counsel for the respondent. This matter was heard in part
2. The factual matrix of the case of the plaintiff before
3. The Trial Court having considered the pleadings of
4. Whether the defendant proves that, the value
of the suit property is Rs.10,00,000/-
therefore this Court has no jurisdiction to try
the suit?
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5. Whether the plaintiff is entitled for the relief's
sought for in the suit?
6. What order or decree?"
4. The plaintiff in order to prove his case, examined
himself as P.W.1 and got marked the documents as Exs.P1 to
35 and closed his side. On the other hand, the defendant to
substantiate his defence, examined himself as D.W.1 and also
examined one witness as D.W.2 and got marked the documents
as Exs.D1 to D3 and during the course of cross-examination of
P.W.1, a document was confronted i.e., vakalath and the same
is marked as Ex.C1.
5. The Trial Court having considered the material on
record comes to the conclusion by answering issue No.1 as
'affirmative' that plaintiff is the owner and in possession of the
suit schedule properties and answered issue No.2 as 'negative'
that on 03.03.2014 the defendant attempted to dispossess the
plaintiff from the suit schedule property and also defendant
failed to prove that plaintiff has sold the suit schedule property
to the defendant by executing an agreement to sell on
10.09.2007 by receiving the entire sale consideration of
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Rs.1,00,000/- and handed over possession of the suit schedule
property to the defendant and answered issue No.3 as
negative. However, answered issue No.4 as 'affirmative', in
coming to the conclusion that value of the suit schedule
property is Rs.1,00,000/-. Therefore, this Court has no
jurisdiction to try the suit and answered issue No.5 as 'partly
affirmative' that plaintiff is entitled for the relief sought for in
the suit and granted the relief that he is the absolute owner in
operative portion and also observed that plaintiff is entitled for
recovery of possession of plaint schedule property from
defendant and the defendant is hereby directed to handover
the possession of the plaint schedule property to plaintiff within
one month from the date of this judgment. The suit of the
plaintiff to declare that GPA and sale agreement are concocted
and illegal and suit for permanent injunction is dismissed.
6. Being aggrieved by the said judgment, an appeal is
filed before the First Appellate Court in R.A.No.38/2019 and the
First Appellate Court having reassessed the material available
on record and also considering the grounds, formulated the
point whether the appellant establishes that the Trial Court has
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committed an error in partly decreeing the suit of the plaintiff,
despite holding that plaintiff has handed over the possession of
the suit schedule property to appellant/defendant as per Ex.D1
sale agreement and also that Ex.D2 GPA is not created one and
whether appellant establish that the judgment of Trial Court is
perverse and conspicuously erroneous and is liable to be set
aside. Both the points for consideration are answered as
'negative' and confirmed the judgment of the Trial Court,
particularly coming to the conclusion that though the appellant
claims part performance contending that he was put in
possession of the suit schedule property under agreement
dated 10.09.2007 at Ex.D1, but the fact that very agreement at
Ex.D1 is not a registered instrument. As per Section 17 of
Registration Act, the property worth of Rs.100/- or more
required to be effected by a registered instrument. Therefore,
the appellant even cannot claim protection under Section 53-A
of Transfer of Property Act. The First Appellate Court also made
an observation that on perusal of oral as well as documentary
evidence, appellant/defendant has not made out any valid
grounds to set aside the impugned judgment and decree.
Therefore, the Trial Court has properly appreciated the oral and
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documentary evidence on record and it does not require any
interference and confirmed the judgment. Being aggrieved by
said concurrent finding, the present second appeal is filed
before this Court.
7. This Court, while admitting the appeal framed the
following substantial questions of law which reads as
hereunder:
"(i) Whether the Courts below were justified in
granting the relief of declaration of title and
recovery of possession of the plaint schedule
property to the plaintiff having regard to the
finding recorded by the Trial Court on Issue
nos.2 to 4?
(ii) Whether the Courts below were justified in
decreeing the suit when there is a finding
recorded by the Trial Court that the
agreement for sale and the registered general
power of attorney were proved to be
executed in favour of the defendant for a
valid sale consideration and the defendant
was put in possession of the suit schedule
property on the strength of the said
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document having regard to Section 53A of
the Transfer of Property Act, 1882?"
