Bombay High Court
Gulam Murtuza Khan Gulam Ahmed ... vs Ramdas Banji Ilme on 12 August, 2015
Bench: A.S. Chandurkar
wp1947.14.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.1947 OF 2014
PETITIONER: Gulam Murtuza Khan Gulam Ahmed
Khan, Aged about 35 years, Occu.
Agriculturist, R/o Anant Nagar,
Rathod Layout, Nagpur Tq. & Distt.
Nagpur.
-VERSUS-
RESPONDENTS:
ig 1. Ramdas Banaji Ilame, Aged 64 years,
Occ: Agriculturist,
2. Sau. Shindubai Ramdas Ilame, Aged
56 years, Occ: Household,
3. Dilip Ramdas Ilame, Aged 45 years,
Occ:Business,
4.
Vinod Ramdas Ilame, Aged 35 years,
Occ: Business, (All Respondents
Nos.1 to 4 are R/o Mangarul Chavala,
Tq. Nandgaon (Khnd) Distt.
Amravati.
Shri M. S. Abbasi, Advocate for the petitioner.
Shri Sawan Alaspurkar, Advocate for the respondent Nos.1 to 4.
CORAM: A.S. CHANDURKAR, J.
DATED: 12
AUGUST, 2015.
th
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned Counsel
for the parties.
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2. The petitioner who is the original plaintiff is aggrieved by
the order passed below Exhibit-68 in Special Civil Suit No.11/2009
whereby on the objection raised by the respondents, the document dated
29-6-2006 has not been permitted to be exhibited.
3. The petitioner has filed suit for specific performance of
agreement dated 29-6-2006. Along with the prayer for specific
performance, there is also prayer to direct the respondents to deliver
vacant possession of the suit property. During the trial on 29-11-2012,
an order for impounding said document was passed and said document
was accordingly impounded. Thereafter, during the course of the
petitioner's evidence when the agreement dated 29-6-2006 was sought
to be exhibited, an objection was raised by the respondents that the
document dated 29-6-2006 was not registered. The trial Court by the
impugned order upheld the said objection on the ground that as the
document was not registered, it could not be exhibited.
4. Shri M. S. Abbasi, learned Counsel appearing for the
petitioner submitted that though there is recital in the agreement that
possession of the suit property was delivered to the petitioner, the same
was in fact, never delivered and hence, along with the prayer for specific
performance, a prayer for possession was also made. It was submitted
that as the possession was never delivered, there was no necessity of
registering the document in question. The learned Counsel placed
reliance on the judgment of the Division Bench in Civil Application (Z)
No.1/2013 in L.P.A. St. No.18726 of 2012 in W.P. No.1701 of 2012
wp1947.14.odt 3/6
(Sadanand Laxmikant Jahagirdar & Ors. Vs. Shripad Ramakant
Jahagirdar & Ors decided on 13-1-2015 and submitted that the
document in question could be exhibited and considered for collateral
purposes.
5. Shri S. S. Alaspurkar, learned Counsel appearing for the
respondents supported the impugned order. He submitted that as the
suit was based on the document dated 29-6-2006 in which it was stated
that possession was handed over, said document was required to be
registered. He relied upon provisions of Section 17(1-A) and Section 49
of the Registration Act, 1908 (for short, the Act of 1908)and submitted
that unless the agreement was registered, the same could not be duly
exhibited. The learned Counsel placed reliance on the decision in
Gurbachan Singh v. Raghubir Singh, AIR 2010 Punjab and Haryana 77.
He then submitted that there was no pleadings as to why the document
was not registered and hence, the petitioner could not be permitted to
rely upon said document even for collateral purposes under Section 49
of the Act of 1908. He placed reliance on the decision in Pandurang
Dharmadhikari Vs. Kusumtai @ Malini Vasantrao Bhagwat 2015(1) ALL
MR 168.
