Angnaram Bulram Agrawal vs Vijaykumar Sampatrao Kuthe
2016 Latest Caselaw 490 Bom

                                                        1                         sa291.02.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                        
                            SECOND APPEAL NO.291/2002




                                                                
          Anganram s/o Bulayam Agrawal
          (Dead through LRs)

     1. Omprakash s/o Anganaram Agrawal,




                                                               
        aged about 67 years, Occ. Business.

     2. Jagdishprasad s/o Anganaram Agrawal,
        aged about 55 years, Occ. Service.




                                                
          Both r/o Old Bus Stand Road,
                             
          Gurunanak Ward, Gondia, Tq.Dist.
          Gondia.
                            
     3. Sangeeta @ Gayatri W/o Tarachand
        Agrawal, aged about 37 years,
        Occ. Household, r/o 429, Mohajhari,
        Tq. Dist. Lanji, M. P.
      


     4. Sou. Binadevi @ Geeta Basantrai
   



        Agrawal, aged about 44 years, Occ. 
        Household, 1/2694, Hanuman Temple
        Premises, Hiwari Nagar, Nagpur.     .....APPELLANTS





                                   ...V E R S U S...

          Vijaykuamr s/o Sampatrao Kuthe,
          aged about 26 years, Occ. Business,
          r/o Bajaj Ward, Gondia, Dist.





          Gondia.                                                ...RESPONDENT

     -------------------------------------------------------------------------------------------
     Mr. V. R. Mundra, Advocate for appellants.
     Mr. R. L. Khapre, Advocate for respondent.
     -------------------------------------------------------------------------------------------

                                                  CORAM:- A. B. CHAUDHARI, J.

DATED :- 10.03.2016

2 sa291.02.odt

ORAL JUDGMENT

1. Being aggrieved by judgment and decree dated

05.01.2002, passed by 1st Ad Hoc Addl. District Judge, Gondia in

Reg. C. A. No. 17/1998, confirming the judgment an decree dated

29.04.1998 passed by Jt. Civil Judge (Jr. Dn.), Gondia in Reg.C.S.

No.536/1987, the unsuccessful defendant has preferred the

present second appeal.

2. This Court, at the time of admission of this appeal,

framed the following questions of law.

1. Whether the Courts below have erred in

holding that the sale deed executed by the legal heirs of

deceased Mukim Khan in favour of the plaintiff/respondent passes the valid title to the plaintiff/respondent in view of the fact that the said sale

deed is not executed by all the legal heirs of deceased Mukim Khan under the Mohammedan Law? ... No.

2. Whether the Courts below have erred in holding that the defendant/appellant should have challenged the aforesaid sale/deed and since it is not challenged it is binding on him? ...Redundant.

3. Whether in view of the findings of the courts

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below that the case of forfeiture of tenancy under Section 111 (g) of Transfer of Property Act is not made out, the

provisions of Rent Control Order are applicable?

...Rent Control Order is not applicable.

3. In support of the appeal, Mr. Mundra, learned counsel

for the appellant vehemently argued that one more substantial

question of law arises in this case though the same was not raised

in any of the courts below. According to him, this Court should

allow to raise the said question, being a substantial question of

law. He submitted that Sections 23, 24 and 25 of the Registration

Act mandates that the legal and proper presentation of the sale

deed for registration after its execution must be made within four

months from the date of execution and that there is a further

power in the Registrar of four months only. Thus, after eight

months, there is no power at all for acceptance of presentation for

registration of the sale deed. According to him, in the instant case,

admittedly, execution of the sale deed was made on 11.12.1984

and the registration of the sale deed was made on 21.04.1986 and,

therefore, Registrar in the first place had no authority to register

the instrument and if at all he had wrongly registered the sale

deed, the same was beyond the total period of eight months and

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becoming illegal, conferring no title on the respondent-plaintiff on

the basis of the invalid and illegal sale deed. He fairly stated that

this question was never raised before the Courts below.

In support of his contentions, Mr. Mundra relied on

judgments in Smt.G.Kadambari w/o G.Kesavulu.vs.District Registrar

Of...2008 (2) ALD 662; Mast Ram..vs..Sant Ram; AIR 2010 HP 18;

Ibrahim Ashraf Patel and anr...vs. Jamrood Bee w/o Nizamoddin

Kazi; 2001 (3) Mh. L. J. 886; Motahar Ali ..vs.. Sk. Abdul Malek

and anr.; AIR 1957 calcutta 324; Gangaram Rambhau Zite and

ors...vs...Chindhu Dagadu Tikone, since deceased by his heirs and

LRs. Shantabai Chindu Tikone and ors.; 2002 (2) Mh. L. J. 770

4. Per contra, Mr. Khapre, learned counsel for the

respondent-purchaser vehemently opposed the plea on the ground

that a totally new question cannot be allowed to be raised for the

first time in the second appeal. At any rate that is the mixed

question of law and fact based on evidence and, therefore, such

question should not be allowed to be raised. Counsel for both the

parties relied on various judgments in support of their contention.

