Judgement reserved on 17.2.2021 Judgement delivered on 12.4.2021
Case :- SECOND APPEAL No. - 695 of 2015
Appellant :- Dulare
Respondent :- Nandram And 4 Ors.
Counsel for Appellant :- Raj Kumar
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellant.
2. The present second appeal has been filed by the plaintiff-appellant challenging the judgement and decree dated 15.2.2014 passed by Civil Judge (Jr. Division), Kalpi, Jaluan whereby the Original Suit No. 102 of 2007 (Dulare Vs. Sri Nand Ram & others) of the plaintiff-appellant has been dismissed and the judgement dated 21.3.2015 passed by the District Judge, Jalaun at Orai dismissing the Civil Appeal No. 24 of 2014 filed by the appellant.
3. The plaintiff-appellant instituted a suit for decree of permanent injunction against the defendant-respondents restraining the defendant- respondents from interfering in the peaceful possession of the plaintiff- appellant from the plot described as Aa, Ba, Sa, Da in the plaint.
4. The suit has been instituted by the plaintiff-appellant inter-alia on the ground that he has purchased a plot from one Jageshwar Dayal Dwivedi situtated in Village Akbarpur-Itaura Pargana Kalpi, District Jalaun measuring 90 ft. from north to south and 45 ft. from east to west in the year 1990 and had paid sale consideration before the witnesses, but due to shortage of fund, he could not get the sale deed registered. He got a notary deed in respect of sale of the aforesaid plot. On the plot so purchased, the plaintiff-appellant had constructed his house over half of the plot measuring 45ft.X45ft., which is numbered as House No. 96 and the remaining half of the plot was being used by him for tethering the animals, keeping cow dung and throwing the garbage. The defendant- respondents are trying to remove the peg and dispossess the plaintiff- appellant from property in dispute.
5. The defendant contested the aforesaid suit by filing written statement contending inter-alia that the disputed plot which is part and parcel of the Gata No. 657 area 4.561 hectare have been purchased by defendant-respondent No. 2-Jageshwar s/o Gaurishankar for sale consideration of Rs. 3000/- by registered sale deed, and he was delivered the possession of the aforesaid plot on 7.8.2007. The defendant- respondent No. 2 further pleaded that he has constructed a boundary wall around the plot with the consent of Jageshwar about 20 years ago. The plaintiff-appellant wants to encroach the plot and has instituted a suit stating a false cause of action which led the filing of the suit. The defendant-respondent No. 2 also filed counter claim wherein he has prayed for injunction restraining the plaintiff-appellant from interfering in peaceful possession of the property in dispute.
6. The trial court on the basis of pleadings between the parties framed as many as 6 issues. The issue No. 1 was as to whether the plaintiff- appellant is owner and in possession over the plot in dispute. The trial court in deciding the said issue after appreciating the evidence on record held that the notarial deed in which the sale of plot in favour of plaintiff- appellant has been recorded was forged document. The trial court while recording the said finding has noticed Section 9 and 54 of the Transfer of Property Act, according to which, any property value of which is more than Rs. 100/- is transferred by registered document. The trial court further noticed that the DW-4-Jageshwar Dayal Dwivedi appeared as witness and stated that he had sold plot of 45ft.X45ft. to the plaintiff- appellant for a sale consideration of Rs. 3000/-. The trial court further noticed that the two witnesses namely Bhagwan Din and Har Govind of the notarial deed were not produced before the court, and after considering the statement of PW-2-Balkhandi and PW-3-Shiv Charan, which according to the trial court was not consistent, it held notary deed to be forged document.
7. The trial court on the question of possession after noticing the statement of DW-4- Jageshwar Dayal Dwivedi found that the plot in question was sold by Jageshwar to the defendant-respondent No. 2. The trial court further noticed that the east of the disputed plot is adjacent to the house of the plaintiff-appellant, but no door on the west side of the house of the plaintiff-appellant opens towards the east side of the plot. The trial court on recording the aforesaid finding has also considered the commission report 21-ga-2/1. The trial court further considered in detail the statement of PW-1-Balkhandi and found that the plot is being used by the defendant-respondent for tethering the cow and for throwing the garbage and also is being used for preparing cow dung cake. On the basis of aforesaid finding, the trial court found that the suit of the plaintiff- appellant is liable to be dismissed and the counter claim of the defendant- respondent No. 2 also deserves to be decreed.
