Tripura High Court
Sri Pranesh Chandra Bhowmik vs Sri Partha Bhowmik on 31 January, 2024
HIGH COURT OF TRIPURA
AGARTALA
RSA NO.49 of 2022
Sri Pranesh Chandra Bhowmik,
S/o. Late Pramatha Chandra Bhowmik,
Vill. & P.O. Bhagabannagar,
P.S. & Sub-Division-Kailashahar,
District-Unakoti Tripura.
..........Appellant.
Versus
1. Sri Partha Bhowmik,
S/o. Late Pratap Chandra Bhowmik
of Vill. Kalipur, P.O. Paitur Bazar,
P.S. & Sub-Division-Kailashahar,
District-Unakoti Tripura, PIN-799279
2. Smt. Khela Rani Bhowmik,
W/o. Late Pratap Chandra Bhowmik
of Vill. Kalipur, P.O. Paitur Bazar,
P.S. & Sub-Division-Kailashahar,
District-Unakoti Tripura, PIN-799279
4. Smt. Papiya Bhowmik,
D/o. Late Pratap Chandra Bhowmik,
W/o. Sri Nirmal Datta
Vill. Paitur Bazar at present Durgapur,
P.O. Paitur Bazar, P.S. & Sub-Division-Kailashahar,
District-Unakoti Tripura, PIN-799279.
...........Respondents.
For Appellant(s) : Mr. H. Deb, Adv.
For Respondent(s) : Ms. R. Purkayastha, Adv.
Date of Hearing : 19.01.2024
Date of delivery of
Judgment and Order : 31.01.2024
Whether fit for
Reporting : YES
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment &Order
The appellant Pranesh Chandra Bhowmik is before
the High Court. He has preferred this Second Appeal under
Section 100 of CPC challenging the judgment and decree
dated 25.08.2022 passed by Learned District Judge, Unakoti
District, Kailashahar in connection with Title Appeal No. 05 of
2021 allowing the Title Appeal and by setting aside the
judgment and decree dated 07.12.2020 passed by Learned
Civil Judge, Senior Division, Court No. 1, Kailashahar,
Unakoti Tripura, in connection with case No. T.S.(P) 35 of
2018.
02. The gist of the appeal in brief is that the
respondent plaintiffs filed one suit for partition before the
Court of Learned Civil Judge, Senior Division, Unakoti
District, Kailashahar against the present appellant as
defendant alleging interalia that one Pratap Chandra
Bhowmik, predecessor of the present respondent-plaintiff
and present appellant-defendant got allotment of suit land
on 25.05.1984 from the Government of Tripura and Khatian
bearing No.437 was created in their name jointly and they
started possessing the suit land jointly. The respondent-
plaintiffs issued to reside at Kalipur, Kailashahar with their
predecessor Pratap Chandra Bhowmik and after his death on
13.10.1995 the respondent-plaintiffs have been residing at
Kalipur, Kailashahar. The appellant-defendants and the
respondent-plaintiffs were/are in joint possession of the suit
land and on 12.11.2016 the respondent-plaintiffs requested
the appellant-defendant for partition of the suit land but he
refused to make the same. After that the respondent-
plaintiffs filed the suit. In the said suit before the Learned
Court below, the appellant-defendant after receipt of
summons appeared and contested the suit by filing written
statement and took the plea that the suit land had already
been partitioned amicably in between the present appellant-
defendant and said Pratap Chandra Bhowmik, the
predecessor of the respondent-plaintiff and said Pratap
Chandra Bhowmik(since dead) by executing an unregistered
deed of sale agreement (sharan Lipi) on 11.02.1987 as part
performance of contract had handed over his share in the
suit land to the appellant-defendant on 11.02.1987 receiving
Rs.5000/-(rupees five thousand only) as full construction of
his share with condition to execute registered deed of sale
after obtaining necessary sale permission from the
Government. The suit of the respondent-plaintiff was
registered by the Learned Trial Court vide case No. T.S.(P)35
of 2018 and after trial the Learned Trial Court dismissed the
suit.
