Lakhan Singh vs Phool Singh And 2 Others
2022 Latest Caselaw 5397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 16.05.2022
 
Delivered on 27.06.2022
 
Court No. - 10
 

 
Case :- SECOND APPEAL No. - 348 of 2020
 
Appellant :- Lakhan Singh
 
Respondent :- Phool Singh And 2 Others
 
Counsel for Appellant :- Ajendra Kumar
 
Counsel for Respondent :- Satyaveer Singh
 

 
Hon'ble Rohit Ranjan Agarwal,J.

1. Heard Sri Ajendra Kumar, learned counsel for the appellant, Sri Satyaveer Singh, learned counsel for respondent no. 1 and Sri Arvind Srivastava, learned counsel for respondent nos. 2 and 3.

2. This second appeal under Section 100 of Code of Civil Procedure has been filed against judgment and decree dated 30.01.2020 passed by Additional District Judge, Court No. 5, Etah in Civil Appeal No. 58 of 2016 and judgment and decree dated 20.09.2016 passed by Civil Judge (Senior Division), Etah in Original Suit No. 270 of 2014.

3. Facts in brief, are that plaintiff-appellant filed Original Suit No. 270 of 2014 against defendant-respondent nos. 1 to 3 for cancellation of the sale-deed dated 26.06.2009 and 11.01.2011. According to plaint allegation, Late Edal Singh @ Udal Singh who was maternal uncle of plaintiff had transferred the land in dispute in the year 1985 to the plaintiff after executing a document on plain paper, and the plaintiff was to look after Late Edal Singh as well as his two daughters. It was further alleged that on 21.01.1999, a written document in form of sale-deed was executed for the land in which the value of the land was shown to be Rs.90. It was further alleged that Edal Singh @ Udal Singh died on 17.09.2006, while the entry in the revenue record in paka 11 was shown as 15.07.2006 and the defendant no. 1, Phool Singh had got the sale-deed executed in his favour by two daughters of Udal Singh namely Kamla Devi and Premlata who did not have any right over the land in dispute.

4. Defendants-respondents contested the suit and filed their written statement wherein it was stated that defendant nos. 2 and 3 are the daughters of Late Edal Singh @ Udal Singh and no transfer of the land was made in favour of the plaintiff. Further, the document of 1999 was an unregistered document. It was further averred that due to mistake of Revenue Inspector, the entries were wrongly made on 15.07.2006 which was corrected later on. It was further alleged that defendants were having 1/6 share in the property which has been transferred and not 1/9 share. The trial court framed following issues:-

"1. क्या वादपत्र में अभिकथित अभिबचनों के आधार पर विवादित बैनामा निरस्त होने योग्य है ?

2. क्या वाद अल्प मूल्यांकित है ?

3. क्या प्रदत्त न्यायशुल्क अप्रयाप्त है ?

4. क्या वाद बिना वाद कारण के प्रस्तुत किया गया है ?

5. क्या वाद धारा 34 व 41 विशिष्ट अनुतोष अधिनियम से बाधित है?

6. क्या प्रतिवादीगण वादी से विशेष हर्जा प्राप्त करने के हक़दार है?

7. वादी किस अनुतोष को पाने का हक़दार है ?

8. क्या दावा वादी बावत निरस्तीकरण बैनामाओ बेरुन म्याद है ?"

5. Issue no. 1 was in regard to fact, as to whether the alleged sale-deed executed by defendant nos. 2 and 3 in favour of defendant no. 1 was liable to be cancelled. The trial court found that the sale-deed executed on 26.06.2009 and 11.01.2011 by defendant nos. 2 and 3 in favour of defendant no. 1 was a registered sale-deed after payment of due consideration, while sale-deed alleged to be executed in favour of plaintiff dated 21.01.1999 was an unregistered document. The trial court dismissed the suit of the plaintiff on 20.09.2016. Against the said judgment, Civil Appeal No. 58 of 2016 was filed wherein lower appellate court framed following point of determination:-

"1. क्या अपीलार्थी /वादी बैनामा दिनांकित 26-06-2009 व 11-01-2011 को निरस्त करा पाने का अधिकारी है ?

2. क्या अपीलार्थी/वादी को वाद का वाद कारण प्राप्त है ?

