Nagen Hazarika (Deceased) Through Lrs. Vs. Smt. Manorama Sharma - Court Judgment

Excerpt:
- - rustam khan reported in air 1919 allahabad 43 to contend that lawful possession itself is a good right as against all but the true legal owner and that such a right can be protected by the court. lawful possession of immovable property in a situation where ownership in an absolute term is yet to be established confers good title on the possessor as against the whole world except the true legal owner of such property. the limited title of the plaintiff on the basis of her possession on the suit land, therefore, has to be protected by the court until a better version of such title, i. ranjan gogoi, j.1. this second appeal was filed by the defendant, who had lost in both the courts below. the preset appellants are legal heirs of the deceased appellant-defendant who expired during the pendency of the second appeal. at the time of admission of this appeal, the following substantial question of law was framed by this court:whether the plaintiffs husband had acquired any right, title over the land by virtue of unregistered deed of sale concerning immovable property worth more than rs. 100/-?in view of misc. case no. 169 of 2001 filed by the respondents in the appeal and after hearing the learned counsel for the parties and further on due consideration of the questions involved in the appeal, the court is of the view that the following question of law should be framed as an.....

Judgment:

Ranjan Gogoi, J.

1. This Second Appeal was filed by the defendant, who had lost in both the Courts below. The preset appellants are legal heirs of the deceased appellant-defendant who expired during the pendency of the Second Appeal. At the time of admission of this Appeal, the following substantial question of law was framed by this Court:

Whether the plaintiffs husband had acquired any right, title over the land by virtue of unregistered deed of sale concerning immovable property worth more than Rs. 100/-?

In view of Misc. Case No. 169 of 2001 filed by the respondents in the appeal and after hearing the learned Counsel for the parties and further on due consideration of the questions involved in the appeal, the Court is of the view that the following question of law should be framed as an additional question, requiring the Court's determination -

Whether the plaintiffs possessory right, title can be interfered with by the defendant merely on the basis of the Sale Deed Ext. Ka executed by the attorney on the basis of an unregistered power of attorney (Ext. Ga).

2. The pleaded case of the parties may briefly be noticed at the outset.

The respondent in the Appeal, i.e. the plaintiff in the suit is the wife of one Haladhar Sharma. In the suit held, the plaintiff claimed that her husband is the sole owner ol a plot of land measuring I Bigha covered by Dag No. 32 (old) 153 (new) of Patta No. 93 (old) 54 (new) of Village Hatigarh under Beltola Mouza within the city of Guwahati. According to the plaintiff, out of the aforesaid plot ol land ol I Bigha, 2 Ks 10 Ls was sold by her husband to one Joginder Singh by Ext. 2 in the year 1970-71. It is , the further case of the plaintiff that subsequently Jogider Singh by another sale deed (Ext. 1) re-conveyed the said property to the husband of the plaintiff and thereafter left Guwahati to settle down in Delhi. It is also the pleaded case of the plaintiff that her husband had renounced the world and had become Sage/Monk and that though she was in possession of the suit land measuring 2 Ks 10 Ls, the defendant had claimed the suit land to be his own and also threatened to evict her from the said land. In the plaint filed, it was further stated that the defendant had instituted a proceeding under Section 145 of the Code of Criminal procedure before the learned Executive Magistrate and in course of the said proceeding had produced a power of attorney executed by Joginder Singh in favour of one Amrik Singh authorizing the said person to sell the suit land. In the said proceeding, the defendant had also produced a sale deed executed by the aforesaid Amrik Singh in favour of the defendant relating to the suit land. As the title of the plaintiff had become clouded, the suit out of which this Appeal has arisen was filed praying for a decree of declaration of right, title and interest of the plaintiff over the suit land; for confirmation of possession; for permanent injunction and also for a declaration that the power of attorney executed in favour of Amrik Singh was void and inoperative in law. In so far as the said power of attorney is concerned, it was the specific case of the plaintiff that Joginder Singh having died earlier than the date of execution of the power of attorney, the said document was not a genuine document.

3. The deceased defendant contested the suit by filing his written statement. Apart from denying the statements made in the plaint filed, it was the specific case of the defendant that the suit land was purchased by him on 26-6-1974 by a registered sale deed (Ext. Ka), which was executed by Amrik Singh, the attorney of the landowner Joginder Singh, it was also the case of the defendant that he has been in possession of the suit land since the date of its purchase.

