2004(1) ALL MR 340
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.T. KHARCHE, J.
Gulamuddin S/O Hisamuddin ... Dead Through L.Rs.- & Ors.Vs.Mohd. Bashiruddin Mohd. Saifuddin & Anr.
Second Appeal No.122 of 1990
12th September, 2003
Petitioner Counsel: Mr. J. J. CHANDURKAR
Respondent Counsel: Mr. NITIN VYAWAHARE
Constitution of India, Art.226 - Concurrent finding of facts - Interference with - Sale - Courts below recording concurrent finding of fact that parties acted on terms and conditions mentioned in sale deed - No reason for the High Court to interfere into the concurrent findings of facts. Transfer of Property Act (1882), S.54. (Para 14)
(B) Evidence Act (1872), S.90 - Presumption as to documents 30 years old - Presumption applies only to document which bears the signature of writer or witnesses and not to unsigned or anonymous papers - Presumption only relates to the signature on the document.
The presumption u/s.90 applies to the documents proved to be 30 years old or more and the documents must come from proper custody. The presumption is discretionary and so where a document is suspicious on the face of it or mutilated, the Court may refuse to make it. It may call upon the party to offer other proof. The presumption applies only to the document which bears the signature of writer or witnesses and not to unsigned or anonymous papers. Presumption only relates to the signature on the document, i.e. to its genuineness though it does not involve any presumption that its contents are true and that they have been acted upon. 30 years is to be counted from the date the document purports to bear. The presumption applies to the original documents. In the present case, the document unregistered sale-deed dated 25-3-1947 is 30 years old document and it was duly proved by the plaintiff and it was produced from the proper custody and thus its contents have not been denied specifically by defendants no.1 or 2 and, therefore, is perfectly admissible in evidence. [Para 18]
Raghunath Vs. Kedarnath, AIR 1969 SC 1316 [Para 7,15]
Chandulal Asharam Travadi Vs. Bai Kashi, AIR 1939 Bom. 59 [Para 8,16]
Jahuri Shah Vs. Dwarika Prasad Jhunjhunwala, AIR 1967 SC 109 [Para 9,17]
JUDGMENT :- This second appeal is directed against the judgment and decree dated 02-01-1990 passed by the 3rd Additional district Judge, Amravati, in Regular Civil Appeal No.52 of 1984 by which the Appellate Court confirmed the judgment and decree dated 21-12-1983 passed by the Civil Judge, Senior Division, Achalpur, in Regular Civil Suit No.149 of 1979 directing original defendants no.1 and 2 to deliver the vacant possession of the suit premises to the original plaintiff.
Mohammad Saifuddin instituted regular civil suit for possession on the strength of his title against his own brother original defendant no.1 and the subsequent purchaser-original defendant no.2. It is contended that the plaintiff had purchased the suit premises from one Abdul Wahab on 25-3-1947 by virtue of unregistered sale-deed (Ex.37) and the erstwhile owner had delivered the possession of the suit house to him on the same day. It is contended that one Jalaluddin was inducted as a tenant in the suit house on behalf of Mohammad Saifuddin and the Rent-Note dated 27-9-1972 was also executed by the tenant. It is contended that original defendant no.1 Naruddin took forcible possession of the suit house from the tenant in the month of May, 1974 and thereafter he had executed the Sale-deed dated 04-02-1976 in favour of defendant no.2 Gulamuddin during the pendency of the suit. The plaintiff Saifuddin died during the pendancy of this Appeal and his legal heirs were brought on record.
4. The defendant no.2 combated the claim of the plaintiff by filing written statement and contended that the sale-deed dated 25-3-1974 and the Tent-Note are fabricated documents. He contended that defendant no.1 was in continuous possession of suit house since 28 years and he sold it to him. He denied the title of the original plaintiff to the suit house and has come up with a case that he had purchased the suit house from defendant no.1 on 04-02-1976 by virtue of the registered Sale-deed and, therefore, he has become the exclusive owner of the suit house.
5. On the pleadings of the parties, the trial Court framed the issues, considered the oral and documentary evidence adduced by the parties in support of their contentions and recorded the findings that the plaintiff is the owner of the suit house, that he had let out the suit house to Jalaluddin and, as such, he is entitled to the possession on the strength of proved title. The trial Court also held that defendant no.1 took illegal possession of the suit house sometime in May, 1974 in absence of Jalaluddin and thereafter defendant no.1 gave its possession to defendant no.2. The trial Court negatived the contention of defendant no.1 that he is the owner of the suit house and that defendant no.2 has purchased the same from defendant no.1 by virtue of agreement of sale and was in possession of the suit house on account of part performance of the agreement of sale. Consistent with these findings, he decreed the suit for possession and directed the defendants to deliver the possession to the plaintiff.
6. The unsuccessful defendant no.2 carried an appeal to the District Court. The appellate Court confirmed the findings and the conclusions drawn by the trial Court and dismissed the appeal no.02-01-1990. It is this judgment and decree of the appellate Court which is under challenge in this Appeal. The original defendant no.2/appellant died during the pandency of this appeal and his legal heirs have been brought on record.
