Vide sale deed executed by the petitioner with the respondents one chaunk of land was sold. The defendants-respondents were to develop a colony on the said land. On the same day an agreement was executed by the respondents with the petitioner that after the development of the colony and before affecting any sale of the said plot 1000 sq. yards shall be sold to the petitioner. The said agreement to sale and the sale deed were executed on 17.7.2002. The property was situated at Pilibhit Bisalpur Road, Vasundhara Colony, Village Pakariya Naugawan Tehsil and District Pilibhit.
Plaintiffs had filed a suit seeking enforcement of agreement dated 17.7.2002 and along with suit an application under Order 39 Rule 1 & 2. Trial Court was filed. Trial Court after hearing the parties directed the respondents-defendants that out of the said land 1000 sq. yards of the land shall not be sold. Aggrieved by this order an appeal was preferred before the Appellate Court. Appellate Court while hearing the parties allowed the appeal on the ground that the document which is construed to be an agreement to sale is not registered as provided under section 17 of the Registration Act.
Finding has been recorded that in absence of registration this document cannot be admitted in evidence as such the order of the Trial Court was set aside on this ground.
Heard learned counsel for the parties and perused the material on record.
The only ground on the basis of which the appeal has been allowed is that the document in question which is construed to be an agreement of sale is a memorandum of agreement to sale which is required to be registered under the Registration Act. Since it is the admitted case of the parties that this document is not registered therefore the question that arise for consideration is that what is the effect of non registration of the said documents. Reference is made to Section 49 of the Act which provides the effect of non registration of the documents which are required to be registered. Proviso to the said section also provides that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1982, to be registered may be received as evidence of a contract in a suit for specific performance. Even if it is assumed that the document is not registered it can be used as a piece of evidence in a suit for specific performance. The effect of registration and non registration of the document is contained in Chapter X of the Registration Act. Section 47 of the Act provides that registered document shall operate from the date of its execution and not from the date of its registration. Result is that if two registered documents are executed by the same person in respect of the property by two different persons at different times, the one which was executed first has priority over the other, although the former was registered subsequently to the latter.
In the present case, the document is unregistered which can be used as piece of evidence. Findings recorded by the learned Trial Court cannot be accepted and the order is liable to be set aside.
Learned counsel for the respondents states that the suit in the present form is not maintainable as in essence the petitioner seeks an order of injunction against the property which is not specified.
Considering the facts and circumstances of the case, the writ petition is allowed. The order impugned is hereby set aside. The matter is remanded back to the Trial Court who shall frame a preliminary issue with respect to the maintainability of the suit and shall proceed to decide the same in accordance with law.
Order Date :- 23.11.2011 RKS/