HON'BLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION No.276 of 2023
Date : 06.04.2023
Between:
Smt. Bano Begum w/o. Mohd. Sayeed,
Aged 44 years, occu: Household,
R/o. 11-4-79, Red Hills, Nampally,
Hyderabad, T.S.
.... Petitioner/petitioner/
Plaintiff
and
sri S.Praveen Kumar, s/o.not known
Aged 43 years, occu: Business,
r/o.10-4-771/2/E, Humayun Nagar,
Hyderabad.
.... Respondent/respondent/
Defendant
The Court made the following:
PNR,J
CRP No.276 of 2023
2
HON'BLE SRI JUSTICE P. NAVEEN RAO
CIVIL REVISION PETITION NO.276 OF 2023
ORDER:
Heard learned counsel for petitioner Sri Ch.Radhakishan and learned counsel for respondent Sri Eranki Phani Kumar.
2. Plaintiff is petitioner herein. He filed O.S.No.229 of 2016 on the file of XVII Additional Senior Civil Judge, City Civil Court, Hyderabad praying to grant decree for perpetual injunction restraining the defendant, his agents, person or persons claiming under him from interfering with the plaintiff's peaceful possession and enjoyment in respect of suit schedule property i.e., H No. 11-4-144/1 (part of house No.11-4-144) admeasuring 86 sq yards comprising of a room with open area at Bazarghat, Asifnagar mandal, Hyderabad.
3. According to plaintiff, he is absolute owner and in possession of the suit schedule property, having purchased the same by way of a registered sale deed dated 9.2.2016. The plaintiff traces flow of title being passed on to him. While so, plaintiff contends that defendant who is no way concerned with the suit schedule property started interfering with the plaintiff's possession and enjoyment. Several attempts are made by the PNR,J CRP No.276 of 2023 3 defendant for dispossessing the plaintiff and to take physical possession. As the threat of dispossession is persisting, plaintiff was compelled to institute instant suit.
4. In the said suit, plaintiff filed I.A.No.410 of 2022 under Sections 33 and 35 of Indian Stamp Act, 1899 praying the Court to send the agreement of sale dated 7.8.2010 to the District Registrar, Hyderabad for the purpose of validating/ impounding the said document.
5. In the affidavit filed in support of the application, plaintiff pleaded that the original agreement of sale dated 7.8.2010 was not available as same was transmitted to the Court of Hon'ble XII Metropolitan Magistrate, Nampally, Hyderabad for taking steps to send the same to Forensic Science Laboratory (for short, 'FSL'). Therefore, at the time of recording evidence of P.W.1 and marking of documents Exs.A1 to Ex.A9, she could not mark the agreement of sale deed 7.8.2010. It is her further case that she filed application to bring the said document to the Court for marking and though the said document was received by the Court, the Court refused to mark the same on 12.9.2022 as it was insufficiently stamped document, therefore, inadmissible in evidence. Contending that said agreement of PNR,J CRP No.276 of 2023 4 sale is vital document, plaintiff pleaded for sending the said document for validating/impounding.
6. Claim of the plaintiff is opposed by the defendant. It is contended that after repeated adjournments, only to procrastinate the suit proceedings, the present application is filed. According to defendant, plaintiff, her husband and brother colluded with criminal conspiracy and forged the signature of father of defendant late S.Ganapath Rao. It is further case of the defendant that original agreement of sale dated 7.8.2010 is a forged document, complaint was lodged with the police alleging forgery of the document, complaint was registered as Crime No.113 of 2016 for the offences punishable under Sections 468 and 471 read with Section 120-B of IPC and on completion of investigation, police filed charge sheet in C.C.No.22 of 2017 on the file of XII Additional Chief Metropolitan Magistrate. During the course of investigation, police sent the original document to FSL. On examination, FSL reported that alleged signature of late S Ganapath Rao is forged signature and submitted a report to the Court of XII Additional Chief Metropolitan Magistrate on 26.9.2016.
PNR,J CRP No.276 of 2023 5
7. The trial Court framed two questions for consideration. They read as under:
1. Whether the absolute agreement of sale dated 7.8.2010 is to be sent to the District Registrar, Hyderabad for the purpose of validating or impounding the said document ?
