Punjab-Haryana High Court
Bhagwan Singh And Anr vs Dalel Singh on 23 January, 2024
Author: Alka Sarin
Bench: Alka Sarin
2024:PHHC:008314
RSA-5904-2019 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-5904-2019 (O&M)
Reserved on : 18.01.2024
Date of decision : 23.01.2024
BHAGWAN SINGH & ANOTHER ... Appellants
Versus
DALEL SINGH ... Respondent
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Satbir Singh Gill, Advocate for the appellants.
ALKA SARIN, J.
CM-16872-2019 & CM-16870-2019
1. For the reasons stated therein, the application for condonation
of delay in refiling and filing the appeal is allowed. Delay of 61 days in
refiling and 15 days in filing the appeal are condoned.
CM-16871-2019
2. The Court fee has already been made good. The present
application is disposed off as infructuous.
RSA-5904-2019
3. The present regular second appeal has been preferred by the
plaintiff-appellants against concurrent findings of both the Courts below
whereby their suit for specific performance has been dismissed.
4. Brief facts relevant to the present lis are that the plaintiff-
appellants filed a suit for specific performance of agreement to sell dated
14.06.2004 regarding a house built on land bearing Khata No.303/479,
Khasra No.1466/1-0, 1641/0-2, measuring 1 Bigha 2 Biswas to the extent of
1/20 share situated at village Batriana for a total sum of ₹60,000/- and in the
integrity of this judgment/order.
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alternative suit for recovery of Rs.60,000/- being the total amount of sale
consideration paid by them to the defendant-respondent, alongwith costs and
interest, as also a suit for permanent injunction for restraining the defendant-
respondent from dispossessing or interfering in the possession of the
plaintiff-appellants over the suit property or selling, mortgaging or
transferring it to any other person except the plaintiff-appellants. It was
averred that the defendant-respondent had entered into an agreement to sell
the suit house along with all rights of share of 'rasta' etc. with the plaintiff-
appellants vide agreement to sell dated 14.06.2004 for a total sale
consideration of Rs.60,000/- and that the defendant-respondent had received
the total sale consideration amount from the plaintiff-appellants in the
presence of witnesses. It was further averred that the defendant-respondent
had delivered the physical possession of the suit house to the plaintiff-
appellants and as such they were in possession of the same since the date of
execution of agreement to sell. As per the plaintiff-appellants the defendant-
respondent had agreed to execute the sale deed of the suit house and that the
plaintiff-appellants were still ready and willing to perform their part of the
agreement but the defendant-respondent had flatly refused to admit their
claim. Hence, the present suit. The defendant-respondent in his written
statement took the pleas that the alleged agreement to sell dated 14.06.2004
is not admissible in evidence being an unregistered document, the suit of the
plaintiff-appellants is not maintainable and they have no locus standi or
cause of action to file the suit. It was the stand taken that the defendant-
respondent neither entered into any agreement to sell nor any alleged
agreement was executed and that the defendant-respondent had not handed
integrity of this judgment/order.
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over any possession of the suit house to the plaintiff-appellants. It has been
replied that the defendant-respondent is the owner and in possession of the
suit house and that no alleged amount of Rs.60,000/- was ever received by
the defendant-respondent and that the alleged agreement does not bear the
thumb impression of the defendant-respondent. Replication to the written
statement of was filed and on the basis of the pleadings the following issues
were framed :
1. Whether the agreement to sell dated 14.06.2004 has
been executed between the parties ? OPP
2. Whether the plaintiffs are ready and willing to
perform their part of the contract ? OPP
3. Whether the plaintiffs are entitled to the relief of
specific performance of the agreement to sell dated
14.06.2004 as detailed in the plaint ? OPP
4. Whether the plaintiffs are entitled to recovery of
Rs.60,000/- along with cost of the suit and future
interest 2 12% per annum in the alternative ? OPP
5. Whether the plaintiffs are entitled to the relief of
permanent injunction as prayed for ? OPP
6. Whether the suit of the plaintiffs is not
maintainable ? OPD Section 41 of Transfer of Property
Act ? OPD
7. Relief.
5. The parties led their evidence and on the basis of the pleadings
and evidence, the Trial Court dismissed the suit of the plaintiff-appellants
integrity of this judgment/order.
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holding that the agreement to sell was not proved by any attesting witness,
the plaintiff-appellants did not take any steps for execution of the sale deed
for ten years, the agreement to sell being unregistered it was inadmissible in
evidence since it purported to transfer possession, and that the agreement to
sell was a suspicious document. Aggrieved by the judgment and decree
dated 17.09.2016, an appeal was preferred by the plaintiff-appellants which
also met with the same fate vide judgement and decree dated 15.03.2019.