It is true, as contended by Mr.Khapre, that the question having

been raised for the first time in the second appeal, should not be

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allowed to be raised on the ground that the same may be the

mixed question of law and fact.

Mr. Khapre, learned counsel for the respondent, relied

on judgments in Raj Kumar Dey and ors..vs..Tarapada Dey and ors.;

AIR 1987 SC 2195; Krishna Kishore Firm.vs.The Govt. of A. P. and

ors; AIR 1990 SC 2292; Smt. Shanti Sharma and ors..vs..Smt.Ved

Prabha and ors.; AIR 1987 SC 2028; M/s. India Umbrella

Manufacturing Co. and others ..vs.. Bhagabandei Agrawalla (deaD)

by L.R.s and others; AIR 2004 SC 1321; Mohinder Prasad Jain v.

Manohar Lal Jain;AIR 2006 SC 1471(1); Bhavnagar Municipality

.v.s.. Union of India and anr.; AIR 1990 SC 717; FGP Ltd. v. Saleh

Hooseini Doctor and anr.; AIR 2009 SC (Supp) 2597.

5. In the peculiar facts and circumstances of the present

case and in view of the provisions of the Registration Act, I frame

the following question of law in addition.

4. Whether the registration of sale deed by Registrar on 21.04.1986 could be said to be illegal and invalid in law? ... No.

6 sa291.02.odt

6. Here, it is necessary to look into the provisions of

Sections 23, 24 and 25 of the Registration Act, which read thus:

23. Time for presenting documents:- Subject to the provisions contained in section 24, 25 and 26, no document other than a will shall be accepted for

registration unless presented for that purpose to the proper officer within four months from the date of its execution:

Provided that a copy of a decree or order may

be presented within four months from the day on which the decree or order was made, or, where it is applicable

within four months from the day on which it becomes final.

24. Documents executed by several persons at different times:- Where there are several persons

executing a document at different times, such document may be presented for registration and reregistration

within four months from the date of each execution.

25. Provision where delay in presentation is

unavoidable:-(1) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time hereinbefore prescribed in that behalf, the Registrar in cases where the delay in presentation does not exceed four

7 sa291.02.odt

months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration

- fee, such document shall be accepted for registration.

(2) Any application for such direction may be lodged with a Sub-Registrar, who shall forthwith forward it to the Registrar to whom he is subordinate.

7. Reading of the provisions of Sections 23, 24 and 25 of

the Registration Act shows that the presentation for registration

must be made within four months and further four months time is

provided in the case of contingency. In this case, the document

was executed on 11.12.1984 and was presented on the same day

i.e. on 11.12.1984. After presentation, the instrument of sale deed

was kept pending by Registrar as the No Objection Certificate from

the Income Tax Department was not produced, though admittedly

respondent had applied for No Objection Certificate to the Income

Tax Department. It was beyond the control of the respondent-

plaintiff to obtain No Objection Certificate from the Income Tax

Department and, therefore, neither the plaintiff nor the Registrar

could be blamed. The law does not accept performance of

impossibility of any person that is why what is relevant is the

presentation of instrument. No sooner the Registrar received No

Objection Certificate from the Income Tax Department on

8 sa291.02.odt

21.04.1986, the sale deed was registered in favour of the

respondent-plaintiff. It is the matter of common experience that

such No Objection Certificate like under the Income Tax Act or

Urban Land Ceiling Act etc. are issued after considerable delay and

it is never under the control of the party. But that does not mean

that the instrument could not be presented or registered or that

the registration made by the Registrar would become nullity. If

such an argument is accepted, the same would have devastating

consequence. Hence, the additional question no.4 will have to be

answered in the Negative.

8. Having disposed of the first contention, now I take up

the first substantial question of law. Mr. Mundra, learned counsel

for the appellant, contended that in the pleading as well as in the

evidence, it has been duly brought on record that the vendors of

the respondent-plaintiff were not all the parties to the sale deed

and the three co-owners of the suit property were not the vendors

along with the vendors in the sale deed. The property originally

belonged to one Mukim Khan and though majority of his legal

heirs had sold the property to respondent-plaintiff by the sale

deed, it did not confer valid and legal title on the respondent-

9 sa291.02.odt

plaintiff because all the legal heirs were not vendors though

majority of them were. He, therefore, submitted that the

respondent-plaintiff passed the defective title on the basis of

which, the suit against the appellant was not maintainable and

was required to be dismissed.

