Dharam Veer Singh Tyagi vs Raj Kumar Singh Tyagi
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Allahabad High Court

Dharam Veer Singh Tyagi vs Raj Kumar Singh Tyagi on 3 July, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:107654
 
Court No. - 36
 

 
Case :- SECOND APPEAL No. - 294 of 1991
 

 
Appellant :- Dharam Veer Singh Tyagi
 
Respondent :- Raj Kumar Singh Tyagi
 
Counsel for Appellant :- Veer Singh, Alok Kumar Yadav, B.Malik, Ishwar Chandra Tyagi, R.K. Shukla
 
Counsel for Respondent :- N.Kumar, R.P.Shastri, Sundeep Shukla
 

 
Hon'ble Kshitij Shailendra,J.
 

1. Heard Shri Alok Kumar Yadav, learned counsel for defendant-appellant, Shri Sundeep Shukla, learned counsel for plaintiff-respondent and perused the record of the appeal.

2. Lower court record is available. The same has also been perused.

3. A perusal of back side of memo of appeal as well as order sheet shows that though the appeal was admitted by this Court by order dated 18.02.1991 and an interim order was also passed, no substantial question of law was framed by this Court.

4. Framing of substantial question of law while admitting the second appeal is a sine qua-non. The appeal was filed in the year 1991 and in the interest of justice, formally the instant appeal is being again admitted on the following questions of law:

(i) Whether the lower Appellate Court's judgment, being in violation of mandatory provisions of Order XLI Rule 31 of Code of Civil Procedure, is at all sustainable, inasmuch as no point for determination was framed by the lower Appellate Court?.

(ii) Whether reversal of decree drawn by the trial court without upsetting its findings in a proper manner and without appreciating that it was the plaintiff, who has to stand on his own legs, is sustainable as the Appellate Court has given more weightage to alleged weakness in the defence?

5. The matter has been heard at length.

6. The suit giving rise to the instant appeal was filed claiming a decree for mandatory injunction as there was a dispute regarding raising of constructions by the plaintiff over the land, which was claimed by both the parties in their ownership. It was the Gher, on which certain constructions in addition to an existing toilet were being raised.

7. The case of the plaintiff was that he was enjoying possession over the property since long and he had succeeded the same from his ancestors, whereas the defendant claimed title over the land at the strength of an unregistered sale deed dated 12.12.1962 executed by Smt. Mohania and Shri Ram Chandra.

8. The trial court dismissed the suit on 05.05.1987 on the ground that the plaintiff could not prove his title or possession over the land and that there were serious contradictions in the statements of plaintiff's witnesses. The trial court recorded that even in the Commissioner's report, which was confirmed subject to evidence, the assertions made by the plaintiff as regards existence of certain structures etc. and tying of cattle could not be established. The trial court also observed that the extent of property in dispute has been described as 12 X 14 Sq. Yards in the plaint, whereas witnesses produced by the plaintiff side deposed the extent of plaintiff's possession as 40 X 30 Sq. Yards. The trial court believed the defence of the defendant at the strength of sale deed of 1962 and statement of D.Ws. who had alleged 25 years possession of the defendant.

9. The lower Appellate Court has reversed the decree and decreed the suit. It was of the view that there was a document in the nature of rent deed, which shows that one Jagira had been let out the property at some ancient point of time by the ancestors of the plaintiff and he had handed over the possession of the same to the plaintiff, whereas the defendant had relied upon an un-registered sale deed dated 12.12.1962. The lower Appellate Court has also doubted the genuineness of the sale deed and observed that it "appears to be collusive". It also observed that the plaintiff had sufficiently established the identity of land and since the defendant could not prove title of his vendors, he had no case.

10. Shri Alok Kumar Yadav, learned counsel for the appellant has vehemently argued that the plaintiff has to stand on his own legs and insofar as weightage given to the aspect of non-registration of sale deed is concerned, the lower Appellate Court has fallen into a grave error of law, inasmuch as it is not the requirement of law that a sale deed involving sale consideration of less than Rs.100/- requires to be mandatorily registered. He submits that the requirement of registration as per Section 54 of the Transfer of Property Act read with Section 17 of the Registration Act, comes into existence when the sale consideration is over and above Rs. 100/-. He further submits that the plaintiff failed to bring on record any documentary evidence to establish that his ancestors were owners of the property in dispute and as against rent deed, which could not be proved in accordance with law, the defence case based upon a valid sale deed, which was not challenged, should have been accepted. He also submits that the Appellate Court has not framed any point for determination as required under Order XLI Rule 31 C.P.C. Shri Alok Kumar Yadav, learned counsel for the appellant in support of his submission based upon requirement of framing points for determination, has placed reliance upon a judgement of Apex Court in the case of United Engineers and Contractors vs Secretary to Government of Andhra Pradesh and others, (2014) 16 SCC 109.