8. The counsel for the appellant during the course of
argument would contend that this Court also has to frame a
substantial question of law with regard to non-consideration of
issue No.4 and contend that in the written statement, a specific
defence was taken that Court is not having pecuniary and
territorial jurisdiction to consider the matter and inspite of issue
No.4 was framed and answered as 'negative', no discussion at
all. The counsel also brought to notice of this Court that, First
Appellate Court also not discussed anything about the
jurisdiction. Hence, this Court has to frame additional
substantial question of law.
9. The counsel appearing for the respondent would
contend that both the Courts have considered the valuation
made in the suit when the suit is filed for the relief of
declaration and hence, contention that no jurisdiction cannot be
entertained. However, having perused the judgment of Trial
Court as well as the First Appellate Court, not touched upon the
issue of jurisdiction. Hence, it requires framing of an additional
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substantial question of law and therefore, this Court has framed
additional substantial question of law, which reads as
hereunder:
"Whether both the Courts committed an error
in not considering issue No.4 and not dealt with the
issue of jurisdiction while considering the matter".
Substantial questions of law Nos.(i) and (ii)
10. The counsel appearing for the appellant in his
argument would vehemently contend that Trial Court
committed an error in coming to the conclusion that plaintiff is
the owner of the suit schedule property and contend that both
the Courts comes to the conclusion that possession is not with
the plaintiff and plaintiff also sought for the relief of possession
after filing of the written statement and the Trial Court directed
the defendant to handover the possession. The Trial Court also
comes to the conclusion that agreement and GPA are executed
by the defendant, but not considered Section 53-A of Transfer
of Property Act. The counsel also would vehemently contend
that value of the suit is only Rs.1,00,000/-, since the sale
consideration is Rs.1,00,000/- in terms of the sale agreement
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and the Trial Court is not having jurisdiction to consider the
matter and ought to have returned the plaint to present the
same before the jurisdictional Court and both the Courts have
not answered the said issue.
11. Per contra, learned counsel appearing for the
respondent would contend that plaintiff claim that there was an
agreement dated 10.09.2007. The counsel would contend that
admittedly land is a granted land and there was a prohibition to
sell the property for a period of 25 years and even if such
agreement is executed, the same is not valid, since there is a
prohibition. The counsel appearing for the respondent would
contend that though there was registered sale agreement and
GPA, the First Appellate Court rightly comes to the conclusion
that Section 53-A cannot be invoked, unless the sale
agreement is registered and possession could be delivered by
executing a registered document and in the absence of any
registered document of sale agreement, question of invoking
Section 53-A does not arise. Hence it does not require any
interference. The counsel appearing for the respondent also
would contend that while seeking the relief of declaration and
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possession, in the valuation slip, specifically mentioned the
value of the property as Rs.6,00,000/-. Hence, the Court of
Civil Judge (Senior Division) has jurisdiction to try the suit and
the contention that sale consideration is only Rs.1,00,000/- in
terms of the sale agreement and there is no jurisdiction to try
the suit cannot be accepted.
12. Having heard learned counsel for the appellant and
learned counsel for the respondent, having considered both oral
and documentary evidence on record, the Trial Court and the
First Appellate Court comes to the conclusion that sale
agreement and GPA are executed. The Trial Court also comes
to the conclusion in paragraph No.20 that the defendant proved
that plaintiff executed Ex.D2-GPA in his favour. On the other
hand, the plaintiff fails to prove that said GPA is created by
defendant. But, the fact that GPA is registered document is not
in dispute and sale agreement is not a registered document. In
paragraph No.19, the Trial Court also made an observation that
defendant has successfully proved that plaintiff executed Ex.D1
sale agreement and also registered GPA. However, the Trial
Court while answering issue No.1 committed an error in
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answering the same as 'affirmative' that plaintiff proved that he
is the absolute owner in possession and enjoyment of the suit
schedule property. But, the fact is that possession is not with
the plaintiff and held that plaintiff is entitled for recovery of
plaint schedule property from the defendant and also directed
defendant to handover possession of plaint schedule property
to the plaintiff within one month from the date of the said
judgment.
