Krishna Laxman Bhatkar (Since ... vs Vithal Ganesh Athavale
2003 Latest Caselaw 1194 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard counsel for the appellants and the respondent.

2. This second Appeal is filed by the original defendant. The Plaintiff had filed a suit against him for getting possession of the half of the land vide Suit No. 10 of 1985 before the Civil Judge, Senior Division, Ratnagiri. This suit was decreed with costs and the defendant was directed to deliver possession. The defendant preferred appeal against the said judgment and decree before the District Judge, Ratnagiri. His appeal was dismissed and the decree of the trial Court was confirmed, hence this second Appeal.

3. At the time of admission of this appeal ground Nos. 24 and 25 which appear to have been added were considered grounds involving substantial questions of law. Thereafter Justice Chitre, passed an order dated 18-3-2002 found that no substantial questions of law were formulated, he therefore formulated three questions as substantial questions of law. They are as under :

1. Whether in the facts and circumstances of this case the rectification of deed to sale-deed in question needs to be registered?

2. Whether the vendor of the appellant is estopped from denying the obligations incurred by him by virtue of the sale-deed, dated 25-6-1976 executed by him in favour of the appellant?

3. Whether the judgment and decree assailed is incorrect, perverse and illegal?

4. Now when the matter was listed for final hearing Mr. Rane for the appellant has formulated substantial questions of law as under;

1. Whether the purported framing of the general points of determination by the Lower Appellate Court as sought to be done is in conformity with the mandatory provisions of Order 41 Rule 31 of the Code of Civil Procedure 1908 and whether the Judgment of the lower Appellate Court is vitiated for want of compliance with Order 41 Rule 31 of the Code of Civil Procedure, 1908?

2. Whether on the plaintiffs Application (Exhibit 79) in suit No. 85 of 1978 pursuant to which name of defendant (D-3 therein) was deleted (vide Order dated 16-10-1984), without the permission to withdraw and without the liberty to institute a fresh suit against Defendant (D-3 therein) in respect of the subject-matter of such suit or such part of the claim, not being applied for and not being granted /obtained, the plaintiff is precluded from instituting fresh suit (viz RCS No. 10/1985) in respect of such subject-matter or such part of the claim under Order 23 Rule 1(4) of the Code of Civil Procedure, 1908 and whether the plaintiffs suit is barred by the provisions of Order II Rule 2(2) and/or Order II Rule 2(3) of the Code of Civil Procedure 1908?

3. Whether in the facts and circumstances of this case the Deed of Rectification dated 7-6-1977 (Exhibit 57) to Registered Deed of Sale dated 25-6-1976 (Exhibit, 46) needs to be registered under Section 17(1) of the Indian Registration Act?

4. Whether in the facts and circumstances of this case when the Deed of Rectification dated 7-6-1977 (Exhibit 57) has been exhibited by the Trial Court, and evidence of attesting witness thereto has been permitted to be lead (w/o objection from the plaintiff) and execution and signature and handwriting has been proved as per Sections 67 and 68 of the Indian Evidence Act whether the Deed of Rectification can be relied upon?

5. Assuming that the Deed of Rectification dated 7-6-1977 exhibited at Exhibit 57 which the Attesting Witness proved that the plaintiff signed and executed in his presence, is required to be registered, it was a substantial question of law not to rely upon it as an admission in writing by the plaintiff under the Indian Evidence Act as the plaintiff failed to explain the admission in his deposition by merely denying its execution?

6. Whether it was a substantial error of law not to grant protection under Section 43 of the Transfer of Property Act to the defendant (viz. Transfer by unauthorised persons who subsequently acquired interest in property transferred) and the plaintiff is estopped by denying the obligations incurred by him by virtue of the Registered Deed of Sale dated 25-6-1976 (Exhibit 46) read with the Deed of Rectification dated 7-6-1977 (Exhibit 57) executed and the transfer operates on the interest which the plaintiff acquired in the property by virtue of the Compromise Decree.