6. The agreement dated 29-6-2006 refers to the terms and
conditions under which the respondents agreed to sell the suit property
to the petitioner. There is a recital that possession was being handed
over for the purposes of demarcating the plots and for their subsequent
sale. In the suit, it has been pleaded that the defendants did not
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complete the contract and hence, the relief of specific performance was
sought. A prayer for possession of the suit property was also made.
7. The provisions of Section 17(1-A) of the Act of 1908
stipulate that a document in relation to a contract to transfer any
immovable property for consideration for the purposes of Section 53-A
of the Transfer of Property Act, 1882 is required to be registered if it is
executed after 24-9-2001. Similarly, the provisions of Section 49 of the
Act of 1908 also precludes any document required to be registered by
Section 17 of the Act of 1908 or by any provision of the Transfer of
Property Act, 1882 but which is not registered to be received in
evidence. However, the proviso to Section 49 of the Act of 1908 permits
such unregistered document to be received as evidence of any collateral
transaction.
8. In Gurbachan Singh (supra) on which reliance was placed
by the Counsel for the respondents it was held that an unregistered
agreement on the basis of which the plaintiff claims to be in possession
does not give a right to seek a decree for specific performance and the
plaintiff is not entitled to retain possession under the garb of such
agreement. It needs to be mentioned that the Division Bench of the
Punjab and Haryana High Court in Ram Kishan and another Vs. Bijender
Mann and others 2013(2) Civ CC 188 on a reference disagreed with the
view taken in Gurbachan Singh (supra) and held as under in para 13:
"13. We therefore, hold that :
(a) a suit for specific performance, upon an
unregistered contract/agreement to sell that
contains a clause recording part performance of
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the contract by delivery of possession or has been
executed with a person who is already in
possession shall not be dismissed for want of
registration of the contract/agreement based;
(b) the proviso to Section 49 of the Registration
Act, legitimises such a contract to the extent that,
even through unregistered, it can form the basis of
a suit for specific performance and be led into
evidence as proof of the agreement or part
performance of a contract.
We, therefore, express our respectful disagreement
with the judgment in Gurbachan Singh v. Raghubir
Singh (supra) and affirm the judgment in Mool
Chand Mindhra v. Smt. Indu Bala,
MANU/PH/2555/2011:(2011-3)163 P.L.R. 378
(R.S.A. No.2056 of 2011). The reference is
answwered accordingly."
ig In the present case, the plaintiff is not seeking to protect his
possession under the provisions of Section 53-A of the Transfer of
Property Act, 1882 but has in fact prayed for delivery of possession.
9. The question regarding consideration of an unregistered
document for collateral purposes was considered by the Division Bench
in Sadanand Jahagirdar (supra) and it was held after considering the
decision of the Supreme Court in S. Kaladevi Vs. V. R. Somasundaram
and others 2010 (5)Mh.L.J. 320 that such document could be considered
as evidence for any collateral transaction not required to be effected by
registered instrument. Said view has been followed in Writ Petition
No.4201/2014 - Bhimrao Jadhav Vs. Nirmala Mendhe decided on
3-8-2015.
Considering the facts of the present case wherein prayer for
possession has also been made in the suit, the petitioner can be
permitted to rely upon the document dated 29-6-2006 by duly exhibiting
wp1947.14.odt 6/6
the same. It is not in dispute that the defendants are actually in
possession and hence relief of possession is sought by the plaintiff.
Therefore, refusal to exhibit the document dated 29-6-2006 on the
ground that it is not registered is not justified. The aspect regarding
absence of the pleadings in relation to the document not being
registered would not prevent the same being exhibited especially when
there is a prayer for possession that is made in the plaint. In these
peculiar facts, the ratio of the decision in Pandurang (supra) would not
be applicable.
ig In view of aforesaid, the order passed by the trial Court
refusing to exhibit the document in question cannot be sustained.
Accordingly, the order dated 18-11-2013 is set aside and the trial Court
shall exhibit the document dated 29-6-2006. It is made clear that
exhibition of the document is for collateral purposes under Section 49 of
the Act of 1908. However, the trial Court shall independently consider
the evidentiary value of said document and it would be for the petitioner
to prove its contents.
11. Rule is made absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