13. No doubt, the First Appellate Court also having re-
assessed the material available on record comes to the
conclusion that there is an agreement of sale and GPA, but the
very contention of learned counsel for the appellant that
Section 53-A of Transfer of Property Act was not considered by
the First Appellate Court was not considered on the ground that
as per Section 17 of the Registration Act, the property worth
Rs.100/- or more required to be effected by a registered
instrument. Therefore, the appellant even cannot claim
protection under Section 53-A of Transfer of Property Act and
confirmed the judgment at the Trial Court.
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14. Now having considered the material available on
record, the Trial Court committed an error in answering issue
No.1 as 'affirmative' and the substantial questions of law
framed by this Court i.e., first substantial question of law
whether the Courts below were justified in granting the relief of
declaration of title and recovery of possession of the plaint
schedule property to the plaintiff having regard to the finding
recorded by the Trial Court on issue Nos.2 to 4. The Trial Court
also framed issue No.2 that whether the plaintiff proves that on
03.03.2014 the defendant attempted to dispossess the plaintiff
from the suit schedule property and when the Trial Court comes
to the conclusion that possession is with the defendant, but
answered issue No.2 as 'negative' that defendant attempted to
dispossess the plaintiff and answered issue No.3 as 'negative'
when the defendant took the defence that plaintiff has sold suit
schedule property to the defendant by executing an agreement
of sale on 10.09.2007 by receiving entire sale consideration of
Rs.1,00,000 and handed over possession of the suit schedule
property to the defendant. But, the finding of the Trial Court
that sale agreement and GPA was also executed and possession
is also delivered. However, in the operative portion, ordered to
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deliver possession to the plaintiff and directed the defendant to
handover possession and answered the said issue i.e., issue
No.3 as 'negative' and the same against the operative portion
of the Trial Court. Further, while answering issue No.4, nothing
is discussed regarding jurisdiction of the Court is concerned and
specific defence was taken by the defendant that sale
consideration was only Rs.1,00,000 and hence, the Court has
no jurisdiction.
15. Having perused findings of the Trial Court, though
answered issue No.3 as 'negative', while answering issue No.4,
since all the issue Nos.2 to 4 are taken together, answered
issue No.4 in 'affirmative', but granted the relief and once the
issue No.4 is answered as 'affirmative', ought not to have
granted the relief, since the Trial Court comes to the conclusion
that no jurisdiction to try the suit and no discussion was also
made in this regard. Learned counsel for the respondent also
not disputes that no discussion with regard to issue No.4 and
while considering issue Nos.2 to 4, though jointly considered
the said issues, discussion was made only in respect of issue
Nos.2 and 3, but not touched upon issue No.4. The second
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substantial question of law framed by this Court is whether the
Courts below were justified in decreeing the suit when there is
a finding recorded by the Trial Court that the agreement for
sale and the registered general power of attorney were proved
to be executed in favour of the defendant for a valid sale
consideration and the defendant was put in possession of the
suit schedule property on the strength of the said document
having regard to Section 53A of Transfer of Property Act, 1882.
In respect of this substantial question of law, it is very clear
that if the value of property is more than Rs.100/-, subsequent
to Amendment, 1991, if there is any delivery of possession,
even if it is a sale agreement also, it requires registration. But,
the material discloses that sale agreement is not a registered
document and Section 53-A could only be invoked, if it is a
registered document and possession is delivered in terms of the
sale agreement.
16. At this juncture, learned counsel for the appellant
relied upon the judgment of Apex Court in GHANSHYAM VS.
YOGENDRA RATHI reported in 2023 Live LAW (SC) 479
and brought to notice of this Court that an observation is made
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that the factors such as entering into an agreement to sell,
payment of entire sale consideration and being put in
possession by the transferor, shows that de-facto possessory
rights based on the part performance of the agreement to sell.
The possessory right is not liable to be disturbed by the
transferer and the transferer's entry into the suit property
subsequently was as a licensee and not as the owner of the
property and also brought to notice of this Court paragraph
No.14. The said judgment will not come to the aid of learned
counsel for the appellant, since amendment was brought
regarding delivery of possession that possession can be
delivered only through registered document of sale agreement
and with regard to delivery of possession is concerned, if sale
agreement is executed and delivery of possession is made prior
to Amendment, 1991, no such registration is required. But
subsequent to the amendment, while delivering possession, the
sale agreement must necessarily be registered. Hence, this
judgment will not come to the aid of the appellant.