7. Whether in view of the Deed of Rectification dated 7-6-1977 (Exhibit 57) stating that the entire land with 150 Mango trees was intended to be sold by plaintiff to defendant, and stating that possession of entire land with 150 Mango Trees was with the Defendant from the date of the Registered Deed of Sale dated 25-6-1976 (Exhibit 46), the case will be covered by the protection under Section 53A of the Transfer of Property Act and such Rectification Deed requires no registration.

8. Whether the Lower Appellate Court was right in holding that the Commissioners map of the suit land showing 150 Mango trees in whole of the land was drawn in the absence of plaintiff, for want of such assertion in his deposition and for want of any objection filed by plaintiff to the said Commissioners Map in the lower Appellate Court.

9. Whether the Judgment and Decree assailed is incorrect, perverse and illegal.

5. He made submissions with regard to these questions only and in reply Mr. Godbole argued on those submissions only. therefore, it will be taken that substantial questions of law so formulated and given by Mr. Rane and reproduced above are the only questions involved in this appeal.

6. Firstly, according to Mr. Rane, the appellate Court did not formulate points for determination while deciding the appeal. He contended that number of points were urged before the appellate Court but the appellate Court formulated only three questions, namely :

1. Whether the present appellant defendant prove that trial Court was wrong and decreed the suit of the respondent plaintiff.

2. Whether the impugned order deserves interference of this Court?

3. What order?

7. Mr. Rane relied upon the following three Judgments in support of his contentions and contended that when the appellate Court did not formulate points for determination as provided by Order 41 Rule 31 of the Code of Civil Procedure, the judgment was liable to be set aside and the matter was required to be remanded to the trial Court.

1. Vishwas Balu v. Ghasiram Ramratan Jajum.

2. Biswanath Prasad v. Dwarka Prasad.

3. Arumoorthi Chettiar v. Secondary Education Committee of Vallala Sangam of Vadugupatti

8. As against this, Mr. Godbole relied upon the judgment of the Supreme Court Ramachandra Ayyar v. Ramalingam Chettiar and also relying upon Section 100 of the Civil Procedure Code contended that when the perusal of the judgment of the appellate Court shows that the appellate Court has applied its mind to all the submissions made, the documents relied upon and the evidence adduced and has given cogent and convincing reasons for accepting or rejecting each of the submissions made by the respective parties, then merely because points for determination was not framed like framing of issues in the trial Court that would not vitiate the judgment.

9. Further contention of Mr. Godbole in that regard was that this being the Second Appeal, the substantial question of law should be involved in the Appellate Court's Judgment. Not framing points for determination by the appellate Court can at the most be considered as a procedural irregularity not involving any substantial question of law.

10. I find considerable force in the submissions made by Mr. Godbole. Supreme Court judgment relied upon by him and referred to above squarely applies to the facts of the case. The appellate Court while deciding the appeal has considered each and every submission made by the appellant and given his findings. The judgment of the appellate Court shows that the appellate Court has applied its mind to all the submissions made, the documents relied upon and the evidence adduced and has given cogent and convincing reasons for accepting or rejecting each of the submissions made by the respective parties arid therefore merely because the points for determination were not framed, like framing of the issue that would not itself vitiate the judgment nor that could be a case for remand to the appellate Court. In the Judgment relied upon by Mr. Rane this judgment of the Supreme Court is not referred. Further the judgment of the Supreme Court relied upon by Mr. Godbole squarely applies to this case, therefore this contention and objection of "Mr. Rane is required to be rejected, Point No. 1 of the substantial question is therefore answered in the negative and against the appellant.