8. The plaintiff-appellant preferred appeal against the judgement of the trial court dated 15.2.2014. The appellate court also after noticing various provisions of Transfer of Property Act, 1882 namely Sections 9, 53-A, 54 of Transfer of Property Act and Sections 17 and 49 of the Registration Act, 1908 held that notarial deed paper No. 13-C was executed in violation of Section 54 of the Transfer of Property Act and Sections 14 and 17 of the Registration Act. The appellate court also after appreciating the finding returned by the trial court on the issue of possession found that the defendant-respondent No. 2 is in possession over the property in dispute.
9. Challenging the aforesaid judgement and orders passed by the courts below, counsel for the appellant has submitted that the trial court as well as appellate court have misread the evidence of DW-4-Jageshwar Dyal Dwivedi by whom both the parties namely the plaintiff-appellant as well as the defendant-respondent No. 2 has purchased the plot in dispute. He submitted that both the courts below have also erred in law in not appreciating the fact that the plaintiff-appellant had proved that due to lack of funds, he could not get the sale deed registered though it is proved on record as is evident from the statement of PW-4-Jageshwar Dyal Dwivedi that the property in dispute was sold to the plaintiff-appellant.
10. Be that as it may, it is not in dispute that no sale deed with regard to the property in dispute was executed and was registered. It is the case of the plaintiff-appellant that he had got a notarial deed executed in respect of the property in dispute. The appellate court as well as the trial court after noticing the various provisions of Transfer of Property Act and the Registration Act held that the execution of the notarial deed is in violation of Section 54 of the Transfer of Property Act and Sections 14 and 17 of the Registration Act, according to which, the transfer of a property valued above Rs. 100/- can be transfered only by registered sale deed. Section 49 of the Registration Act provides the consequences of non registration of the deed which are compulsory registrable i.e. no tranfer of right or title can be effected by mode of such unregistered deed. The law on the issue that a sale of property valued above Rs. 100/- can be effected only after it has been duly registered as provided under Section 17 of the Indian Registration Act is settled.
11. In the instant case, it is the case of the plaintiff-appellant that he has purchased the property in dispute for a sale consideration of Rs. 6,000/- meaning thereby as per the case of the plaintiff-appellant the value of property in dispute is above Rs. 100/-, therefore, such property can be transferred only by registered sale deed. Further the trial court as well as the appellate court also recorded a finding that the two witnesses who are alleged to be the witnesses of the notarial deed had not been produced as witnesses, therefore, the notarial deed is a forged document. This Court finds that the finding returned by the courts below on the issue of ownership in respect of property in dispute that the plaintiff-appellant has failed to prove his title over the property in dispute is based upon proper appreciation of law and facts on record and there is no illegality in the findings returned by the trial court as well as appellate court on the issue of title.
12. On the issue of possession also, both the courts below after noticing the evidence on record and also the commission report found that the plaintiff-appellant is not in possession over the property in dispute. In recording the aforesaid finding, both the courts below considered the commission report as well as the fact that no door on the west side of the house of the plaintiff-appellant opens towards the east of the plot in dispute. It is also noticed by the courts below that the defendant- respondent No. 2 has got constructed a boundary wall about 20 years ago around the plot and the plot is being used by the defendant-respondent for tethering his cow, throwing garbage and for preparation of cow dung cake. The findings returned on the issue of possession by the courts below is a finding of fact and counsel for the plaintiff-appellant also could not point out any perversity in the aforesaid finding.
13. Thus, for the reasons given above, the submissions advanced by learned counsel for the appellant are devoid of merit. Accordingly, the findings returned by both the courts below are finding of fact and no substantial question of law arises in the present second appeal which needs adjudication by this Court.
14. Consequently, the second appeal lacks merit and is dismissed, without any order as to costs.
Order Date :- 12.4.2021 Jaswant