Smt. Bano Begum vs Sri S. Praveen Kumar
2023 Latest Caselaw 1530 Tel

            HON'BLE SRI JUSTICE P.NAVEEN RAO

           CIVIL REVISION PETITION No.276 of 2023

                     Date : 06.04.2023

Between:

Smt. Bano Begum w/o. Mohd. Sayeed,
Aged 44 years, occu: Household,
R/o. 11-4-79, Red Hills, Nampally,
Hyderabad, T.S.
                                     .... Petitioner/petitioner/
                                                      Plaintiff

     and

sri S.Praveen Kumar, s/o.not known
Aged 43 years, occu: Business,
r/o.10-4-771/2/E, Humayun Nagar,
Hyderabad.
                                 .... Respondent/respondent/
                                                 Defendant




The Court made the following:
                                                                     PNR,J
                                                        CRP No.276 of 2023
                                 2


           HON'BLE SRI JUSTICE P. NAVEEN RAO

         CIVIL REVISION PETITION NO.276 OF 2023

ORDER:

Heard learned counsel for petitioner Sri Ch.Radhakishan

and learned counsel for respondent Sri Eranki Phani Kumar.

2. Plaintiff is petitioner herein. He filed O.S.No.229 of 2016

on the file of XVII Additional Senior Civil Judge, City Civil Court,

Hyderabad praying to grant decree for perpetual injunction

restraining the defendant, his agents, person or persons

claiming under him from interfering with the plaintiff's peaceful

possession and enjoyment in respect of suit schedule property

i.e., H No. 11-4-144/1 (part of house No.11-4-144) admeasuring

86 sq yards comprising of a room with open area at Bazarghat,

Asifnagar mandal, Hyderabad.

3. According to plaintiff, he is absolute owner and in

possession of the suit schedule property, having purchased the

same by way of a registered sale deed dated 9.2.2016. The

plaintiff traces flow of title being passed on to him. While so,

plaintiff contends that defendant who is no way concerned with

the suit schedule property started interfering with the plaintiff's

possession and enjoyment. Several attempts are made by the PNR,J CRP No.276 of 2023

defendant for dispossessing the plaintiff and to take physical

possession. As the threat of dispossession is persisting, plaintiff

was compelled to institute instant suit.

4. In the said suit, plaintiff filed I.A.No.410 of 2022 under

Sections 33 and 35 of Indian Stamp Act, 1899 praying the

Court to send the agreement of sale dated 7.8.2010 to the

District Registrar, Hyderabad for the purpose of validating/

impounding the said document.

5. In the affidavit filed in support of the application, plaintiff

pleaded that the original agreement of sale dated 7.8.2010 was

not available as same was transmitted to the Court of Hon'ble

XII Metropolitan Magistrate, Nampally, Hyderabad for taking

steps to send the same to Forensic Science Laboratory (for

short, 'FSL'). Therefore, at the time of recording evidence of

P.W.1 and marking of documents Exs.A1 to Ex.A9, she could

not mark the agreement of sale deed 7.8.2010. It is her further

case that she filed application to bring the said document to the

Court for marking and though the said document was received

by the Court, the Court refused to mark the same on 12.9.2022

as it was insufficiently stamped document, therefore,

inadmissible in evidence. Contending that said agreement of PNR,J CRP No.276 of 2023

sale is vital document, plaintiff pleaded for sending the said

document for validating/impounding.

6. Claim of the plaintiff is opposed by the defendant. It is

contended that after repeated adjournments, only to

procrastinate the suit proceedings, the present application is

filed. According to defendant, plaintiff, her husband and

brother colluded with criminal conspiracy and forged the

signature of father of defendant late S.Ganapath Rao. It is

further case of the defendant that original agreement of sale

dated 7.8.2010 is a forged document, complaint was lodged with

the police alleging forgery of the document, complaint was

registered as Crime No.113 of 2016 for the offences punishable

under Sections 468 and 471 read with Section 120-B of IPC and

on completion of investigation, police filed charge sheet in

C.C.No.22 of 2017 on the file of XII Additional Chief

Metropolitan Magistrate. During the course of investigation,

police sent the original document to FSL. On examination, FSL

reported that alleged signature of late S Ganapath Rao is forged

signature and submitted a report to the Court of XII Additional

Chief Metropolitan Magistrate on 26.9.2016.

PNR,J CRP No.276 of 2023

7. The trial Court framed two questions for consideration.

They read as under:

1. Whether the absolute agreement of sale dated 7.8.2010 is to be sent to the District Registrar, Hyderabad for the purpose of validating or impounding the said document ?

2. Whether PW.1 is to be recalled for marking the said agreement of sale dated 7.8.2010 as exhibit ?

8. The trial Court noted that the agreement of sale is not

properly stamped and is not registered, therefore not admissible

in evidence. Further, as it is a suit for perpetual injunction, the

burden is on the plaintiff to prove legal possession and

occupation of the suit schedule property to succeed in the suit.

