Second Appeal No.81 of 1988

20th August, 2003

Petitioner Counsel: Mr. S. R. DESHPANDE
Respondent Counsel: Mr. J. N. CHANDURKAR

Cases Cited:
State Bank of Travancore Vs. Arvindan Kunju Panicker, AIR 1971 SC 996 [Para 18]

JUDGMENT

JUDGMENT :- By this second appeal, the original plaintiff has challenged the judgment and decree dated 18-9-1987 passed by the appellate Court in Reg. Civil Appeal No.173 of 1983 allowing the appeal by setting aside the judgment and decree dated 25-7-1983 in Reg. Civil Suit No.55 of 1977 by which the claim of the plaintiff for possession was decreed and the defendant no.1 was directed to deliver the possession of plot no.1 admeasuring 30 x 40 feet in Ward No.15 within the municipal limits of Achalpur, after removing the structure standing thereon.

2. Brief facts are as under :

The agricultural land admeasuring 5 acres 20 gunthas was originally owned by Smt. Rukhminibai Deshmukh. The said land was purchased by virtue of registered sale-deed dated 22-8-1956 by 110 persons for construction of their houses. The plaintiff was one of them. The said land was converted into non agricultural use and subsequently a lay-out for residence in the said land was drawn. The distribution of the plots was made by the panch committee on 28-2-1967 and a document for allotment (Ex.32) was prepared. The plot no.1 was allotted to the plaintiff and plot No.37 was allotted to Phulchand Sakhare - the husband of defendant no.2. It is contended that Phulchand had no right, title or interest in the said plot but he had erected a hut on the said plot and lived there for some days and then allowed defendant no.1 to occupy the said hut. The latter had no right to remain in possession of the said hut standing on plot no.1. Therefore, the defendants were called upon to restore possession by issuing notice dated 14-2-1977 to which evasive reply was given on 28-2-1977.

3. The defendant no.1 combated the claim of the plaintiff by her written statement and contended that Phulchand was the owner of plot no.1 and she had purchased the said plot from him by virtue of kararnama on 30-11-1956. She further contended that Phulchand delivered the possession of the suit plot along with the hut to her on the same day and since then she is in continuous possession. It is specifically contended that she has perfected her title to the suit plot by adverse possession.

4. The defendant no.2 did not contest the suit. The trial court negatived the contention of defendant no.1 and observed that the possession of defendant no.1 was only a permissive possession and she did not acquire the title to plot no.1 by adverse possession. The trial Court also observed that the suit was perfectly filed within the period of limitation and consistent with these findings the trial Court decreed the suit. Being aggrieved by the said judgment and decree of the trial Court, the defendant no.1 carried an appeal to the District Court. The appellate Court on appreciation of the evidence was of the view that the defendant no.1 has perfected her title by virtue of adverse possession and the suit was also barred by period of limitation. Consequently, the appellate court allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. This judgment of the appellate court is under challenge in this appeal.

5. Heard Mr. Deshpande, learned counsel, for the appellant and Mr. Chandurkar, learned counsel, for respondent no.1. The substantial question of law involved in this appeal is, whether defendant no.1 became the owner of suit plot no.1 by virtue of adverse possession and whether the suit was filed within the period of limitation.

6. Mr. Deshpande, learned counsel, for the appellant contended that Phulchand had no title to the suit plot no.1 and consequently the unregistered sale-deed in the nature of Kararnama executed by him on 30-11-1959 is of no consequence to show the title of defendant no.1. He contended that this Kararnama has not been admitted in evidence by the trial Court and, therefore, the same is not admissible in evidence. He contended that appropriate stamps were also not affixed to the Kararnama. The said document was not registered and, therefore, inadmissible in evidence as per the provisions of Section 34 of The Bombay Stamp Act, 1958 (hereinafter referred to as the Stamp Act.). He contended that even the said Kararnama cum unregistered sale-deed at most could have been used for the collateral purpose as per Section 49 of the Registration Act, 1908( for short, the Registration Act), had the said document been registered. He, therefore, contended that the appellate Court has committed an error of law in coming to the conclusion that the defendant no.1 has perfected her title to plot no.1 by virtue of adverse possession. He contended that the appellate Court also committed a grave error in recording a finding that the suit is barred by limitation.