03. Challenging the dismissal, the respondent-
plaintiffs had preferred an appeal before the Learned District
Judge, Unakoti District, Kailashahar and the Learned District
Judge, after hearing both the parties allowed the appeal and
by his judgment pleased to set aside the judgment and
decree passed by the Learned Trial Court on the ground that
the deed of agreement (sharan Lipi) executed by the
predecessor of the respondent-plaintiffs was not registered
as per Section 17(1A) of the Registration Act. As the Learned
First Appellate Court did not consider the said deed of sale
agreement (sharan Lipi) on 11.02.1987 and in the amended
Act the provision regarding compulsory registration of sale
agreement was enacted with effect from 24.09.2001, so, the
present appellant-defendant by challenging the judgment
has preferred this appeal before the Court. At the time of
admission of second appeal the following substantial
question of law was formulated by order dated 19.01.2023:
"(i) Whether the finding of the learned first
appellate Court is contrary to Section 17(1A)
of Registration Act, 1908 and Section 53A of
the Transfer of Properties Act, 1882? "
04. Learned Trial Court in deciding the suit framed 4
nos. of issues which are as follows:
ISSUES
(i) Whether the suit is maintainable?
(ii) Whether the suit land is joint property?
(iii)Whether predecessor or plaintiffs
executed any „Sharanlipi‟ and sold his share in
favour of defendant on 11.02.1987 and
handed over possession of his share over the
suit land to defendant?
(iv) Whether the plaintiffs are entitled to any
relief as prayed for and or any other
relief/reliefs in this suit?
05. And both the parties of the appeal have adduced
oral/documentary evidences on record before the Learned
Trial Court which are as follows:
(A) Plaintiffs‟ Exhibits:-
Ext.-1:- Khatian No.437.
Ext.-2:- Another Khatian No. 437.
Ext.-3:- Attested copy of survival certificate of
deceased Pratap Chandra Bhowmik.
Ext.-4:- Death certificate of deceased Pratap
Bhowmik.
(B) Plaintiffs‟ Witnesses:-
PW.-1 Partha Bhowmik.
PW.-2 Smt. Minu Bhowmik (Dey)
(C) Defendant‟s Exhibits:-
Ext.A- Agreement for sale dated 11.02.1987.
(D) Defendant‟s Witnesses:-
DW.-1 Sri Nanigopal Deb.
DW.-2 Sri Pradesh Bhowmik.
DW.-3 Md. Abdulla.
DW.-4 Pranesh Roy.
Finally, by judgment and order dated 07.12.2020
Learned Trial Court dismissed the suit of the respondent-
plaintiffs on contest with costs. The order of Learned Trial
Court is as follows:
"In the result, the suit of the plaintiffs is
dismissed on contest with cost.
The case is disposed on contest.
Make necessary entry in the relevant Trial
Registrar & CIS.
Prepare decree accordingly and put up before
me for signature within 15 (fifteen) days from
today latest on 21.12.2020.
Consign the record to the record room after
due compliance."
06. But the Learned Court below at the time of
deciding issue Nos. 1 and 4 gave the following observation in
last para.
"Thus, therefore, considering all, I find the
defendant is entitled to get benefit under Section 53(A) of
T.P. Act and possession of the defendant is protected under
said possession and the suit of the plaintiffs for partition is
not maintainable and plaintiffs are not entitled to get any
relief in this suit. Accordingly, issue Nos. 1 and 4 are decided
in negative and against the plaintiffs."
07. Challenging that judgment the plaintiffs of the
original suit as appellants preferred First Appeal before the
Learned Court of Learned District Judge, Unakoti District,
Kailashar which was numbered as T.A. 05 of 2021 and the
Learned District Judge, Unakoti District, Kailashar by
judgment dated 25.08.2022 allowed the appeal by setting
aside the judgment and decree of the Learned Court below.
The operative portion of the judgment and order of the
Learned First Appellate Court is as follows:
"In the result, the appeal filed by the
plaintiffs-appellants is allowed. Consequently,
the judgment and decree passed by the
learned trial court are set aside.
Prepare appellate decree accordingly.
Send down the LCR along with a copy of this
judgment.
The case stands disposed of accordingly."