17. The counsel appearing for the appellant also
brought to notice of this Court judgment of this Court in the
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case of SRI B.S.LAKSHMAN VS. SRI PUTTASHETTY AND
OTHERS in R.S.A.NO.1358/2022 dated 27.06.2025 and no
doubt, this Court while considering the very same issue that
during non-alienation clause, if any sale agreement is entered
by the party consciously having received the entire sale
consideration and executed the document and particularly the
intention of the parties also to be gathered and when he
categorically admitted that after the non-alienation period is
over, he is ready to execute the document and taking note of
the said fact into consideration, this Court considered in
R.S.A.No.1358/2022 and the same is enforceable after the
non-alienation period is over and no dispute with regard to the
principles laid down in this judgment is concerned.
18. No doubt, in the case on hand also, land was
granted and there was non-alienation clause, but during the
subsistence of non-alienation clause, the plaintiff entered into
an agreement with defendant and consciously agreed to
execute the sale deed after the expiry of the period of non-
alienation clause. Hence, the said judgment is applicable to the
facts of the case on hand for specific performance. But, the
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issue now before this Court is that, once the Trial Court and the
First Appellate Court comes to the conclusion that there was an
agreement of sale and also a registered GPA and possession
was also recognized by the Trial Court i.e., with the defendant,
question of invoking Section 53-A does not arise, since the
document of sale agreement was not registered as observed by
this Court. However, in view of framing of an additional issue
by the Court regarding jurisdiction is concerned, admittedly, in
the sale agreement, sale consideration is mentioned as
Rs.1,00,000/- and issue was also framed by the Trial Court i.e.,
issue No.4 with regard to jurisdiction is concerned. Though
there is a mistake in mentioning the consideration as
Rs.10,00,000/- in issue No.4, ought to have read the same as
Rs.1,00,000/- and both the counsel not disputes the fact that
sale consideration is Rs.1,00,000/-. However, learned counsel
for the respondent brought to notice of this Court that while
amending the plaint, filed a fresh valuation slip, wherein it is
mentioned as Rs.6,00,000/- for the purpose of jurisdiction is
concerned and whether it is Rs.1,00,000/- or Rs.6,00,000/-,
nothing is discussed by the Trial Court while answering issue
No.4 is concerned and only answered as 'affirmative'. Once the
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Trial Court has come to the conclusion that issue No.4 is
'affirmative' in nature that it has no jurisdiction, ought not to
have granted the relief to the plaintiff and the First Appellate
Court also not discussed anything about the issue of jurisdiction
and First Appellate Court while considering the material on
record as a First Appellate Court while exercising the power
under Section 96 as well as under Order XLI has to consider the
material on record as original Court and the same has not been
done and both question of fact and question of law should be
considered by the First Appellate Court and the same has not
been done.
19. When such being the case, the First Appellate Court
ought to have considered the issue of jurisdiction, though
framed issue No.4 but not answered the same properly. Hence,
matter requires to be reconsidered by the Trial Court with
regard to jurisdiction. With regard to granting any relief, if the
Court comes to the conclusion that no jurisdiction, question of
granting other relief also does not arise and matter requires to
be sent to the jurisdictional Court, if it is answered as
'affirmative' as answered by the Trial Court. But, nothing is
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discussed while answering issue No.4. Hence, matter requires
to be considered afresh. Therefore, the matter is remitted back
to the Trial Court to consider the issue No.4 as well as other
contentions raised by respective parties and matter has to be
considered afresh in view of the observations made by this
Court. Hence, I answer substantial questions of law framed by
this Court accordingly
20. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
(ii) The impugned judgment of the Trial Court and the
First Appellate Court are set aside and matter is
remitted back to the Trial Court to decide the issue
of jurisdiction in view of the observations made by
this Court.
(iii) Both the parties are directed to appear before the
Trial Court on 28.08.2025 without expecting any
notice from the Trial Court.
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(iv) If any one of the parties fail to appear on
28.08.2025, the Trial Court is directed to proceed,
in the absence of the parties since they are having
knowledge about the direction given to the parties.
(v) The Trial Court is directed to dispose of the matter
within a period of three months and both the
parties and their respective counsels are directed to
assist the Trial Court in disposal of the suit within a
period of three months without seeking any
adjournment.
Sd/-
(H.P.SANDESH)
JUDGE
ST
