Sube Singh Vs. Dalip Singh and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - however, legal position is clear law that a document like the sale-deed in the present case, even though not admissible in evidence can be looked into for collateral purposes. there is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question. 1 supported the impugned order for the reasons given therein as well as placed reliance on a judgment of the allahabad high court in the case of dharampal gir and anr.vinod k. sharma, j.1. cm. no. 24351-cii of 2006.for the reasons stated in the application, the cm. is allowed and the case is restored to its original number.2. civil revision no. 4124 of 2002.the present revision petition has been filed against the order dated 20.3.2002 passed by the civil judge (jr. divn.) narnaul, vide which the agreement dated 2.11.1983 showing that transfer of the immovable property for sale consideration of rs. 15,000/- (rs. fifteen thousand) in favour of yad ram, father of the petitioner herein by sheo chand father of respondent no. 1 herein has been held to be inadmissible in evidence for want of registration. in support of this order, the learned trial court placed reliance on a judgment of the madras high court in the case of yandemma v. vankat a.i.r. 1947 madras 168.3. mr. jai veer yadav, learned counsel appearing on behalf of the petitioner contends that the impugned order cannot be sustained in view of section 49 of the registration act, which reads as under:49. effect of non-registration of documents required to be registered.- no document required by section 17 or by any proviso 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 transaction affecting such property or conferring such power, unless it has been registered:provided that an unregistered document affecting immovable property and required by this act or the transfer of property act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under chapter ii of the specific relief act, 1877 (1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.4. the contention of the learned counsel for the petitioner is that in view of proviso added to section 49 of the registration act, the petitioner should be allowed to get the document exhibited as it can be used for the purpose of collateral transaction. in support of this contention, he placed reliance on the judgment of the hon'ble supreme court in the case of bonder singh and ors. v. nihal singh and ors. : [2003]2scr564 , wherein it has been held as under:the main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. the sale-deed dated 9.5.1931 by fakir chand, father of the defendants in favour of tola singh, the predecessor-in-interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. the only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. under the law a sale-deed is required to be properly stamped and registered before it can convey title to the vendee. however, legal position is clear law that a document like the sale-deed in the present case, even though not admissible in evidence can be looked into for collateral purposes. in the present case, the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land. the sale-deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. it is significant to note that the sale-deed is dated 9.5.1931 and fakir chand died somewhere in the year 1949-50. during his lifetime fakir chand never disrupted plaintiffs' title or possession of the suit land. there is other reliable evidence on record which establishes that the plaintiffs have been in continuous possession of the land in question. there is notice dated 16.4.1956 exhibit p-6. the notice was issued on behalf of the defendants and is addressed to the predecessor-in-interest of the plaintiffs. by the notice the defendants called upon the plaintiffs to hand over possession of the suit land to them. according to the notice, the plaintiffs were trespassers on the suit land and were liable to hand over its possession to the defendants. this notice is an admission on the part of the defendants that the plaintiffs were in possession of the suit land at least on the date of the notice i.e. 16th april, 1956. the notice was followed by an application dated 8th may, 1956 (exhibit p-3), filed by the defendants under section 58 of the madhya bharat land revenue and tenancy act, 1950 before the revenue authorities. in the said application the defendants admit that the land in question was in possession of the plaintiffs since the lifetime of their father. it is further admitted that the land was being cultivated by the plaintiffs. it was prayed in the said application that plaintiffs be declared trespassers over the suit land and the possession of the land be given to the defendants. in their reply to the application, the present plaintiffs denied the allegation that they were trespassers on the suit land, they refer to sale-deed of 9.5.1931 by fakir chand in favour of their predecessor. thus the plaintiffs were all along asserting that they were in possession of the land in their own right. the tehsildar vide his order dated 3rd october, 1959 dismissed the said application of defendants. he relied on an admission on the part of poonam chand, eldest son of fakir chand that the present plaintiffs were in possession for the last 26-27 years. relying on the said statement the revenue authorities held that since possession of the present plaintiffs was continuing for last 26-27 years they could not be dispossessed from the suit land. the application of the defendants was dismissed. the defendant filed an appeal against the said order which was also dismissed on 6.8.1962. a copy of the order of the tehsildar is exhibit p-8 while a copy of the order of the appellate authority i.e. s.d.o. is exhibit p-9. these judgments of the revenue authorities establish that at least till 1962 the plaintiffs were in possession of the suit land. they also totally nullify the assertion of the defendants in their written-statement in the present suit that they had taken possession of the suit land in 1957-58. if they had taken possession of the suit land in 1957-58 why were they pursuing the matter before the revenue authority till 1962 when the appeal was contested before the s.d.o. and the decision of the s.d.o. was given on 6.8.1962.on the other hand, learned counsel appearing for respondent no. 1 supported the impugned order for the reasons given therein as well as placed reliance on a judgment of the allahabad high court in the case of dharampal gir and anr. v. angoori devi : air1981all164 to contend that the unregistered sale-deed is inadmissible in evidence.5. i have considered the arguments raised by the learned counsel for the parties.6. it cannot be disputed that the sale-deed dated 2.11.1983 is inadmissible in evidence for want of registration. however, it was open to the petitioner to prove the said document on record and use the same for collateral transaction, if any. accordingly, the petitioner could not have been debarred from proving the said document merely for want of registration in view proviso to section 49 of the registration act.accordingly, this revision petition is allowed, the impugned order is set aside and the petitioner is allowed to prove the said document. the admissibility and the value of the evidence would be considered by the trial court at the time of final hearing.the parties through their counsel are directed to appear before the trial court on 15.3.2007.