HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
SECOND APPEAL No.487 of 2015
JUDGMENT :
This appeal is arising out of the judgment dated 24.04.2015 in A.S.No.16 of 2012, on the file of Senior Civil Judge, Bhongir. It is pertinent to mention that a common judgment was passed by the Senior Civil Judge Court, Bhongir i.e., in A.S.No.16 of 2012 and A.S.No.17 of 2012 which are arising out of the suit i.e., O.S.No.32 of 2003 on the file of Junior Civil Judge, Ramannapet.
2. For the sake of convenience, the parties are referred to as arrayed before the trial Court.
3. The appellants herein are plaintiffs in O.S.No.32 of 2003 on the file of Junior Civil Judge, Ramannapet. The plaintiffs filed the suit for declaration of title and for permanent injunction. The case of the plaintiffs is that one Balagoni Pentaiah i.e, the father of 1st plaintiff and the 4th plaintiff purchased the suit schedule properties from one Tadaka Chandraiah (father of defendant Nos.1 to 3) on 09.12.1973 and 16.09.1979 under unregistered sale deeds and possession was also delivered (suit schedule properties bearing 2 GAC, J S.A.No.487 of 2015 No.Sy.No.315, admeasuring Ac.1-37 gts and admeasuring Ac.13- 33 gts in Sy.No.290 of Nelapatla Village, Choutuppal Mandal, Nalgonda) to Balagoni Pentaiah. Further, Tadaka Chandraiah promised to execute and register sale deeds in favour of the plaintiff Nos.1 and 4 but postponed the matter from time to time. It is the further case of the plaintiffs that they developed the properties by investing huge amounts and also obtained pattadar passbooks in the year, 1979 and they are in possession of the suit schedule properties. As the defendants are trying to interfere with their peaceful possession and trying to dispossess them, they are constrained to file the suit and prayed to pass a decree in favour of the plaintiffs.
4. On the other hand, defendant Nos.1 to 3 filed their detailed written statement which was adopted by the other defendants. It is the specific case of the defendants that two unregistered sale deeds dated 09.12.1973 and 16.09.1979 are forged and fabricated and that Tadaka Chandraiah never sold the property to the father of the plaintiff Nos.1 and 4 and further the plaintiffs managed to enter their names in the revenue records. The alleged documents are 3 GAC, J S.A.No.487 of 2015 inadmissible in law, for want of registration and stamp duty and prayed to dismiss the suit as devoid of merits.
5. Basing on the pleadings, the trial Court framed the following issues:-
1. Whether the plaintiffs are entitled for declaration as prayed for?
2. Whether the plaintiffs have perfected their title over the suit schedule land by adverse possession?
3. Whether the plaintiffs are entitled for permanent injunction as prayed for?
4. Whether the plaintiffs are ready and willing to perform their part of contract and are entitled for the benefit under Section 53-A of Transfer of Property Act, as prayed for?
5. To what relief?
6. On behalf of plaintiffs, PWs.1 to 11 were examined and Exs.A-1 to A-47 were marked. On behalf of defendants, DWs.1 to 3 were examined and Exs.B-1 to B-18 were marked.
7. On considering the entire oral and documentary evidence available on record, the trial Court partly decreed the suit granting permanent injunction in favour of the plaintiffs, restraining the defendants and their men from interfering with peaceful possession 4 GAC, J S.A.No.487 of 2015 and enjoyment of the plaintiffs over the suit schedule properties and dismissed the relief declaring the plaintiffs as owners of the property.
8. Being aggrieved by the same, the defendants filed an Appeal vide A.S.No.17 of 2012 for granting injunction in favour of the plaintiffs. Likewise, being aggrieved by the judgment and decree of the trial Court, the plaintiffs also preferred an Appeal vide A.S.No.16 of 2012 for dismissing the relief for declaration of title. The 1st appellate Court i.e., Senior Civil Judge, Bhongir heard both the appeals together and framed the point for consideration as under:-
"Whether the judgment and decree dated 23.07.2012 delivered by the lower Court is suffered from any irregularity or illegality."