11. Per Contra, Shri Sundeep Shukla, learned counsel for the plaintiff-respondent submits that rent agreement was filed and proved in accordance with law. He also submits that sale deed of 1962 does not mention as to how vendors of the defendants acquired ownership of the property and, therefore, the title of the defendant is under clouds and could not be read against long possession of the plaintiff.

12. Having heard the learned counsel for the parties and having examined the record, the Court finds that no document of title was filed by the plaintiff. As against the same, there is a sale deed existing in favour of the defendant. When the Court peruses the property described in the plaint, it finds that no number of the same has been given. It has only been described by boundaries and some measurements i.e. 12 Yards X 14 Yards = 168 Sq. Yards. The sale deed of 1962 also does not depict any number of the property purchased by the defendant. It, however, contains description of boundaries. The boundaries described in the plaint and those described in the sale deed prima facie do not match for want of clarity and cogent evidence.

13. Under the aforesaid facts and circumstances, it was the mandatory duty cast upon the trial court as well as lower Appellate Court to get the property clearly identified. However, it appears that Amin Commission issued to conduct spot inspection was required to submit a report as regards possession only. Though there is certainly a dispute of possession over the land, since there is a sale deed on record, the dispute of title is intrinsically involved. Therefore, exercise to identify the property in dispute on the spot was mandatory in the facts and circumstances of the case.

14. The Court also finds that no point for determination was framed by the lower Appellate Court and the judgment of dismissal has been reversed by giving over-weightage to non-registration of the sale deed of 1962 which, as aforesaid, was not the requirement of law.

15. In view of cryptic nature of adjudication of rights made by the courts below, coupled with the fact that first Appellate Court has the same powers as that of trial court as per Section 107(2) of Code of Civil Procedure, 1908 and the decree in accordance with law has to be passed as per Order XLI Rule 33 C.P.C., this Court is of the view that:-

(i) The lower Appellate Court's judgment is liable to be set aside for want of compliance of Order XLI Rule 31 of C.P.C.

(ii) Reversal of finding of the trial court by the lower Appellate Court in a cryptic manner also does not appear to be justified.

16. Both the questions of law framed herein-above are, therefore, answered in favour of defendant-appellant with the observation that Civil Appeal is required to re-decided after getting the proper survey/spot inspection conducted in such manner, so that the boundaries mentioned in the plaint and those mentioned in the sale deed of 1962 are located on the spot.

17. The instant appeal is, accordingly, allowed.

18. The judgment of lower appellate court dated 14.01.1991 passed by Additional District Judge, Bijnor in Civil Appeal No. 91 of 1987 (Raj Kumar Singh Tyagi vs Dharmveer Singh and others) is set aside.

19. The matter is remanded to the lower Appellate Court for fresh adjudication of the said Civil Appeal in the light of observations made herein-above.

20. Office is directed to remit the lower court's record to the District Judge, Bijnor, who shall revive the file of Civil Appeal No. 91 of 1987 and shall assign the same to the competent court for fresh decision in accordance with law.

21. After assignment, the appeal shall be listed before the appropriate Court on 13.08.2024, on which date both the parties shall appear through counsel.

22. Since there was an interim order passed in this appeal in the year 1991, which remained operative over a period of 33 years and also considering the nature of lis and to avoid conflict on the spot, it is directed that the parties to the litigation shall maintain status quo in respect of nature and possession as well as constructions existing over the spot till disposal of the aforesaid Civil Appeal.

23. The Appellate Court shall decide the appeal by the end of this year, i.e. 2024, after carrying out necessary exercise, as already observed in this judgment. The Appellate Court shall be at liberty to permit the parties to lead additional oral and documentary evidence.

24. Allowed with the aforesaid observations.

Order Date :- 3.7.2024

Sazia