Calcutta High Court (Appellete Side)
Sri Madhab Sarkar & Ors vs Sri Nani Gopal Sarkar & Anr on 6 September, 2022
Dl. September
24. 6, 2022
S.A. 355 of 2016
Sri Madhab Sarkar & ors.
Vs.
Sri Nani Gopal Sarkar & anr.
None appears on behalf of the appellants, nor any
accommodation is prayed on their behalf. The present appeal was
presented in the year 2014 without any effort or desire to move the
appeal for admission. However, we propose to decide the question
of admission of the present second appeal on the basis of the
materials available on record.
The present appeal has arisen out of a judgment and
decree of affirmance dated July 31, 2013 passed by the learned
Additional District Judge, Fifth Court at Krishnagar, Nadia, in Title
Appeal No. 79 of 2009 arising out of judgment and decree dated
May 26, 2009 passed by the learned Civil Judge (Junior Division) at
Tehatta, Nadia, in Title Suit No. 94 of 2006, which is a suit for
declaration and permanent injunction.
We have carefully considered the judgments of both the
courts below. The findings of the trial court in favour of the
plaintiffs/respondents are based on exhibits 3, 4 and 6. The said
documents are the original deed no. 6148 of 1981, the revisional
settlement record of rights and the certified true of revisional
settlement of record of right in respect of Khatian no. 5807.
Pramila Bala was the original owner of the property in
suit. Pramila sold 13 decimals of land out of 27 decimals to the
plaintiff/respondent no. 1 vide exhibit-3, which was presented for
registration on June 16, 1981 at 1-20 p.m. The
defendants/appellants produced another document being exhibit-C
that was also presented for registration on June 16, 1981 at 1-32
p.m. and claimed that they have purchased 14 decimals of land out
of 27 decimals of plot no. 1894 from Pramila Bala. It appears that
Pramila Bala executed two deeds in favour of two different persons.
Section 47 of the Registration Act, 1908 indicates the
time from which registered documents operate. Title to described
property, operates from the date of execution and may not be from
the date of registration of the document concerned. However, on
such registration title being passed to the purchaser from the date of
execution of the sale deed, the true test is to find out the intention of
the parties. Registration is prima facie, proof of an intention to
transfer of the property.
In the instant case, Exbt. 3 is the deed by which the
property was transferred in favour of the plaintiff. It is having the
original deed no.6148 of 1981, whereas, the certified copy of the
sale deed relied upon by the defendants in their favour mentioned
their deed as deed no.6151 of 1981. The intention to transfer the
property in favour of the plaintiff is clearly discernible by prior
execution of the said document in favour of the plaintiff. It is settled
law that where two instruments are executed on the same day, that
which was executed first take priority.
Undisputedly, the document in favour of the plaintiff
was executed prior in point of time. In Gurbax Singh v. Kartar
Singh, reported in AIR 2002 SC 959 this issue was conclusively
decided in paragraph 3 where it is clearly stated on interpretation of
Section 47 of the Registration Act:
"It is well settled that a document on subsequent
registration will take effect from the time when it was executed and
not from the time of its registration. Where two documents are
executed on the same day, the time of their execution would
determine the priority irrespective of the time of their registration.
The one which is executed earlier in time will prevail over the other
executed subsequently. The appellants have failed to prove that the
sale deed was executed in their favour prior in point of time. Where
none of the parties were able to adduce evidence with regard to
prior execution of the instrument the date of registration would be a
relevant factor. There are concurrent findings of due execution and
registration of the document in favour of the plaintiff. (emphasis
supplied)
The learned trial judge observed that the first deed
being exhibit-3, which was presented for registration at 1-20 p.m.,
embossed with valid title. Accordingly, the title of the plaintiff was
accepted by the trial court. Moreover, exhibit-1 would establish that
the plaintiff was in possession of the suit plot but the same was not
partitioned in between the co-sharers as Trigundharini transferred
14 decimals of land to Kalyan Majumder, who subsequently sold
the said 14 decimals of land to Biswanath Mondal being the
respondent no. 2 in this appeal. Trigunadharini was the owner of the
dns
suit plot no. 1894 having eight (8) annas share measuring 14
decimals of land out of 27 decimals and Pramila Bala was the
owner of 13 decimals of land in the same plot.
The right of the plaintiff/respondent no. 1 having been
clearly acknowledged in respect of 13 decimals of land, which he
purchased from Pramila Bala vide exhibit-3, we are of the view that
the trial court was justified in decreeing the suit in favour of the
plaintiff/respondent no. 1 to the extent of 13 decimals of land in the
suit plot.
The learned judge in the first appellate court concurred
with the findings of the trial court after going through the said
exhibits and on consideration of the evidence - both oral and
documentary.
The concurrent findings of fact arrived at by both the
courts below cannot be interfered with in the second appeal by
reason of the fact that the document produced by the
plaintiff/respondent no. 1 was registered in accordance with the
provisions of Sections 59 and 60 of the Registration Act, 1908 as
well as by the time the second deed was presented, the transferor
has lost her interest in the property. Moreover, we find no
substantial question of law involved in this appeal for which the
same is required to be admitted.
The second appeal is, therefore, summarily dismissed
under Order XLI Rule 11 of the Code of Civil Procedure.
There will be no order as to costs.
( Soumen Sen, J. )
( Uday Kumar, J. )
