Nayeem Nazir Khan vs Mr. Farooq Jusaf Motiwala And Ors
2021 Latest Caselaw 3479 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.5514 OF 2019


     Nayeem Nazir Khan                              ....   Petitioner

             Vs.

     Mr. Farooq Jusaf Motiwla & Ors.                ....     Respondents


     Mr. Kishor K. Malpathak for Petitioner.
     Mr. Tushar N. Sonawane for Respondent No. 3.
     Mr. P.P. Pujari, AGP for Respondent Nos. 4 and 5.


                                         Coram : NITIN W. SAMBRE, J.

Date : 24TH FEBRUARY, 2021

P.C.:

1. The order impugned dated 17th December, 2018 passed by

Civil Judge, Senior Division, Thane rejecting the prayer of Petitioner-

Plaintiff for exhibiting the document, which is titled as 'Agreement of

Sale' dated 17th December, 2009, as the Court held that since the

document is not registered under Section 17 of the Registration Act,

same cannot be exhibited in evidence.

2. The submissions of learned counsel for the Petitioner are,

the suit is for simplicitor perpetual injunction and declaration as the

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Petitioner is claiming title based on the aforesaid document, as the

Petitioner's case is on the title of aforesaid document.

3. The Petitioner claims that so as to claim injunction and

declaration, restraining the defendants from disturbing his possession,

the aforesaid document can definitely be taken into account by the trial

Court for the purpose of inferring possession.

4. So as to substantiate his contention, he has drawn support

from the judgment of Apex Court in the matter of P. M. Anand Babu and

Ors. Vs. Mir Akbar Ali Khan and Another, reported in AIR 2004 Andhra

Pradesh 243, particularly paragraphs 9 and 10, which reads thus :

"9. It is explicit from the pleadings of the parties therein that there is no dispute with regard to the possession of the property by the plaintiff. The dispute is whether the plaintiff is in possession of the property as a mortgagee or as a purchaser.

Coming to the facts of the case on hand, the suit filed by the petitioner/plaintiff is one for injunction simplicitor. The petitioners/ plaintiffs relied on the unregistered sale deeds to prove the fact of their possession. Therefore, the facts in the

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cited case and the case on hand are distinctive and the proposition of law laid down in the cited case has no application to the facts of the case on hand. The Supreme Court in Bondar Singh v. Nihal Singh, (2003) 4 SCC 161 : (AIR 2003 SC 1905), held as follows:

"Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land."

The facts in the above case are that the plaintiffs claim title to the land in suit on the basis of the plea that they had become its owners by adverse possession. The land was owned by one Fakir Chand, predecessor-in-interest of the appellants therein (defendants in the suit). Fakir Chand sold the land to Tola Singh, predecessor-in-interest of the plaintiffs by an unstamped and unregistered sale deed dated 9-5-1931. The plaintiffs claim to have entered into possession of the land on the

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basis of the said sale deed and they claim to be continuously in possession since then. The defendants tried to dispossess the plaintiffs, which led to the suit being filed by them on 15-4-1972. In the written statement filed by the defendants, they denied the sale of land by their father Fakir Chand to Tola Singh. They denied possession of the plaintiffs of the suit land. They also took the plea that the alleged sale deed was false, fictitious and without consideration. According to the defendants, their father was in possession of the lands till his death. After the death of their father, their mother had given possession of the land to Tola Singh for the purpose of cultivation in order to earn some money for supporting her family. According to the defendants, they had taken back possession of the land from Tola Singh in the year 1957-58. They also pleaded that after the death of Fakir Chand, the land had been mutated in their names in the revenue records to the knowledge of the plaintiffs. The plea of adverse possession was denied by stating that actually the defendants were in possession of the land and there was no question of adverse possession of the land by the plaintiffs qua the suit land. The only defence set

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up by the defendants against the unregistered sale deed dated 9-5-1931 is that it is unstamped, unregistered and therefore it cannot convey title to the land in favour of the plaintiff. On the basis of the facts stated above, it has been held by the Supreme Court that the sale deed dated 9-5-1931, even though not admissible in evidence can be looked into for collateral purposes.

10. Since the suit filed by the petitioners/plaintiffs is for injunction simplicitor and the unregistered sale deeds sought to be relied on is only to prove their possession over the property, they can be admitted into evidence under the third proviso to Section 49 of Registration Act."

5. Learned counsel for the Respondents/Defendants would

urge that the very document cannot be termed as conveyance within

the meaning of Maharashtra Stamp Act, particularly when the

registration of the same is mandatory under Section 17 of the

Registration Act. According to him, non registration of a

consequential/ compulsory registered documents is an uncurable defect

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and the consequence thereof is that such documents cannot be accepted

in evidence.

6. He would further urge that the only exception to Section 17

is the proviso, wherein it is permitted that such document can be

considered for collateral purpose. As such, according to him, order

impugned does not call for any interference.

7. I have considered the rival submissions and also the

observations of the Apex Court, as referred supra.

8. The fact that the suit preferred by the Petitioner is for

declaration, injunction. By virtue of the document, Exhibit 59, he has

prayed before the trial Court to exhibit said document.

9. The rejection of prayer for exhibiting the document is based

on the fact that the document is not sought to be used for collateral

purpose, as his case is based on the said document, whereby the

Petitioner is claiming his lawful possession.

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10. However, this Court is required to be sensitive to the

observations of the Apex Court in the mattr of P. M. Anand Babu and

Ors. (supra).

11. As the said document, which is sought to be exhibited can

be relied on by the Petitioner for collateral purpose, such as for

establishing his possession over the suit property, said can be marked

as exhibit to that extent. Ofcourse, exhibiting the document does not

mean that the said document is considered to be proved, unless the

Petitioner who is one of the signatory to the said document prove the

contents.

12. As such, the order impugned passed below Exhibit 59 on

17th December 2018 by 4th Joint Civil Judge, Senior Division, Thane is

hereby quashed and set aside.

13. The said application Exhibit 59 stands allowed to the extent

of aforesaid order and observations.

14. The Writ Petition stands disposed of in above terms.

( NITIN W. SAMBRE, J.)