3. क्या अपीलार्थी/वादी का दावा कालबाधित है ?

4. अनुतोष ?"

6. The lower appellate court found that sale-deed executed by defendant nos. 2 and 3 was a registered document and the plaintiff failed to establish that the sale-deed was against the provisions of Section 54 of Transfer of Property Act and thus dismissed the appeal on 30.01.2020. Hence, the present appeal.

7. Sri Ajendra Kumar, learned counsel appearing for the appellant laid emphasis to the fact that entry in the paka 11 dated 15.07.2006 itself shows that the property in question was recorded in favour of defendant nos. 2 and 3 prior to the death of Edal Singh @ Udal Singh, who died on 17.09.2006. He further laid emphasis on the fact that unregistered sale-deed dated 21.01.1999 exist in favour of the plaintiff-appellant and both the courts below were not correct to dismiss the suit and appeal of the plaintiff. He further submitted that share of Edal Singh @ Udal Singh in the property in dispute was to the extent of 1/9, but the sale-deed was executed for share 1/6 exceeding the right. Further, no consideration was passed on and the sale-deed was void.

8. Sri Satyaveer Singh, learned counsel appearing for respondent no. 1 submitted that paka 11 entry dated 15.07.2006 was due to the mistake of Revenue Inspector which was later on corrected. He further contended that the court below had not framed any issue in regard to the said fact and a finding has been recorded by trial court that revenue entries were corrected later on. He next contended that DW-2, Rajveer Singh and DW-3, Ravindra Pratap who were attesting witnesses to the sale-deed had proved the execution of sale-deed dated 26.06.2009 and 11.01.2011 and due sale considerations were passed on. Moreover, the sale-deed relied upon by the plaintiff dated 21.01.1999 was an unregistered document and the burden was upon the plaintiff to prove that Edal Singh @ Udal Singh during his life time had executed any sale-deed in his favour, which he failed to do so.

9. I have heard the respective counsels and perused the material on record.

10. The sole question before the Court is as to whether the plaintiff has proved his case as to the execution of sale-deed dated 21.01.1999 by Edal Singh @ Udal Singh in his favour, warranting cancellation of sale-deed dated 26.06.2009 and 11.01.2011 executed by defendant nos. 2 and 3 in favour of defendant no. 1.

11. As it is admitted to both the parties and is not in dispute that alleged sale-deed dated 21.01.1999 is an unregistered document whereby it is alleged that the land in dispute was transferred by Late Edal Singh @ Udal Singh in favour of the plaintiff for Rs.90. While, on the other hand, the sale-deed dated 26.06.2009 and 11.01.2011 are registered documents executed by two daughters of Late Edal Singh @ Udal Singh in favour of defendant no. 1.

12. Section 54 of Transfer of Property Act defines sale. The said provision is extracted hereasunder:-

"54. 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.--Such transfer, in the case of tangible immovable 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 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."

13. From the reading of aforesaid provision, it is clear that section deals with three subjects:- (i) Definition of Sale (ii) Mode of transfer by sale (iii) Contract for Sale.

(I) Definition

14. The definition indicates that in order to constitute a sale, there must be transfer of ownership from one person to another, i.e., all rights and interest in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property, or else it would not be a sale. It further says that transfer of ownership has to be for a ''price paid or promised or part-paid and part-promised'. Price thus constitutes an essential ingredient of the transaction of sale.

15. The words ''price paid or promised or part-paid or part-promised' indicate that actual payment of the whole of the price at the time of execution of sale-deed is not a sine qua non to the completion of the sale. Even if the whole price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs.100, the sale would be complete.

16. Thus, essential elements of a sale are:- (a) the parties; (b) the subject-matter; (c) the transfer or conveyance and (d) the price or considerations.

(ii) Mode of transfer by Sale

17. The first overlaps the second, for a transfer may in all case 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.

18. In terms of Section 54 of Transfer of Property Act as amended by Uttar Pradesh Act No. 2 of 1997, a contract of sale can be made only by registered instrument. The use of expression ''only' here indicates that under law, contract to sale has got to be entered into by a registered instrument. Where the sale-deed requires registration, title does not pass until the sale-deed is registered, even though the transfer of possession as well as payment of consideration takes place before registration of the document.