7. Mr. Chandurkar, learned counsel, for defendant no.1 contended that the plaintiff has failed to establish his title. The sale-deed which is said to have been executed by Rakhmanibai Deshmukh of Survey No.31 on 22-8-1956 in favour of 110 persons has not been placed on record. He contended that the allotment letter (Ex.32) cannot be taken into consideration to show that the plaintiff has a title to plot no.1. He contended that plot no.1 was sold by Phulchand to defendant no.1 by executing a Kararnama on 30-11-1959 and delivered the possession of plot no.1 along with the hut standing thereon and since then the defendant no.1 is in possession. He further contended that the defendant no.1 has perfected her title to the said disputed plot and hut by adverse possession and the appellate Court was justified in reversing the judgment and decree passed by the trial Court. He contended that the impugned judgment and decree passed by the Appellate Court is perfectly legal and sustainable in law.

8. I have given thoughtful consideration to the contentions canvassed by the learned counsel for both the parties. It is not in dispute 110 persons purchased Survey No.31 from Smt. Rukhmanibai Deshmukh on 22-8-1956 by a registered sale-deed. The letter of allotment (Ex.32) has been admitted in evidence which would indicate that plot no.1 was allotted to plaintiff on 28-2-1967 at the time of distribution of plots by the panch committee. What is pertinent to note is that at the time of distribution of plots, plot no.37 was allotted to Phulchand - the husband of defendant no.2 on the same day. The appellant Court was clearly in error in holding that this allotment letter cannot be admitted in evidence in absence of any registered sale-deed executed in favour of the plaintiff in relation to the disputed plot.

9. The plaintiff served the defendants by notice dated 14-2-1977 and called upon them to restore the possession. Reply was given to the said notice by defendant no.1 on 28-2-1977 wherein it is not disputed that there was a distribution of plots to various persons though it is denied that plot no.1 was allotted to the plaintiff. The defendant no.1 did not specifically plead in the reply that plot no.1 was allotted to Phulchand. If it is so then it would reveal that there is no evidence on the basis of which it could be said that Phulchand acquired the title to the suit plot no.1 at the time of distribution of plots on 28-2-1967. When Phulchand did not acquire any title nor the defendants have adduced any evidence to show that Phulchand had valid title to the dispute plot no.1, it is obvious that he could not have sold the disputed plot by oral sale, which transaction was reduced into writing in the form of Kararnama. This Kararnama has not been admitted in evidence to show that the disputed plot was sold by Phulchand to defendant no.1 on 30-11-1959. The said unregistered Kararnama is not admissible in evidence.

10. It is necessary to reproduce Section 34 of the Stamp Act which contemplates that "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped or if the instrument is written on sheet of paper with impressed stamp. Provided that (a) any such instrument shall, subject to all just exception, be admitted in evidence on payment of (i) the duty with which the same is chargeable or in the case of an instrument insufficiently stamp, the amount required to make up such duty, and (ii) a penalty at the rate of 2 per cent of the deficient portion of the stamp duty for every month or part thereof, from the date of execution of such instrument. Provided that, in no case, the amount of the penalty shall exceed double the deficient portion of the stamp duty (b) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped; (c) nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding (under Chapter IX or Part D of Chapter X of the Code of Criminal Procedure 1973); (d) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act; [(e) nothing herein contained shall prevent the admission of a copy of any instrument or of any oral admission of the contents of any instrument, if the stamp duty or a deficient portion of the stamp duty and penalty as specified in clause (a) is paid].

11. Bare reading of the aforesaid provision of law, would reveal that unless a document is affixed with proper stamps, it is not admissible in evidence unless impounded. It is a fact that the said document of Kararnama was not impounded and, as such, it cannot be read in evidence to show that defendant no.1 has acquired title to the disputed plot by virtue of the said document.

12. It is also pertinent to note that the said document of sale is not registered and for want of registration it cannot be admitted in evidence even as for collateral purpose. Section 49 of Registration Act contemplates that "Effect of non-registration of documents required to be registered - No document required by Sec.17 (or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall (a) affect any immoveable 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 immoveable 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.)" (emphasis supplied).

13. The words employed in Sec.49 "or as evidence of any collateral transaction not required to be effected by registered instrument" would clearly show that before any document is admitted as evidence for collateral transaction, the document must not (Sic) be required to be effected by registered instrument.

14. Sale is defined under Section 54 of Transfer of Property Act, 1882 which contemplates that "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 immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable 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 immoveable 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 immoveable property is 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.