11. Regarding point No.2, Mr. Rane contended that plaintiffs had initially filed a suit vide Suit No. 85 of 1987 and in that suit the appellant was defendant No. 3. That suit was compromised by the plaintiff after deleting the name of the defendant No.3 and therefore according to Mr. Rane the plaintiff could not have filed the second suit i.e. the present suit No. 10 of 1985 and he was debarred from filing the second suit for similar reliefs by virtue of Order XXIII Rule 1 (3) of the Civil Procedure Code. Mr. Godbole had pointed out in that regard that in Suit No. 85 of 1987, firstly no relief was claimed against the appellant, secondly whatever relief was claimed was claimed for protection of the interest of the appellant as well as the defendant i.e. who were the plaintiffs in that suit, and thirdly in the written statement' in the present suit the Defendant himself admitted that he was financing that litigation. A perusal of the written statement filed by the present appellant-defendant in Second Suit No. 10 of 1985 clearly shows that this appellant was making all the expenses in the suit No. 85 of 1987 necessary allegations in that regard and admission of the Defendant also could be found in paragraph 6, it will be therefore clear that firstly in suit No. 85 of 1978 even though the appellant was jointed as a defendant he was actually with the plaintiff. Secondly, there was no relief substantially against him and the Suit was against other defendants and thirdly it was this appellant-defendant who was spending in the litigation on behalf of the plaintiff in that suit. Therefore deleting the name of the defendant from that suit and then filing suit No. 10 of 1985 cannot be a bar in the way of the plaintiff under Order XXIII Rule 1(3) of the Code of Civil Procedure as contended by Mr. Rane, this contention is also to be rejected. Finding on Point No. 1 in this regard I has to be given against the appellant and .his objection is required to be rejected.

12. The next contention of Mr. Rane as per point No. 6 was that the appellant was entitled for protection under Section 43 of the Transfer of Property Act. This provision provides if a person does not have authority to transfer certain immovable property but professes to transfer such property for consideration, and subsequently he acquires interest in the property then transferor will not be permitted to say that he had no interest in the property at the time of the transfer.

13. However, when Mr. Godbole read Section 43 Mr. Rane conceded that this section would not be of any help to the appellant because the section was attracted only when the transferor fraudulently or erroneously represented that he is authorized to transfer certain immovable property. Mr. Rane conceded that it was not the case of the appellant that there was any fraudulent or erroneous representation by the plaintiff about his being owner of the entire land. Even a perusal of the plaint and evidence and the sale clearly shows that plaintiff has every where stated that he had 8 Anna share in the property and he had sold 8 Anna share. The plaintiff has nowhere stated that he was the full owner of the entire land and it is not the case that on such a representation the defendant entered into transaction of purchase. In view of this factual position this Section 43 and the protection granted to the purchaser is not available to the appellant-defendant.

14. Mr. Rane conceded later on that Section 43 of the Transfer of Property Act can only apply where there is a fraudulent transfer or erroneous representation by vendor. Mr. Godbole pointed out that it is nowhere the case of the appellant that the transfer in his favour was fraudulent or based on erroneous representation. In view of clear position of law Section 43 therefore cannot be of any help to the Appellant.

15. So far as deed of Rectification is concerned, Mr. Rane has raised point Nos. 3, 4, 5 and 7. It is therefore necessary to find out what that Rectification Deed is. The original Sale-Deed between the plaintiff and the defendant is dated 24-6-1979 Exhibit 44. In this sale-deed it is specifically mentioned that the plaintiff had sold his 8 annas share i.e. half share in the property to the extent of 4 acres 15 gunthas only. This property consisted of two survey numbers but it was a one single unit. The plaintiff had sold his one half portion which was on the northern side. Admittedly the plaintiff was not the owner of the remaining half portion and he could not have sold the portion over which he had no right. The defendant is trying to heavily rely upon the fact that what was sold to him is 150 mango trees and even if 150 mango trees are spread over the area of the entire 8 acres and 30 gunthas of land then he is entitled to get title over the entire land. Obviously this cannot be permitted because the parties must go by the written document, namely, Sale-Deed and when in the Sale Deed it is specifically written that plaintiff sold only one half portion, i.e. 8 annas in both the survey numbers and area is also specifically mentioned then the defendant cannot claim the entire area of 8 acres 30 gunthas to be his under that sale-deed, by contending that he has purchased 150 mango trees wherever they might be situate. This aspect was rightly considered by the trial Court in its judgment in para 8 and claim of the appellant was rightly rejected in that regard.