19. The provisions of this section as to the modes of transfer i.e. by registered instrument and by delivery of possession are exhaustive and a sale cannot be effected in any other way.

20. Where the deed is not registered, there is no transfer, and property does not pass. This is so even if the property is tangible immovable property of value less than Rs.100

(III) Contract for sale-

21. An agreement to sale does not create an interest in the proposed vendee in the suit property, but only creates an enforceable right in the properties. An ''agreement for sale' is not the same as ''sale', and the title to the property agreed to be sold, still vests in the vendor in case of an agreement for sale, but in the case of sale, title of the property vests with the purchaser. An ''agreement for sale' is an executory document whereas ''sale' is an executed contract.

22. In the case in hand, defendant nos. 2 and 3 who are the daughters of Late Edal Singh @ Udal Singh were recorded as legal heirs after death of Edal Singh on 17.09.2006 and after three years on 26.06.2009 and 11.01.2022 executed a registered sale-deed in favour of defendant no. 1 after receiving due consideration for sale. The execution of said sale-deed was proved by the attesting witnesses, DW-2, Rajveer Singh and DW-3, Ravindra Pratap. While unregistered sale-deed relied upon by the plaintiff could not be proved. Both the courts below have recorded categorical finding of fact as to the execution of registered sale-deed in favour of defendant no. 1 by defendant nos. 2 and 3 disbelieving the unregistered sale-deed alleged to have been executed by Edal Singh @ Udal Singh in favour of plaintiff, which thus needs no interference by this Court.

23. Section 68 of Indian Evidence Act, 1872 requires for the proof of execution of document required by the law to be attested. In the present case, the sale-deed executed in the year 2006 and 2011 by defendant nos. 2 and 3 in favour of defendant no. 1 was proved by attesting witnesses before the trial court, which warrants no interference by this Court.

24. Once, it is concluded by both the courts below that defendant nos. 2 and 3 who are the daughters of Late Edal Singh @ Udal Singh were recorded in the revenue records after his death had executed the sale-deed in favour of defendant no. 1 after three years needs no interference by this Court. Argument as to the entry made in paka 11 on 15.07.2006 has no legs to stand as the same was rectified later on after mistake was noticed, and there is no dispute to the fact that Edal Singh @ Udal Singh died on 17.09.2006 and the two alleged sale-deeds were executed after three years and five years from his death and not immediately after his death by his daughters, which could create any suspicion or doubt upon the conduct of defendant nos. 2 and 3.

25. The Apex Court in Civil Appeal No.8971 of 2010 (Kripa Ram (deceased) through Legal Representatives and others vs. Surendra Deo Gaur and others, decided on 16.11.2020 has held that the second appeal can be dismissed without even formulating the substantial question of law. Relevant paras 25 and 26 reads as under :

"25. In a judgment reported as Ashok Rangnath Magar v. Shrikant Govindrao Sangvikar (2015) 16 SCC 763, this Court held that the second appeal can be dismissed without even formulating the substantial question of law. The Court held as under:

"18. In the light of the provision contained in Section 100 Code of Civil Procedure and the ratio decided by this Court, we come to the following conclusion:

(i) On the day when the second appeal is listed for hearing on admission if the High Court is satisfied that no substantial question of law is involved, it shall dismiss the second appeal without even formulating the substantial question of law;

(ii) In cases where the High Court after hearing the appeal is satisfied that the substantial question of law is involved, it shall formulate that question and then the appeal shall be heard on those substantial question of law, after giving notice and opportunity of hearing to the Respondent;

(iii) In no circumstances the High Court can reverse the judgment of the trial court and the first appellate court without formulating the substantial question of law and complying with the mandatory requirements of Section 100 Code of Civil Procedure."

26. In view of the above findings, we do not find any error in the judgment and order of the High Court dismissing the Second Appeal. The present appeal is thus dismissed. Pending applications, if any, shall stand disposed of."

26. Considering the facts and circumstances of the case, this Court finds that the present appeal is concluded by finding of fact recorded by both the courts below which warrants no interference by this Court. No substantial question of law arises to be adjudicated herein.

27. The appeal fails and is hereby dismissed.

28. Let the lower court record be remitted to court below forthwith.

Order Date :- 27.06.2022

V.S.Singh