9. Per contra, Mr. Khapre, learned counsel for the

respondent, submitted that the appellant has been concurrently

found to be the tenant of Mukim Khan and, thereafter, the tenancy

was attorned explicitly by a notice of attornment after execution of

the sale deed by the respondent-plaintiff. The learned counsel for

the parties have relied on some judgments. Upon hearing learned

counsel for the the rival parties on this issue and on perusal of the

record, I find and rather counsel for the appellant has not disputed

that the appellant was tenant of Mukim Khan and that is the

concurrent finding of fact. It is the trite law that the tenant's right

to question the title of landlord is very limited in view of the law,

which is codified in Section 116 of the Evidence Act. In the

present case, none of the other legal heirs, who were not vendors

of the sale deed, have come forward to dispute title of the

respondent-plaintiff and admittedly the appellant being the tenant

10 sa291.02.odt

could have hardly defended by saying that the respondent was

defective title holder of the suit property and, therefore, he could

deny the title legitimately. The title is clear in the form of sale

deed and the appellant-tenant is not at all concerned whether the

title was defective only because all the other legal heirs not being

the vendors of the sale deed. However, it was for the other legal

heirs and not for the appellant-defendant-tenant to say so. In my

opinion, therefore, in the wake of Section 116 of the Indian

Evidence Act and the sale deed in favour of the respondent-

plaintiff by majority of the legal heirs of Mukim Khan, it must be

held that the valid and legal title passed to the respondent-

plaintiff. Consequently, question no.1 will have to be answered in

the Negative.

10. Now, so far as question No.2 is concerned, this

question is redundant and does not call for any answer.

11. On question no.3, Mr. Mundra, learned counsel for the

appellant, argued that the trial Court recorded a confused finding

so also the appellate Court about the applicability of Section 111

(g) of the Transfer of Property Act.

11 sa291.02.odt

12. Per contra, Mr. Khapre, learned counsel for the

respondent-plaintiff, invited my attention to the notice and

submitted that the first notice Exh.-51 was issued for attornment

of the tenancy in which immediately the appellant denied the title

of the respondent-plaintiff in clear terms and, therefore, the case

was the one of the forfeiture of tenancy. No sooner he denied the

title of respondent-plaintiff, he issued a notice for forfeiture of

tenancy under Section 111 (g) of the Transfer of Property Act and,

therefore, though the trial Judge did not correctly appreciate the

point, in paragraph 4 of the reasons recorded by lower appellate

Court, the factual details have been given correctly, which clearly

proves the issue of forfeiture of tenancy.

13. I have given my conscious consideration to the

submissions on this point raised by learned counsel for the parties.

Instead of repeating the facts, it would be appropriate to quote

paragraph 4 from the judgment of the appellate Court, which

reads thus:

"4. AS TO POINTS NO. 1 & 2:-The plaintiff purchased the property by registered sale-deed for Rs.42,000/-. The copy of the sale-deed is at Exh.50. The subject

12 sa291.02.odt

matter of the sale deed consist of two blocks i.e. Block no. 2 & 3. Out of two blocks, the deft. is in occupation

of some portion of west side. Out of Block no.2 as

monthly tenant. The plaintiff communicated about the change of ownership to the defendant and asked him to pay the rent. The defendant fails to comply. The

defendant is in arrears of rent from 11.12.1984 to 31.10.1987. The intimation was given by the plaintiff as regards the change of ownership is at Exh.51 i.e.

notice dated 6.11.1987. By reply Exh.123, defendant

denied the title of ownership of the plaintiff. The defendant claims to be the owner of the suit property by

principle of adverse possession. The defendant made attempts to record his name in the record of rights with Municipal authorities and revenue record but all the

attempts of defendant results in failure. Lastly, the

plaintiff forfeited the tenancy by notice dated 5/12/87 which is at exh.54."

14. From reading of the above facts, it is clear that the

respondent-plaintiff issued notice of forfeiture and, thereafter,

filed the suit. I have read the documents Exh.-51 and 54 and I am

satisfied that appellant-defendant in terms denied ownership of

the respondent-plaintiff inviting forfeiture of tenancy. Thereafter,

Exh.-54 was issued for forfeiture of tenancy and the suit was filed.

13 sa291.02.odt

Requirement of Section 111 (g) of the Transfer of Property Act

are, therefore, clearly satisfied. The finding recorded by the

appellate Court is clear and there is a reason to believe that the

learned lower appellate Court understood the controversy and,

therefore, put it the same in the aforesaid paragraph 4. I thus,

hold that there was a clear cut proof of forfeiture of tenancy as

found by lower appellate Court and that being so, the question of

obtaining permission under the Rent Control Order do not arise as

is the trite law. Hence, I answer the question no. 3 by holding that

the lower appellate Court has given a finding in paragraph 4 of his

judgment that there was a forfeiture within the meaning of Section

111 (g) of the Transfer of Property Act and hence the provisions of

Rent Control Order would not be applicable. I answer question

no.3 accordingly.

15. In view of above, following order is passed.

ORDER

(i) Second Appeal No.291/2002 is dismissed.

         (ii)           No order as to costs.
         (iii)          At this stage, Mr. Mundra, learned counsel for

the appellant prays for grant of stay of this judgment.

14 sa291.02.odt

Mr. Khapre, learned counsel for the respondent vehemently opposed the prayer made by learned counsel

for the appellant.

Since the interim order is in operation, this judgment is stayed for a period of eight weeks from today.

JUDGE

kahale