16. In order to overcome this problem the defendant is heavily relying upon Rectification Deed dated 7-6-1977 - Exhibit 49. Rectification deed is purported to have been signed by the plaintiff wherein he is alleged to have written that description given in the original sale-deed of the land sold to the defendant is 4 acres and 15 gunthas was a mistaken description and he had in fact sold the entire area i.e. 8 Acre 30 gunthas.

17. The plaintiff has clearly denied the execution of rectification deed. In cross-examination the plaintiff was confronted with said document. However, he specifically denied having executed he said document and also denied his signature. He also stated that he does not know two persons who are alleged to have attested this document. He has also denied to have gone to the Sub-Registrar for Registration. (It is to be noted that this document i.e. Rectification Deed is unregistered). No attempt is made in the cross-examination to bring on record the circumstances in which the rectification deed was required to be executed and at whose initiative the plaintiff executed the same. Apart from the said vital fact that goes against the defendant in that regard the defendant did not enter the witness box at all. There is no evidence of the defendant on oath about the circumstances in which even the original transaction took place and the circumstances in which the so-called rectification deed was brought into existence. Further there is no evidence of the defendant on oath about execution of the Rectification Deed by the plaintiff in his presence. Nor the defendant gave any evidence about the presence of the attesting witnesses and from where they were called and why document was not registered. There was no reason for the defendant to withhold his evidence and therefore strong adverse inference has to be drawn against the defendant not only regarding this issue but regarding his entire defence. Even though defendant has tried to prove the attestation by examining one witness, that evidence too is not sufficient in the circumstances of the case and for non-examination by the defendant himself on any issue involved in the suit. Therefore without going into the question as to whether Rectification Deed requires registration or not, this issue also has to be answered against the Defendant.

18. Since Exhibit 57 i.e. Rectification Deed is not proved to have been executed by the plaintiff, its contents cannot be used against the plaintiff as admission by the plaintiff or the fact which is against his interest. Even on the point of registration of the rectification deed. Mr. Rane contended on the basis of judgment of Madras High Court Arumoorthi Chettiar v. Secondary Education Committee of Valtala Sangam of Vadugupati, wherein the Madras High Court held that the document of rectification consequent upon mutual mistake does not require registration. In that case one Sankaranarayana Pillai executed sale-deed on 22-7-1943 in respect of 87 Acres and 28 cents. It is property of two vendees. Subsequently he executed document Exhibit B-4 by Sankaranarayana Filial to the effect that entire area of 111 acres and odd was agreed to be sold under Exhibit B-23 and that by a mutual mistake 24 acres and odd set out in Schedule 8. Exhibit B-4 were omitted to be included in Exhibit B-23 and therefore Sankaranarayana Pillai was executing the rectification deed Exhibit B-4 to point out, this mutual mistake. In fact it appears from the judgment of Madras High Court that registration or non-registration was not point of dispute before the Madras High Court. Paragraph 5 of the said judgment reads as under :

"It is not a point of dispute raised before me that this document is defective for want of registration. The point of law urged before me was that the plaintiff in attempting to make out that the arrangement between the parties at the time of Ex. B-4 was really one for the sale of 24 acres and odd for a consideration of Rs. 1000 would be debarred by Ss. 91 and 92 of the Evidence Act."