7. Mr. Chandurkar, learned counsel for the original plaintiff contended that the unregistered sale-deed dated 25-3-1947, which is said to have been executed by Abdul Wahab in favour of the original plaintiff, is not admissible in evidence and both the Courts have committed an error of law in drawing the conclusion that the plaintiff has established his title to the suit house by virtue of this unregistered sale-deed ad the Rent-Note dated 27-9-1972. He contended that as per Section 54 of The Transfer of Property Act, 1882 (for short T.P. Act), the suit house does not stand transferred in the name of the plaintiff as the so-called sale-deed dated 25-3-1974 was not registered and the said transaction is hit by Section 49 of the Registration Act, 1908 (for short the Registration Act). In support of these contentions, he relied on the decision of Supreme Court in Raghunath Vs. Kedarnath - AIR 1969 SC 1316.
8. Mr. Chandurkar, learned counsel further contended that even the unregistered sale-deed cannot be made admissible in evidence under Section 90 of the Indian Evidence Act, 1872 (for short Evidence Act) because though the said unregistered sale-deed has been exhibited, there is no proof adduced in relation to its contents and, therefore, the said unregistered sale-deed is liable to be ignored. He contended that the defendant no.1 was in possession of the suit house for a long period of 28 years and he had executed a registered sale-deed on 04-2-1976 in favour of defendant no.2 on the basis of which the latter has acquired exclusive title to the suit house. He, therefore, contended that both the Courts below have committed an error in granting decree for possession in favour of the plaintiff. In support of these submissions, he relied on the decision of this Court in Chandulal Asharam Travadi & Ors. Vs. Bai Kashi - AIR 1939 Bom. 59.
9. Mr. Vyawahare, learned counsel, for the respondent/plaintiff contended that no substantial question of law arises in this appeal. He pointed out that the defendant no.1 did not contest the suit and had chosen to remain absent and also did not file his written statement. He further contended that the defendant no.2 did not deny the title of the plaintiff specifically in his written statement and, therefore, the title of the plaintiff by virtue of the sale-deed dated 25-3-1947 is deemed to have been admitted by necessary implications. In support of this submission he relied on a decision in Jahuri Shah & Ors. Vs. Dwarika Prasad Jhunjhunwala & ors. - AIR 1967 SC 109.
10. He also pointed out that the unregistered sale-deed dated 25-3-1947 was exhibited by the trial Court and no objection was raised by defendant no.2 and, therefore, he is stopped from denying the contents of the unregistered sale-deed. He also pointed out that the contents of the said unregistered sale-deed would indicate that Abdul Wahab was the original owner of the suit house and he had sold it for a consideration of Rs.35/- to the original plaintiff, delivered the possession on the same day and executed the sale-deed. He contended that though the sale-deed is not registered, it was not necessary to get it registered and the plaintiff has acquired title to the suit house by delivery of possession by virtue of the said sale-deed dated 25-3-1947. He contended that even the Rent-note dated 27-9-1972 would indicate that the plaintiff had inducted the tenant in the suit premises and the defendant no.1 took forcible possession from the tenant sometime in the month of May 1974. He contended that the Gram Panchayat had also issued notice dated 15-4-1966 to the plaintiff calling upon him to stop the construction of the wall for want of permission from the Gram Panchayat. Therefore, Mr. Vyawahare contended that the concurrent findings of both the Courts are sustainable in law and no interference into the same is warranted.
"Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made. - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
12. Plain reading of the aforesaid section would reveal that there are only two modes of transfer by sale and these are (i) registered instrument; and (ii) delivery of possession. The first overlaps the second, for a transfer may in all cases be made by a registered instrument. It is only in the case of tangible immovable property of value less than Rs.100/-, that the section allows the simpler alternative of delivery of possession. In all other cases a registered instrument is compulsory. The option of a simpler alternative is allowed in the case of tangible immovable property of value less than Rs.100/-, because the formality of a registered instrument is not considered necessary in view of the small value, and the patent evidence of the transfer afforded by the delivery of physical possession.
13. The examination of the sale-deed dated 25-3-1947 would reveal that Abdul Wahab was the erstwhile owner of the suit premises and it is he who had executed the unregistered sale-deed in favour of the plaintiff on that day on receiving the consideration of Rs.35/-. The recitals of the document would clearly indicate that the possession has been delivered on the same day. It is significant to note that defendant no.1 did not contest the suit and has chosen to remain absent and, therefore, the suit proceeded ex parte against him. Both the Courts below have considered the evidence in detail and in proper perspective. The appellate Court has observed in the judgment that this unregistered sale-deed dated 25-3-1947 was admissible in evidence because the transfer of the suit house was complete be delivery of possession. Both the Courts below also considered that the plaintiff had inducted one tenant in the suit house and there was evidence of the plaintiff to show that defendant no.1 being the brother of the plaintiff, obtained forcible possession from the tenant sometime in the month of May, 1974.