15. It is thus obvious that sale can be made only by a registered instrument. The Article A Kararnama was not registered and, therefore,the same cannot be admitted in evidence even for collateral purpose, as per Section 49 of the Registration Act. Therefore, the appellant Court has obviously committed an apparent error of law by observing that this document can be admitted in evidence for collateral purposes.

16. The trial Court clearly held that at the most possession of defendant no.1 could be said to be a permissive possession. He further observed that till 1967 there was no specific ownership of any specific member but they all were the joint owners of the land and it is after 1967, i.e. after the distribution of plots, particular members became the owners of the particular plot. It means till 1967 neither Phulchand nor the defendant no.1 were the owners of the plot and, therefore, the plea of adverse possession is not open to the defendants. The defendant no.1 is in possession of plot no.1 since the year 1959 but thereafter till 1967 for the first time plaintiff got right over the plot no.1 to claim possession and, therefore, the suit filed within ten years, i.e. in the year 1977, was perfectly within the period of limitation.

17. On close scrutiny it would reveal that the appellate Court has committed an error of law by interfering into the finding of the fact recorded by the trial Court in this context. It is needless to mention that adverse possession means possession of the land or interest in the land by a wrong man against the will of the right man. Adverse possession, as its words imply, must be actual possession of another's land with intention to hold it and claim it as of his own, to the exclusion of the rightful owner. It must commence with the wrongful possession of the rightful owner at some particular time and must commence, in wrong against right. It must be actual, open, notorious and hostile under claim of right, continuous and exclusive and maintained for the statutory period. Possession and adverse possession do not mean the same thing. Mere user of the property cannot be taken as a definite assertion of the proprietory rights, there must be definite quality in the possession before it can be called adverse and some act of unequivocal character to put the owner on guard. There cannot be adverse possession if the claimant himself do not know that he was occupying somebody's land.

18. However, permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to the property, to the knowledge of the true owners for a period of 12 years or more. I am fortified in my view by the decision of the Supreme Court in State Bank of Travancore Vs. Arvindan Kunju Panicker - AIR 1971 SC 996 wherein it is observed that, "a permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of the true owners for a period of 12 years or more."

19. The concept of adverse possession contemplates a hostile possession, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possessed by a person who does not acknowledge the other's rights but deny them. Also a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claim. Permissive possession does not become hostile till there is assertion of adverse possession to the knowledge of the owner. Permissive character of the possession cannot be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception the possessor cannot prescribe or sustain title or any claim to the grantor of the possession.

20. In the present suit, it is admitted position that the defendants themselves do not know who was the owner of plot no.1 at the time of the execution of the Kararnama, i.e. on 30-11-1959 and the defendant no.1 did not mention specifically in the reply dated 28-2-1977 that Phulchand was the owner of the said disputed plot. Though Phulchand must have constructed the hut on the disputed plot even prior to 1959, that does not mean that he had acquired title to the said plot and hut. When the vendor had no title, he could not have conveyed title to defendant no.1 by virtue of unregistered and inadmissible Kararnama. Therefore, it is difficult to hold that the defendant no.1 became the owner of the disputed plot and hut by virtue of the recitals mentioned in the Kararnama which has been executed by Phulchand who is the husband of defendant no.2.

21. The defendant no.1 did not know who was the owner of plot no.1 nor Phulchand had any knowledge about the same. In that situation, it cannot be said that either Phulchand or defendant no.1 has perfected their title simply because they were in long standing possession of the said disputed plot. The possession of Phulchand and thereafter by defendant no.1 was clearly a permissive possession and it is obvious that the appellate Court has committed an error of law in coming to the conclusion that defendant no.1 has perfected her title by adverse possession. The appellate Court could not have upset the finding of the trial Court in this context and I am of the considered view that the trial Court was perfectly justified in coming to the conclusion that the suit for possession filed by the plaintiff deserves to be decreed and was perfectly within limitation. In that view of the matter, I am of the firm opinion that the impugned judgment and decree passed by the appellate Court is not sustainable in law and the judgment and decree passed by the trial Court deserves to be restored.

22. In the result, the appeal is allowed. The impugned judgment and decree of the appellate Court is set aside and that of the trial Court is restored. In the circumstances, there shall be no order as to costs.

Appeal allowed.