08. Thereafter, the defendants as appellant has
preferred this appeal as already stated. In course of hearing,
Learned Counsel for the appellant confined his argument
only on the point that the disputed Sharan Lipi(Exhibit-A)
executed on 11.02.1987 was not required to be registered in
view of the provision provided under Section 17(1A) read
with Section 49 of the Registration Act and submitted that
the said provision was introduced by way of amendment of
the Registration Act in the year 2001, and (Exhibit-A) was
executed in the year 1987, so, there was no scope to place
any reliance on the finding of Learned First Appellate Court
that Sharan Lipi (Exhibit-A) was proved to be unregistered
one. So, according to Learned Counsel, the judgment of the
Learned First Appellate Court was perverse, as the Learned
First Appellate Court did not consider the relevant provision
of law and was pleased to set aside the finding of Learned
Trial Court and relied upon one citation reported in (2023) 2
TLR SC 32 wherein in para 13 of the said judgment, Hon'ble
the Apex Court observed as under:
"13. Under the circumstances, as per proviso
to section 49 of the Registration Act, an
unregistered document affecting immovable
property and required by Registration Act or
the Transfer of Property Act to be registered,
may be received as evidence of a contract in a
suit for specific performance under Chapter II
of the Specific Relief Act, 1877, or as evidence
of any collateral transaction not required to
be effected by registered instrument,
however, subject to section 17(1A) of the
Registration Act. It is not the case on behalf
of either of the parties that the
document/Agreement to Sell in question
would fall under the category of document as
per section 17(1A) of the Registration Act.
Therefore, in the facts and circumstances of
the case, the High Court has rightly observed
and held relying upon proviso to section 49 of
the Registration Act that the unregistered
document in question, namely, unregistered
Agreement to Sell in question shall be
admissible in evidence in a suit for specific
performance and the proviso is exception to
the first part of section 49."
Relying upon the said citation, Learned Counsel
for the appellant submitted that Learned First Appellate
Court did not consider the aforesaid principle of law laid
down by the Hon'ble Apex Court and came to an erroneous
finding and prayed before the Court to set aside the
judgment of the Learned First Appellate Court upholding the
judgment of the Learned Trial Court below.
09. On the contrary, Learned Counsel, Ms.
Purkayastha at the time of hearing fairly submitted that the
citation referred by Learned Counsel for the appellant
supports the case of the respondent-plaintiffs and according
to her the principle of law laid down by the said
judgment/citation is applicable in a suit for specific
performance of contract. She further submitted that the
provision of Section 17(1A) and Section 49 of the Indian
Registration Act is not supporting the case of the appellant-
defendant and furthermore, Section 53(A) of the Transfer of
Property Act will also not be applicable in the present case,
since Exhibit-A was not duly registered as required by law
under Section 17(1A) and Section 49 of the Registration Act.
10. Further, Learned Counsel also relied upon one
citation of the Hon'ble Supreme Court of India in Ameer
Minhaj vs. Dierdre Elizabeth (Wright) ISSAR and Ors dated
04.07.2018 reported in (2018) 7 SCC 639 wherein in para
nos. 10 and 12 of the said citation Hon'ble the Apex Court
observed as under:
"10. On a plain reading of this provision, it is
amply clear that the document containing
contract to transfer the right, title or interest
in an immovable property for consideration is
required to be registered, if the party wants
to rely on the same for the purposes of
Section 53-A of the 1882 Act to protect its
possession over the stated property. If it is
not a registered document, the only
consequence provided in this provision is to
declare that such document shall have
no effect for the purposes of the said
Section 53-A of the 1882 Act. The issue, in our
opinion, is no more res integra. In S. Kaladevi
v. V.R. Somasundaram:(2010) 5 SCC 401 this
Court has restated the legal position that
when an unregistered sale deed is tendered in
evidence, not as evidence of a completed sale,
but as proof of an oral agreement of sale, the
deed can be received as evidence making an
endorsement that it is received only as
evidence of an oral agreement of sale under
the proviso to Section 49 of the 1908 Act.
11. Section 49 of the 1908 Act 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
(c) 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 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."
"12. In the reported decision, this Court has
adverted to the principles delineated in K.B.
Saha and Sons (P) Ltd. V. Development
Consultant Ltd.:(2008) 8 SCC 564, and has
added one more principle thereto that a
document is required to be registered, but if
unregistered, can still be admitted as
evidence of a contract in a suit for specific
performance. In view of this exposition, the
conclusion recorded by the High Court in the
impugned judgment: Dierdre Elizabeth
(Wright) Issar v. Ameer Minhaj, 2016 SCC
OnLine Mad 31541 that the sale agreement
dated 09-07-2003 is inadmissible in evidence,
will have to be understood to mean that the
document though exhibited, will bear an
endorsement that it is admissible only as
evidence of the agreement to sell under the
proviso to Section 49 of the 1908 Act and
shall not have any effect for the purposes of
Section 53-A of the 1882 Act. In that, it is
received as evidence of a contract in a suit for
specific performance and nothing more. The
genuineness, validity and binding nature of
the document or the fact that it is hit by the
provisions of the 1882 Act or the 1899 Act, as
the case may be, will have to be adjudicated
at the appropriate stage as noted by the trial
court after the parties adduce oral and
documentary evidence."