The Court noted that on the earlier occasion, Court passed

orders on 12.9.2022 holding that as agreement of sale dated

7.8.2010 was insufficiently stamped and unregistered, it cannot

be exhibited in evidence. Noting further the pendency of

criminal case, reference of the document to FSL and report of

FSL the trial Court held that document cannot be received in

evidence even for collateral purposes. The trial Court held that

defect of non registration of the document is not curable defect

and as the suit is for simple injunction, said agreement of sale PNR,J CRP No.276 of 2023

which was insufficiently stamped and unregistered cannot be

considered. As point no.1 was answered in favour of defendant,

point no.2 was also answered accordingly.

9. Extensive submissions are made by learned counsel on

either side.

10. Learned counsel for plaintiff relied upon decision of the

Supreme Court in Thiruvengadam Pillai Vs Navaneethammal

and another1. Learned counsel for defendant relied on

decisions of Supreme Court in K.B.Saha and Sons Private

Limited Vs Development Consultant Limited2 and

S.Kaladevi Vs V.R. Somasundaram and others3.

11. In the facts of this case, the point for consideration is

whether trail Court erred in not accepting the plea of the

petitioner to send the document for impounding.?

12. Admittedly, plaintiff is seeking to rely on alleged absolute

agreement of sale dated 07.08.2010 to contend that she was in

valid possession of suit schedule property and that her

possession should not be disturbed. Clause-7 of the absolute

agreement of sale dated 07.08.2010 records that in pursuant to

(2008) 4 SCC 530

(2008) 8 SCC 564

(2010) 5 SCC 401 PNR,J CRP No.276 of 2023

payment of full sale consideration, the vendor delivered the

vacant and peaceful possession of the schedule property to the

vendee and the vendee was inducted into peaceful physical

possession.

13. In addition to the fact that the defendant is seriously

disputing the legality and validity of the said document, he has

alleged forgery of signature of late S.Ganapathi Rao; filed Police

complaint; Police have investigated and filed charge-sheet. The

said document was referred to FSL and the FSL in their report

dated 26.09.2016 reported that the signature is forged.

Therefore, the very existence of the document is in dispute.

This document was not registered. Assuming that the

agreement of sale is a valid document relying on terms of

clause-7 of the alleged agreement of sale cannot be called as

collateral purpose i.e., that plaintiff was validly vested with the

possession. The settled principle of law is that a document

compulsorily registrable, if not registered is inadmissible in

evidence. Though such document can be used as an evidence

of collateral purpose, such collateral transaction must be

independent of or divisible from, the transaction effective of

which requires registration.

PNR,J CRP No.276 of 2023

14. In paragraph-34 of the judgment in K.B.Saha and Sons (P)

Ltd., (supra), the Hon'ble Supreme Court held,

"Collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of 100/- and upwards and if a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence".

15. In the instant case, plaintiff sought to rely on clause-7 of

the agreement of sale dated 07.08.2010 to contend that she is

in valid possession of subject property. In other words,

according to plaintiff, on receiving full sale consideration,

possession was vested in her as evident from clause-7 of the

agreement of sale. As the said document is a compulsorily

registrable document and not registered said, said clause

cannot be looked into to establish possession.

16. In the facts of this case, the decision relied on by the

learned counsel for plaintiff do not come to the aid of the

plaintiff and in Thiruvengadam Pillai (supra), the Hon'ble

Supreme Court considered whether the agreement of sale

executed on two stamp papers purchased on different dates is

not valid and whether the first appellate court was justified in

comparing the disputed thumb impression with the admitted PNR,J CRP No.276 of 2023

thumb impression and recording a finding about the

authenticity of thumb impression without benefit of any opinion

of an Expert. Whereas herein, it is not a case of execution of

agreement on two stamp papers and authenticity of signature

was already referred to FSL for Expert opinion and the Expert

opined that the concerned signature does not belong to late

S.Ganapathi Rao.

17. Having regard to the peculiar facts of this case, I do not

see any error committed by the trial Court in refusing to accept

the plea of the petitioner to send the absolute agreement of sale

dated 07.08.2010 to the District Registrar for the purpose of

validating/impounding the said document. As noticed above,

the objective of plaintiff seeking the document to be

impounded/validated is to rely upon clause-7 of the agreement

of sale to support her possession claim. The Civil Revision

Petition is dismissed. Pending miscellaneous applications, if

any, shall stand closed.

__________________________ JUSTICE P.NAVEEN RAO

Date: 06.04.2023 TVK/KKM PNR,J CRP No.276 of 2023

HON'BLE SRI JUSTICE P.NAVEEN RAO

CIVIL REVISION PETITION No.276 of 2023

Date : 06.04.2023

Tvk/kkm