contended that well-rea- soned judgment passed by the trial Court has been wrongly reversed by the Ap- pellate Court. 8. I have considered submissions of both the sides and have perused the record carefully. 9. The en%re dispute is centered around the document dated 07.10.1985 Mark ‘J’, by virtue of which plain%ff Ram Singh is purported to have sold a plot measuring 3¼ Biswa, which he had earlier purchased from Bhagwani Devi and Parmi Devi daughters of Jog Lal, in favour of Jog Raj i.e. defendant No.2 and delivered possession thereof. It is also s%pulated in this document that this receipt was executed in the presence of Members of the Gram Panchayat. The receipt is not only purported to be signed by plain%ff but it is purported to be a1ested by numerous witnesses namely Dharam Singh, Sarpanch of Gram Pan- chayat, Mukimpur; Mehar Lal, Panch; Begh Raj, Member Panchayat; Hukam Chand, Ran Singh and Ram Singh. Although plain%ff in his tes%mony has denied to have sold the suit property to Jog Raj in 1995 but he has not disputed the fact Page 3 of 7 NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document RSA-3523-2011 (O&M) that Dharam Singh was the Sarpanch at the relevant %me in 1995 and used to thumb mark. The document has been placed on record by the defendant in his tes%mony. Appellate Court also no%ced that even Anil Kumar, the son of plain%ff Ram Singh had also executed an affidavit Ex.D6 so as to corroborate the version of the defendants that plot in ques%on had been purchased by his father from Bhagwani and Parmi by virtue of sale deed dated 15.05.1979 and that later on, he had sold the same to Jog Raj on 07.10.1985 for considera%on of ₹8,000/- and at that %me, possession was delivered to Jog Raj. This fact is not disputed before this court by Ld. Counsel for the appellant. 10. It has been rightly observed by the Appellate Court that though this document Mark ‘J’ purports to convey %tle in respect of an immovable property valuing more than ₹100/- and so it cannot be taken into considera%on for the purpose of conveying the %tle being an unregistered document but it can certainly be looked into for collateral purposes in view of proviso to Sec%on 49 of the Registra%on Act, which reads as under: “Effect of non-registra<on of documents required to be registered.— No docu- ment required by sec%on 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall— (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transac%on affec%ng such property or confer- ring such power, unless it has been registered: Provided that an unregistered document affec%ng immovable property and re- quired by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be regis- tered may be received as evidence of a contract in a suit for specific perfor- mance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evi- dence of any collateral transac(cid:17)on not required to be effected by registered instrument.]” NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document Page 4 of 7 RSA-3523-2011 (O&M) 11. In “S. Kaladevi v. V.R. Somasundaram and Others” 2011(1) LJR 712, it has been held by Hon’ble Supreme Court that unregistered document can be looked into for collateral purposes, as per Sec%on 49 of the Registra%on Act. It was held as under: 11. The main provision in Sec%on 49 provides that any document which is re- quired to be registered, if not registered, shall not affect any immovable prop- erty comprised therein nor such document shall be received as evidence of any transac%on affec%ng such property. Proviso, however, would show that an un- registered document affec%ng immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transac%on not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable prop- erty of the value of Rs. 100/- and more could be admi1ed in evidence as evid- ence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admi1ed in evidence as an evidence of any collateral transac%on not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be re- ceived in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Sec%on 49 of 1908 Act. 12. Recently in the case of K.B. Saha and Sons Private Limited v. Development Consultant Limited (2008) 8 SCC 564, this Court no%ced the following state- ment of Mulla in his Indian Registra%on Act, 7th Edi%on, at page 189:- "......The High Courts of Calcu1a, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registra%on under Sec%on 17 and which is not admissible for want of registra%on to prove a gi7 or mortgage or sale or lease is nevertheless admissible to prove the charac- ter of the possession of the person who holds under it......" Page 5 of 7 NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document RSA-3523-2011 (O&M) This Court then culled out the following principles:- "1. A document required to be registered, if unregistered is not admissible into evidence under Sec%on 49 of the Registra%on Act. 2. Such unregistered document can however be used as an evidence of collat- eral purpose as provided in the proviso to Sec%on 49 of the Registra%on Act. 3. A collateral transac%on must be independent of, or divisible from, the trans- ac%on to effect which the law required registra%on. 4. A collateral transac%on must be a transac%on not itself required to be ef- fected by a registered document, that is, a transac%on crea%ng, etc. any right, %tle or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registra%on, none of its terms can be admi1ed 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." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admi1ed in evid- ence as evidence of a contract in a suit for specific performance. 12. It is, thus, clear from the legal posi%on that though an unregistered document is not admissible into evidence, but it can be used as an evidence of collateral purpose as provided in the proviso to Sec%on 49 of the Registra%on Act. The collateral transac%on must be independent of, or divisible from, the transac%on to effect which, the law required registra%on. Thus, a collateral transac%on must be a transac%on not itself required to be effected by a re- gistered document, i.e., a transac%on crea%ng, etc. any right, %tle or interest in immovable property of the value of one hundred rupees and upwards. 13. Since in order to deliver possession of immovable property, the document is not required to be registered as per law, therefore, an unregistered sale deed can be taken into considera%on for collateral purpose i.e., delivery of possession. 14. Apart from above, learned Appellate Court also referred to other Page 6 of 7 NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document RSA-3523-2011 (O&M) overwhelming evidence on record showing the possession of Jog Raj on the suit property, which he later on delivered to defendant No.1 Ashok Kumar a7er exe- cu%on of the sale deed dated 15.12.1988. Learned counsel for the appellant could not assail the finding of the Appellate Court as far as possession of defen- dant on the suit property is concerned. He has also failed to convince this Court that in case plain%ff had not sold the property to defendant Jog Raj in 1985, how defendant was in possession thereof as was proved during evidence. Plain- %ff was unable to prove his possession over the suit property as per evidence duly discussed by the Appellate Court. 15. In the aforesaid facts and circumstances, the Appellate Court did not commit any error in coming to the conclusion that document Mark ‘J’, could have been looked into for collateral purposes in view of proviso to Sec%on 49 of the Registra%on Act. 16. In “Ude Singh and Ors. v. Ram Chander” 2009 (1) RCR (Civil) 41, it has been held by this Court that plain%ff is estopped from reclaiming possession on the ground that there was no valid sale deed, when sale deed was an unreg- istered receipt. It was also held that no %tle could be conferred on the basis of such an unregistered deed but Sec%on 115 of the Evidence Act estopped the plain%ff from claiming possession in lieu thereof. 17. On account of the en%re discussion as above, this Court does not find any reason to interfere in the well-reasoned findings as recorded by the first Appellate Court. As such, holding the present appeal to devoid of any merit, the same is hereby dismissed. 16.01.2025 Nee ka Tuteja Whether speaking/reasoned? Whether reportable? Yes Yes (DEEPAK GUPTA) JUDGE NEETIKA TUTEJA 2025.01.16 16:43 I attest to the accuracy and integrity of this document Page 7 of 7