4. On the rival pleadings of the parties the learned trial Court framed as many as 5 issues for trial which may be conveniently set out herein below:

1. Is there any cause of action for the suit?

2. Whether the suit is maintainable ?

3. Whether the plaintiff acquired right, title and interest by way of transfer by executing a sale deed ?

4. Whether the plaintiff is entitled to a decree of the suit ?

5. What relief/reliefs the parties entitled to ?

It may be significant to note at this stage that no issue with regard to possession of the suit land was framed by the learned trial Court.

5. In the course of the trial the plaintiff examined 3 witnesses in support of her case and exhibited as many as 6 documents. While Ext. 1 is the deed of re-conveyance of the land in favour of the plaintiff by Joginder Singh, Ext. 2 is the deed by which the suit land was initially purchased by the said Joginder Singh. The other exhibits brought on record by the plaintiff including some revenue records and receipts showing payment of municipal tax, by which documents the plaintiff sought to establish that she was the owner of the suit land and had all along remained in possession of the land.

The defendant in the suit, examined two witnesses including himself in support of his case and exhibited certain documents out of which of particular significance would be Ext. Ka. i.e. sale deed executed by the attorney Amrik Singh in favour of the plaintiff and Ext. Ga, the power of attorney executed by Joginder Singh in favour of Amrik Singh.

6. Both the Courts below on due consideration of the rival cases and after elaborate consideration of the oral and documentary evidence on record took the view that the plaintiffs case stood proved and, therefore, the plaintiff was entitled to a decree of declaration of her right, title and interest over the suit land; for confirmation of possession and for permanent injunction along with the costs of the suit. Aggrieved, this Second Appeal has been filed in which the two questions of law as formulated are required to be answered by the Court so as to determine the rights of the respective parties.

7. Before embarking upon the necessary discussion that will be called for in the present Appeal, this Court may briefly note the reasoning adopted by the learned Courts below in coming to the concurrent decision that the plaintiffs suit should be decreed. Both the Courts below conclusively held that possession of the suit land by the plaintiff was proved and established on the materials on record. The learned Courts below also accepted the fact that Ext. 1 had proved and established that the suit land was reconveyed to the plaintiffs husband by Joginder Singh, whereafter, the plaintiff had remained in possession of the suit land. In so far as the case projected by the defendant is concerned the learned Courts below found that the power of attorney in favour of Amrik Singh was executed by one Joginder Singh Khanna though the land was sold by the plaintiffs husband to one Joginder Singh. Both the learned Courts below also took the view that the defendant had not proved that Joginder Singh and Joginder Singh Khanna were one and the same person. That apart both the learned Courts below also took note of the fact that in the power of attorney executed in favour of Amrik Singh mention was made of land covered by Patta No. 93 (old and 58 (new) of Village Hatigaon whereas admittedly the suit land is under Patta No. 93 (old) and 54 (new). Additionally the learned Courts below also took into account the fact that though it was urged by the defendant that Joginder Singh was alive as against the plea of the plaintiff that he was dead, the defendant had not taken any steps to bring the aforesaid Joginder Singh as a witness in the case. On the said basis and on the further finding that the plaintiff had proved her possession over the suit land by proof of requisite documents, i.e. revenue records and municipal tax paying receipts, the learned Courts below thought it proper to decree the plaintiffs suit.

8. Sri. H. Deka, learned senior counsel appearing for the appellant has vehemently contended that the basis on which the plaintiff claimed title is the purported sale deed (Ext. 1) executed by Joginder Singh re-conveying the property to the husband of the plaintiff. The said sale deed was not a registered instrument and, therefore, under Section 54 of the Transfer of Property Act, no title could be conveyed to the plaintiff on the strength of Ext. 1. To meet the counter argument of Sr. L. Talukdar, learned Counsel for the respondent-plaintiff, that what was declared by the Courts below is the possessory title of the plaintiff, Sri Deka has contended that possession of the parties was not an issue in the suit and no specific issue on the aforesaid score was framed in course of the trial. Sri Deka has further submitted that it is the specific case of the appellant-defendant in the written statement filed that the appellant-defendant was in possession of the suit land after purchase.