Hence, the present regular second appeal.
6. The learned counsel for the plaintiff-appellants has contended
that the impugned judgements and decrees are illegal and against the
evidence available on the record. It is argued that the execution of the
agreement to sell stands proved and possession of the plaintiff-appellants
over the suit house stands established and thus the suit ought to have been
decreed.
7. Heard learned counsel for the plaintiff-appellants and perused
the paperbook.
8. In the present case the plaintiff-appellants have failed to
establish the due execution of the agreement to sell. No attesting witness was
examined. The depositions of the Notary Public and the Handwriting and
Fingerprint Expert do not prove the proper and due execution of the
agreement to sell. The counsel for the plaintiff-appellants has been unable to
satisfy this Court as to why for ten years the plaintiff-appellants just kept
sitting on the fence - the agreement to sell allegedly having been executed on
14.06.2004 while the present suit was filed on 07.07.2014.
9. Further, as per the plaintiff-appellants the possession of the suit
integrity of this judgment/order.
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house was given to them at the time of execution of the agreement to sell, as
is mentioned therein. The agreement to sell dated 14.06.2004 vide which
possession was also delivered to the plaintiff-appellants is an unregistered
document and such an unregistered document cannot be accepted being in
contravention of the provisions of the Registration Act, 1908. It is well
settled that that a transfer of immovable property by way of sale can only be
by a deed of conveyance / sale deed. In Suraj Lamp & Industries (P) Ltd.
vs. State of Haryana [(2012)1 SCC 656] it was held :
"18. It is thus clear that a transfer of immovable
property by way of sale can only be by a deed of
conveyance (sale deed). In the absence of a deed of
conveyance (duly stamped and registered as required by
law), no right, title or interest in an immovable property
can be transferred.
19. Any contract of sale (agreement to sell) which is
not a registered deed of conveyance (deed of sale)
would fall short of the requirements of Sections 54 and
55 of the TP Act and will not confer any title nor
transfer any interest in an immovable property (except
to the limited right granted under Section 53-A of the TP
Act). According to the TP Act, an agreement of sale,
whether with possession or without possession, is not a
conveyance. Section 54 of the TP Act enacts that sale of
immovable property can be made only by a registered
instrument and an agreement of sale does not create any
integrity of this judgment/order.
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interest or charge on its subject-matter."
10. Thus, without a stamped and registered deed of conveyance /
sale deed, no right, title or interest in immovable property can be transferred.
Under the provisions of Section 17 of the Registration Act, 1908 where
immovable property of the value of more than 100/- is conveyed, such sale
could only be effected by a document of sale duly registered. Section
17(1)(b) of the Registration Act, 1908 mandates that any document which
has the effect of creating and taking away the rights in respect of an
immovable property must be registered and Section 49 of the said Act
imposes a bar on the admissibility of an unregistered document and deals
with the documents that are required to be registered under Section 17.
Section 49 of the Registration Act, 1908 reads thus :
"49. Effect of non-registration of documents required to
be registered - No document required by Section 17 or
by any provision of the Transfer of Property Act, 1882
(4 of 1882), to be registered shall -
(a) affect any immovable property comprised therein,
or
(b) confer any power to adopt, or
© be received as evidence of any transaction affecting
such property or conferring such power,
unless it has been registered:
Provided that an unregistered document affecting
immovable property and required by this Act or the
Transfer of Property Act, 1882 (4 of 1882), to be
integrity of this judgment/order.
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registered may be received as evidence of a contract in
a suit for specific performance under Chapter II of the
Specific Relief Act, 1877 (1 of 1877), or as evidence of
any collateral transaction not required to be effected by
registered instrument."
11. Since the agreement to sell dated 14.06.2004 has the effect of
creating and taking away the rights in respect of immovable property, it
required registration under Section 17 of the Registration Act, 1908. Since
the said agreement to sell has not been registered, it cannot be taken into
account to the extent of the transfer of the immovable property mentioned
therein.
12. In view of the above, I do not find any ground to interfere in the
concurrent findings of fact returned by both the Courts below. No question
of law much, less any substantial question of law, arises in the present
appeal. The appeal, which is wholly devoid of any merits, is accordingly
dismissed. Pending applications, if any, also stand disposed off.
23.01.2024 ( ALKA SARIN )
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
integrity of this judgment/order.