14. Both the Courts below were of the opinion that the plaintiff has established his title on the strength of the sale-deed dated 25-3-1947 as well as on considering the attending circumstances like the Rent-note and the receipt of the notice dated 15-4-1966 from the Gram Panchayat calling upon the plaintiff to stop the construction of the wall which was started without the permission of the Gram Panchayat. Both the Courts below have recorded finding of fact that the parties acted on the terms and conditions mentioned in the sale-deed dated 25-3-1947 and there is no reason for this Court to interfere into the concurrent findings of facts recorded by both the Courts below..
15. The transfer of the suit house in favour of the plaintiff was complete by delivery of possession on 25-3-1947 and, therefore, the burden shifted on the defendants to show that they had title to the suit house or that the defendant no.1 was in lawful possession of the suit house after 25-3-1947. In absence of any evidence in that context, it is not possible to accept that the sale transaction dated 25-3-1947 is not in accordance with Section 54 of T. P. Act. The contention of the learned counsel for defendant no.2 that the said sale-deed being unregistered is not admissible in evidence by virtue of Section 54 of T. P. Act read with Section 49 of the Registration Act is misconceived and required to be rejected. Therefore, in the facts and circumstances, the decision of the Supreme Court in Raghunath Vs. Kedarnath, cited supra, is not of any avail to the defendant no.2.
16. The next contention of Mr. Chandurkar, learned counsel, is that the document dated 25-3-1947 is not admissible in evidence for want of proof of its contents though it is 30 years old document as per Section 90 of the Evidence Act. In support of this contention, he relied on the decision of Supreme Court in Chandulal Asharam Travadi Vs. Bai Kashi, cited supra, wherein ratio has been laid down that Section 90 only provides that documents more than 30 years old coming from proper custody prove themselves, but it does not involve any presumption that the contents of the documents are true. This decision is also not applicable to the facts and circumstances of the present case because the defendants did not raise any objection while the document was being exhibited in the trial Court and secondly the defendants did not specifically deny the title of the plaintiff in the pleadings nor any proof has been adduced to show that the suit premises was not transferred in favour of the plaintiff by delivery of possession.
17. What is important to note is that the defendant no.2 did not specifically deny the title of the plaintiff and, therefore, by necessary implication, the same is deemed to have been admitted. Mr. Vyawahare rightly relied on the decision of Supreme Court in Jahuri Shah and other, cited supra, wherein it has been observed in para 10 that, "in neither of the two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead what is stated on both these written statements is that the defendants have no knowledge of the allegations made in para 1 of the plaint. Bearing in mind that Order VIII Rule 5, C.P.C., provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of that fact, not even an implied denial." Thus, in the present case, since the defendants have specifically denied the title of the plaintiff to the suit house, it does not lie in their mouth to say that the unregistered sale-deed dated 25-3-1947 is not admissible in evidence to prove the title of the plaintiff.
18. The presumption applies to the documents proved to be 30 years old or more and the documents must come from proper custody. The presumption is discretionary and so where a document is suspicious on the face of it or mutilated, the Court may refuse to make it. It may call upon the party to offer other proof. The presumption applies only to the document which bears the signature of writer or witnesses and not to unsigned or anonymous papers. Presumption only relates to the signature on the document, i.e. to its genuineness though it does not involve any presumption that its contents are true and that they have been acted upon. 30 years is to be counted from the date the document purports to bear. The presumption applies to the original documents. In the present case, the document unregistered sale-deed dated 25-3-1947 is 30 years old document and it was duly proved by the plaintiff and it was produced from the proper custody and thus its contents have not been denied specifically by defendants no.1 or 2 and, therefore, is perfectly admissible in evidence.
19. It is relevant to note that the case of defendant no.2 is that he has purchased the suit house from defendant no.1 by virtue of the registered sale-deed dated 04-2-1976 is hit by the doctrine of lis pendens. The suit has been instituted on 22-7-1974 whereas the sale-deed is said to have been executed during the pendency of the suit by defendant no.1 in favour of defendant no.2 on 04-2-1976.
20. Section 52 of the T. P. Act lays down that during the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government ... of any suit or proceedings which is not collusive and in which any right of immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose. For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed off by a final decree or orders and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.
21. It is undisputed that the rights of the parties to the immovable property, i.e. suit premises, were directly and specifically in controversy in the suit. This section indicates the doctrine of lis pendens which is expressed in 'ut lite pendente nihil innovetur.' It imposes a prohibition on transfer or otherwise dealing of any property during the pendency of a suit, provided the conditions laid down in the section are satisfied. It is a doctrine common to the Courts both of Law and Equity and rests upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings. The doctrine of lis pendens is based on justice, equity and good conscience and in the present case it is obvious that the transaction of sale between defendant no.1 and defendant no.2 by virtue of registered sale-deed dated 04-02-1976 is hit by the doctrine of lis pendens.
22. In the result, I am of the considered opinion that the concurrent findings of fact recorded by both the Courts below that the plaintiff has established his title to the suit house and that he is entitled to decree for possession, cannot be said to be not based on correct appreciation of evidence in proper perspective and, therefore, I do not find any reason to take a different view of the matter and this is not a case where interference into the concurrent findings of fact is required. In that view of the matter, I am of the considered view that no substantial question of law is involved in this appeal and the same is dismissed with costs throughout.