9. The argument advanced on behalf of the appellant-defendants has sought to be controverted by Sri Talukdar by contending that even if it is to be accepted that no title was re-conveyed to the plaintiff on the strength of Ext. 1, both the learned Courts below found that plaintiff to be in possession and, therefore, the decree passed by the learned Courts below is really a decree of declaration of the possessory title of the plaintiffs and other consequential reliefs. In this regard Sri Talukdar has relied on a decision of the Allahabad High Court in the case of Bazmir Khan v. Rustam Khan reported in AIR 1919 Allahabad 43 to contend that lawful possession itself is a good right as against all but the true legal owner and that such a right can be protected by the Court. Sri Talukdar has also relied on a decision of the Apex Court reported in AIR 2001 SC 2942 to contend that the finding of the learned Courts below with regard to possession of the plaintiff is a concurrent finding of fact, which is not open to interference in the Second Appeal. That apart, reliance has been placed by Sri Talukdar on a judgment of this Court in the case of Sardar Bir Singh v. Noor Ahmed reported in AIR 1972 Gau 122 to contend that the power of attorney executed in favour of Amrik singh (Ext. Ga) not being a registered instrument, the attorney holder would have no right to sell the suit land to the defendant even if it is assumed that Ext. Ga is a genuine document.

10. Section 54 of the Transfer of Property Act, 1882 makes it clear that transfer of immovable property of the value of Rs. 100/- or more can be made only by registered instrument. Section 49 of the Registration Act, 1908 makes it clear that a document required to be registered under the provisions of the Transfer of Property Act, 1882 cannot be adduced in evidence of arty transaction affecting such property unless it has been registered.

11. In the present case Ext. 1, admittedly is not a registered instrument. The said document, therefore, cannot be legally admissible and acceptable evidence of the re-conveyance of the property by Joginder Singh to the plaintiffs husband. Notwithstanding the requirement of registration and the effects of non-registration, as noticed above and as spelt out by the provisions of the T.P. Act. 1882 and the Registration Act, 1908, it is always open for a person claiming title to prove such title on the basis of other evidence. In the present case though the plaintiff had examined other witnesses, the said witnesses were the scribe of Ext. 1 and an attesting witnesses of Ext. 1 who proved the execution of Ext. 1. If Ext. 1 was not legally admissible in evidence, the evidence of the scribe and the attesting witnesses, will be of little consequence. In such a situation, the Court will have to hold that the first question formulated for determination in the Second Appeal has to be answered by holding that no title had been conveyed to the plaintiff husband on the basis of the unregistered deed-Ext. 1.

12. 'Title' is a broad expression in law, which need not always be understood as akin to ownership. The expression 'title' conveys different forms of right to a property, which can include a right to possess such property. Lawful possession of immovable property in a situation where ownership in an absolute term is yet to be established confers good title on the possessor as against the whole world except the true legal owner of such property. Such 'title' has to be recognized by the Courts against all except the true owner. In the present case, the concurrent finding of fact recorded by both the learned Courts below with regard to possession of the suit land is in favour of the plaintiff. The said finding of fact has been recorded by the Courts below on an evaluation and consideration of the evidence and materials on record, which consideration does not disclose any fundamental irregularity or illegality. Though no specific issue of possession was framed yet a reading of the pleadings of the respective parties make it clear that both the parties had asserted possession of the suit land in their respective favour. Both the parties, therefore, knew that the issue of possession of the suit land was involved. In such a situation, merely because no issue was specifically framed with regard to possession, the said fact by itself will not warrant a finding that the learned Courts below ought not to have come to any decision with regard to the possession of the suit land by either of the parties. If possession has been found in favour of the plaintiff by both the learned Courts below and if this Court is inclined to take the view that such a finding has been correctly reached on due consideration of the evidence and materials on record, the said finding must be allowed to prevail by the Second Appellate Court. The limited title of the plaintiff on the basis of her possession on the suit land, therefore, has to be protected by the Court until a better version of such title, i.e. ownership is claimed and established in accordance with law before the appropriate forum.

13. For the aforesaid reasons, I am of the view that the judgment and decree passed by the learned Courts below needs to be affirmed with the slight modification that the declaration of title in favour of the plaintiff shall be understood to be one of possessory title. The other consequential reliefs granted in favour of the plaintiff by the learned Courts below shall stand affirmed.

14. In the result, the Second Appeal has to be dismissed which I hereby do. However, in the facts and circumstances of the case, I left the parties to bear their own costs.