9. On considering the entire material on record, the first appellate Court has dismissed A.S.No.16 of 2012 confirming the judgment of the trial Court, in O.S.No.32 of 2003 to the extent of disentitlement of the plaintiffs, for relief of declaration of title in respect of suit schedule properties. Further, allowed the appeal suit i.e., A.S.No.17 of 2012 in part, by dismissing the relief for 5 GAC, J S.A.No.487 of 2015 perpetual injunction sought by the plaintiffs, over item No.2 of the suit schedule property i.e., the land in Sy.No.290 for the judgment and decree dated 23.07.2012 in O.S.No.32 of 2003 was thereby setaside. As far as the item No.1 of the suit schedule property is concerned i.e., Sy.No.315 to an extent of Ac.1-37 gts, perpetual injunction granted in favour of the plaintiffs was thereby confirmed.
10. Being aggrieved by the judgment and decree in A.S.No.16 of 2012, the plaintiffs have preferred the present Second Appeal with the following substantial questions of law:
(a) Whether the judgment and decree passed by the trial Court in not granting relief of declaration based on the Exs.A1 & A2 is contrary to the evidence and vitiate, since there is a clear finding that the appellants were valid purchasers for consideration, it could have passed decree of specific performance of contract taking aid of the shelter U/S 54 of Transfer of Property Act and Section 17 of the Registration Act?
(b) Whether the First Appellate Court is right in set aside the trial Court judgment and decree while allowing partly by granting permanent injunction in respect of suit schedule property to the appellant based on Exs.A-1 to A-25 is contrary to the pleadings and evidence without their being any explanation?6
GAC, J S.A.No.487 of 2015
(c) Whether the finding of the learned Senior Judge is vitiated by making additional issue regarding that the plaintiffs are not expressed the ready and willing to perform their part of contract and they are not entitled the benefit of U/S 53 of TP Act is vitiated since there is no such averments hence the additional issue is contrary to law.
(d) Is the appellant court is right is set asiding the judgment and decree of the trial court which was partly allowed by way of granting permanent injunction based on the prime facie and titled to the suit scheduled property, possession as on the date of the filing of the suit till to date and balance of convenience irreparable laws which are mandatory Under Order 39 of CPC?
11. On perusal of the substantial questions of law as raised by the appellants herein, this Court is of the considered view that the same relate to the concurrent findings of fact by both the Courts below but not on law. The scope under Section 100 of CPC is very limited. In a Second Appeal, if the High Court is satisfied that the case involves a substantial question of law, then only, the Court can interfere with the orders of the Courts below. Further more, the substantial question of law raised by the appellants is on Section 54 of the Transfer of Property Act, 1882 (for short 'the Act') and Section 17 of the Registration Act, 1908. 7
GAC, J S.A.No.487 of 2015
12. As per Section 54 of the Act:-
"Sale" defined.--''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part- promised. Sale how made.--3Such 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. 1In 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 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."
13. The most important ingredient under Section 54 of the Act is that in a case of any tangible immovable property of a value less than Rs.100/-, such transfer must be made either by registered instrument or by delivering the property. In the present case, the plaintiffs are relying on the two unregistered documents which are to be compulsorily registered as per Section 54 of the Act. Moreover, Section 17 of the Registration Act, 1908 clearly envisages that the documents pertaining to immovable property are to be registered. Therefore, the plaintiffs cannot claim the relief for declaration of title, basing on the unregistered documents covered 8 GAC, J S.A.No.487 of 2015 under Exs.A-1 and A-2. Moreover, the 1st appellate Court have given a finding that the plaintiffs are not in possession of item No.1 of the suit schedule property as on the date of filing of the suit. In a suit for declaration of title and possession, the plaintiffs have to succeed only on the strength of their own title and it could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not and further, it is for the plaintiffs to prove that they are in possession of the suit schedule property as on the date of filing of the suit.
14. In the present case, both the Courts below have given concurrent finding that the plaintiffs are not entitled for declaration of title and further the relief for injunction was granted by the first appellate Court to the plaintiffs only with respect to item No.2 of suit schedule property. Therefore, on the fact findings it is not proper to interfere with the orders of the Courts below in the absence of substantial question of law. Therefore, the Second Appeal deserves to be dismissed.
9
GAC, J S.A.No.487 of 2015
15. Accordingly, the Second Appeal is dismissed at the stage of admission as devoid of merit, confirming the common judgment passed by the Senior Civil Judge Court, Bhongir in A.S.No.16 of 2012 dated 24.04.2015. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed.
________________________________ G.ANUPAMA CHAKRAVARTHY, J Date: 22.09.2022 dv