Bombay High Court
Sambha S/O Shivaji Dhale vs Ramchandra Dubdube on 12 September, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.183 OF 2000
APPELLANT: Sambha S/o Shivaji Dhale, aged about
48 years, Occ. Cultivator, R/o
On R.A.
Gadegaon, Tahsil Hinganghat, Distt.
Wardha.
-VERSUS-
RESPONDENT: Ramchandra S/o Govind Dubdube, aged
On R.A. about 49 years, Occ. Cultivator, R/o
Gadegaon, Tahsil Hinganghat, Distt.
Wardha.
Shri S. S. Dhengale, Advocate for the appellant.
Smt. V. A. Thakre, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: SEPTEMBER 12, 2017.
ORAL JUDGMENT :
1. This appeal has been filed by the original plaintiff
who is aggrieved by the judgment of the first appellate Court
by which the judgment of the trial Court has been reversed
and the plaintiff's suit has been dismissed.
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2. It is the case of the appellant - plaintiff that he is
the owner of House property no.39 and his name is mutated
in the records of the Gram Panchayat. On account of friendly
relationship with the defendant, he was permitted to occupy
the suit premises on the condition that it would be vacated as
and when he was called upon to do so. As possession was
not handed over despite issuing a notice, suit for possession
based on title was filed.
3. In the written statement, the claim was denied.
According to the defendant, he had purchased the suit
property from the plaintiff for a consideration of Rs.1500/-
on 13-9-1982. This document, however, was not registered.
It was further pleaded that the defendant had his name
mutated in the Gram Panchayat records.
4. The trial Court accepted the ownership of the
plaintiff. It held that the defendant was a licensee and on
that basis decreed the suit. The first appellate Court however
found that the evidence on record was not sufficient to hold
that the defendant was a licensee of the premises. It held
that though the sale deed was unregistered, the defendant
was entitled to continue in possession. The appeal was
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accordingly allowed and the suit was dismissed.
5. Shri S. S. Dhengale, learned Counsel for the
appellant submitted that the plaintiff having proved his title
and the fact that the defendant was in occupation as a
licensee, the suit could not have been dismissed despite
noticing that the sale deed on the basis of which the
defendant was claiming was unregistered. He referred to
provisions of Section 54 of the Transfer of Property Act, 1882
and submitted that such sale deed was required to be
compulsorily registered. It was then submitted that the
occupation of the defendant was as a licensee and he referred
to the evidence of the witnesses examined on that behalf. It
was submitted that as the defendant was a permissive
licensee there was no reason for issuing a written notice
demanding possession. The suit had been rightly decreed by
the trial Court.
6. Smt. V. A. Thakre, learned Counsel for the
respondent supported the impugned judgment. It was
submitted that the relationship of licensor and licensee was
not duly proved. The occupation of the defendant was in his
own right on the basis of the document dated 13-9-1982.
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It was submitted that the plaintiff did not seek possession on
the basis that the defendant was a licensee. No relief was
sought in that regard. She placed reliance on the judgment
in Rajendra Tiwary Vs Basudeo Prasad and another AIR 2002
SC 136 and submitted that the appellate Court rightly
dismissed the suit.
7. While admitting the appeal the following
substantial question of law was framed:
Whether the unregistered sale-deed
dated 13/9/1982 would be non est in
view of the provisions of Section 49 of
the Indian Registration Act, 1908 and
whether the contents of the sale-deed
could be read in evidence for collateral
purposes for conferring title in favour of
the Respondent/defendant?
8. I have heard the learned Counsel for the parties at
length and I have also perused the records of the case. In so
far as the title of the plaintiff is concerned, it has come on
record that he was the owner of the suit property and his
name was mutated in the Gram Panchayat records. According
to the plaintiff, on account of his friendly relations, the
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defendant was permitted to reside in the suit property.
According to the defendant, he had purchased the suit
property from the plaintiff on 13-9-1982. Admittedly this
document is not registered. In view of provisions of Section
54 of the Transfer of Property Act, 1882 and Section 49 of
the Registration Act, 1908 no title stood transferred in favour
of the defendant by virtue of the unregistered sale deed. The
trial Court rightly found that the defendant had no right to
rely upon this document for justifying his possession. On that
basis, it was held that the defendant's possession was
permissive.
The appellate Court despite noticing the fact that
the sale deed at Exhibit-18 was unregistered proceeded to
hold that the possession of the defendant was not as a
licensee. This finding has been recorded ignoring the
evidence of PW-2 at Exhibit-31 wherein he has deposed that
the plaintiff had permitted the defendant to occupy the
premises as a licensee. Merely because the plaintiff treated
the defendant as a trespasser the same was not sufficient to
refuse the relief of possession to the plaintiff.
9. As per the pleadings in the plaint, it is clear that
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the plaintiff was seeking possession on the basis of title. In
para 2 of the plaint, it was pleaded that the defendant was
permitted to occupy the same temporarily. Reading the plaint
as a whole, it is clear that the possession was sought from the
defendant on the basis of plaintiff's title. It was not necessary
to separately make a prayer for terminating the license. Once
the plaintiff's title was proved and the defendant could not
justify his legal right on the basis of sale-deed at Exhibit-18,
the suit was liable to be decreed. The ratio of the decision in
Rajendra Tiwary (supra) that larger relief than what is prayed
cannot be granted does not assist the defendant's case.
10. Hence, on consideration of the entire evidence on
record, I find that the trial Court had rightly decreed the suit.
The appellate Court committed an error while reversing the
said decree. The substantial question of law is answered by
holding that the sale deed at Exhibit-18 does not confer any
title on the defendant in view of Section 49 of the
Registration Act, 1908.
11. In view of aforesaid, the judgment of the appellate
Court in Regular Civil Appeal No.107/1997 is set aside. The
judgment of the trial Court in Regular Civil Suit No.6/1991 is
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restored. The second appeal is allowed in aforesaid terms.
No costs.
JUDGE
/MULEY/