19. It will therefore be clear that registration or non-registration of the rectification deed of the above nature was not a question involved before the Madras High Court. As against this Mr. Godbole relied upon the Judgment of the Supreme Court Sunil Kumar Roy v. M/s. Bhowra Kankanee Collieries Ltd. In that case respondent before the Supreme Court had instituted a suit against the appellant for a money claim on account of royalty on all kinds of coke despatched during certain period. The appellant contested the suit on the basis of an arrangement arrived at with the Eastern Coal Co. in accordance with the terms of the lease dated 17-5-1946. The trial Court accepted the plea of the appellant about reduction of royalty and it also held that Exhibit A-4 in which the agreement or arrangement was incorporated did not require compulsory registration and was admissible in evidence. The suit was dismissed. Respondent No. 1 preferred appeal before the High Court. The point of admissibility of Exhibit A-4 for want of registration was raised but the High Court did not give any decision on it. Therefore when the matter went before the Supreme Court, the Supreme Court in paragraph 3 initially held that this contention cannot be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty is not set aside. Further however the Supreme Court held that:

"Even on the assumption that a mutual arrangement or agreement as evidenced by Exh. A-4 was arrived at between the appellant and the Eastern Coal Co. Ltd., we are unable to agree that any reduction in the rate of royalty could have been effected by means of Exh. A-4 which had not been registered under the provisions of the Indian Registration Act. It is well-settled by now that a document which varies the essential terms of the existing registered lease, such as the amount of rent, must be registered.

20. Though the aforesaid judgment of the Supreme Court is on a different type of document, the so-called rectification deed relied upon by the defendant in this case is of a more serious and severe consequence. It adds to the property already sold 4.15 acres from 8.30 acres and therefore applying the analogy of the Supreme Court Judgment it has to be held that the document requires registration.

21. However, since I am giving my positive findings that the defendant failed to prove the due execution of the rectification deed and has failed to examine himself, his case is required to be rejected outright in this regard.

22. The last point that was raised as per point No. 8 according to Mr. Rane was when the Court Commissioner went to the suit property he found that there were 150 mango trees in the whole of the land, which clearly shows that what was sold to the defendant was land coming under 150 trees and not the land of a particular area and measurement. He also contended that plaintiff has not filed any objection to the Commissioner's map and therefore it should be held that the defendant has purchased all the 150 trees whatever be the land under them.

23. This contention of the appellant is required to be rejected firstly because both the Courts below have given convincing and cogent reasons and there is no perversity in the findings of the appellant in that regard. Secondly, if the prime intention of the sale deed was to sell 150 trees irrespective of the area covered there was no necessity to specifically mention survey number and the fact that the plaintiff was having only 8 Anna share and he was selling his 8 Anna share of 4 acres and 15 gunthas in the land. Admittedly the plaintiff was not the full owner of the land. He had only 50% of the share, therefore, what he could have sold was his share and nothing more and as rightly held by the appellate Court the sale deed is of 25-6-1976. The Court Commissioner visited the spot much later. Then nothing in the sale-deed as to the age of those 150 trees at the time of sale deed and as rightly held by the appellate Court it is possible that during the intervening period many of the old trees might have fallen or cut. In any case when the intention of the party is evidenced by the sale-deed to sell particular and specific portion of land and that too to the extent of 50% share and when the land is found to be more in area then the purchaser cannot get anything more than what is sold to him and he cannot for his own convenience take advantage of number of trees being mentioned in the sale deed. In fact it was all the more necessary in the circumstances to examine himself on oath and make himself available for cross-examination to the extent of this conflict to be taken warrant exclusion; (iv) where the urgency of taking action demands its exclusion or where the need for urgency would be paramount, situation, namely sale of 50% of the land by the plaintiff and existence of 150 trees.

24. It will therefore be clear that both the Courts below have rightly appreciated the claim of the plaintiffs. I do not find any reason 'to set aside the findings of both the Courts below. The substantial questions of law framed by Mr. Pane and accepted by the other side on the date of argument and reproduced above in paragraph 4 of this Judgment are answered accordingly and all of them are against the appellants. Consequently the appeal is dismissed with costs throughout.