2. Whether PW.1 is to be recalled for marking the said agreement of sale dated 7.8.2010 as exhibit ?
8. The trial Court noted that the agreement of sale is not properly stamped and is not registered, therefore not admissible in evidence. Further, as it is a suit for perpetual injunction, the burden is on the plaintiff to prove legal possession and occupation of the suit schedule property to succeed in the suit. The Court noted that on the earlier occasion, Court passed orders on 12.9.2022 holding that as agreement of sale dated 7.8.2010 was insufficiently stamped and unregistered, it cannot be exhibited in evidence. Noting further the pendency of criminal case, reference of the document to FSL and report of FSL the trial Court held that document cannot be received in evidence even for collateral purposes. The trial Court held that defect of non registration of the document is not curable defect and as the suit is for simple injunction, said agreement of sale PNR,J CRP No.276 of 2023 6 which was insufficiently stamped and unregistered cannot be considered. As point no.1 was answered in favour of defendant, point no.2 was also answered accordingly.
9. Extensive submissions are made by learned counsel on either side.
10. Learned counsel for plaintiff relied upon decision of the Supreme Court in Thiruvengadam Pillai Vs Navaneethammal and another1. Learned counsel for defendant relied on decisions of Supreme Court in K.B.Saha and Sons Private Limited Vs Development Consultant Limited2 and S.Kaladevi Vs V.R. Somasundaram and others3.
11. In the facts of this case, the point for consideration is whether trail Court erred in not accepting the plea of the petitioner to send the document for impounding.?
12. Admittedly, plaintiff is seeking to rely on alleged absolute agreement of sale dated 07.08.2010 to contend that she was in valid possession of suit schedule property and that her possession should not be disturbed. Clause-7 of the absolute agreement of sale dated 07.08.2010 records that in pursuant to 1 (2008) 4 SCC 530 2 (2008) 8 SCC 564 3 (2010) 5 SCC 401 PNR,J CRP No.276 of 2023 7 payment of full sale consideration, the vendor delivered the vacant and peaceful possession of the schedule property to the vendee and the vendee was inducted into peaceful physical possession.
13. In addition to the fact that the defendant is seriously disputing the legality and validity of the said document, he has alleged forgery of signature of late S.Ganapathi Rao; filed Police complaint; Police have investigated and filed charge-sheet. The said document was referred to FSL and the FSL in their report dated 26.09.2016 reported that the signature is forged. Therefore, the very existence of the document is in dispute. This document was not registered. Assuming that the agreement of sale is a valid document relying on terms of clause-7 of the alleged agreement of sale cannot be called as collateral purpose i.e., that plaintiff was validly vested with the possession. The settled principle of law is that a document compulsorily registrable, if not registered is inadmissible in evidence. Though such document can be used as an evidence of collateral purpose, such collateral transaction must be independent of or divisible from, the transaction effective of which requires registration.
PNR,J CRP No.276 of 2023 8
14. In paragraph-34 of the judgment in K.B.Saha and Sons (P) Ltd., (supra), the Hon'ble Supreme Court held, "Collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of 100/- and upwards and if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence".
15. In the instant case, plaintiff sought to rely on clause-7 of the agreement of sale dated 07.08.2010 to contend that she is in valid possession of subject property. In other words, according to plaintiff, on receiving full sale consideration, possession was vested in her as evident from clause-7 of the agreement of sale. As the said document is a compulsorily registrable document and not registered said, said clause cannot be looked into to establish possession.
16. In the facts of this case, the decision relied on by the learned counsel for plaintiff do not come to the aid of the plaintiff and in Thiruvengadam Pillai (supra), the Hon'ble Supreme Court considered whether the agreement of sale executed on two stamp papers purchased on different dates is not valid and whether the first appellate court was justified in comparing the disputed thumb impression with the admitted PNR,J CRP No.276 of 2023 9 thumb impression and recording a finding about the authenticity of thumb impression without benefit of any opinion of an Expert. Whereas herein, it is not a case of execution of agreement on two stamp papers and authenticity of signature was already referred to FSL for Expert opinion and the Expert opined that the concerned signature does not belong to late S.Ganapathi Rao.
17. Having regard to the peculiar facts of this case, I do not see any error committed by the trial Court in refusing to accept the plea of the petitioner to send the absolute agreement of sale dated 07.08.2010 to the District Registrar for the purpose of validating/impounding the said document. As noticed above, the objective of plaintiff seeking the document to be impounded/validated is to rely upon clause-7 of the agreement of sale to support her possession claim. The Civil Revision Petition is dismissed. Pending miscellaneous applications, if any, shall stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 06.04.2023 TVK/KKM PNR,J CRP No.276 of 2023 10 HON'BLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION No.276 of 2023 Date : 06.04.2023 Tvk/kkm