11. Learned Counsel further submitted that even if
the appellant-defendant wants to get any benefit under
Section 53(A) of the T.P. Act in that case also in view of the
provision laid down by the Hon'ble Apex Court the said
document i.e., Exhibit-A was supposed to be registered but
here in the given case Exhibit-A was proved to be
unregistered, so, legally no reliance can be placed upon said
Exhibit-A and finally submitted the said document may be
used in a suit for Specific Performance of Contract and urged
before the Court for dismissal of the appeal.
12. I have heard submission of Learned Counsels of
both the sides at length and gone through the records of the
Learned Courts below. This present appeal is preferred
challenging the judgment of the Learned First Appellate
Court who by the judgment was pleased to set aside the
judgment passed by Learned Trial Court. The respondent-
plaintiffs claimed for partition of the suit land on the basis of
joint possession. On the other hand, the defendant-appellant
took the plea that the suit land was already been handed
over to him in pursuance of Exhibit-A on 11.10.1987. So,
question of partition does not arise but the Learned Court
below, dismissed the suit of the respondent-plaintiffs but
made an observation that in view of Section 53(A) of the T.P.
Act the possession of the appellant-defendant was protected.
13. Now, here I would like to refer herein below the
relevant provision of Section 17(1A) of the Registration Act
which provides as under:
"[(1-A) The documents containing contracts
to transfer for consideration, any immovable
property for the purpose of Section 53-A of
the Transfer of Property Act, 1882 (4 of
1882), shall be registered if they have been
executed on or after the commencement of
the Registration and Other Related Laws
(Amendment) Act, 2001 and, if such
documents are not registered on or after such
commencement, then, they shall have no
effect for the purposes of the said Section 53-
A.]"
14. Further, Section 49 of the Registration Act
provides as under:
"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
(c) 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 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.]"
From the aforesaid provisions of law it appears
that Exhibit-A as relied upon by the defendant-appellant may
be received as evidence of a contract in a suit for specific
performance or as evidence of any collateral transaction not
required to be effected by registered instrument.
15. Now I would like to refer herein below the
provision of Section 53(A) of the Transfer of Property Act,
which provides as under:
"[53-A. Part performance.--Where any person
contracts to transfer for consideration any
immovable property by writing signed by him
or on his behalf from which the terms
necessary to constitute the transfer can be
ascertained with reasonable certainty:
and the transferee has, in part performance of
the contract, taken possession of the property
or any part thereof, or the transferee, being
already in possession, continues in possession
in part performance of the contract and has
done some act in furtherance of the contract,
and the transferee has performed or is willing
to perform his part of the contract,
then, notwithstanding that [***], where there
is an instrument of transfer, that the transfer
has not been completed in the manner
prescribed therefor by the law for the time
being in force, the transferor or any person
claiming under him shall be debarred from
enforcing against the transferee and persons
claiming under him any right in respect of the
property of which the transferee has taken or
continued in possession, other than a right
expressly provided by the terms of the
contract:
Provided that nothing in this section shall
affect the rights of a transferee for
consideration who has no notice of the
contract or of the part performance thereof.]"
From the conjoint reading of the aforesaid
provisions of law it appears that unless the purported
document is registered under Section 17(1A) or Section 49
of the Registration Act then Section 53(A) shall have no
effect for the proposed purpose.
16. Thus, finding of the Learned Trial Court that the
appellant defendant is entitled to get protection under
Section 53(A) of the T.P. Act was perverse not binding upon
the respondent-plaintiffs.
17. In view of the principle of law laid down by the
Hon'ble Apex Court, the citation as referred by Learned
Counsel for the appellant-defendant is based on suit for a
specific performance of contract cannot be applied in this
case. Rather the citation as referred by Learned Counsel for
the respondent-plaintiffs is very much applicable for the just
decision of this case. There was/is also no contrary evidence
on record from the side of the appellant-defendant that he
was adversely possessing the suit land denying the right,
title, interest of the present respondent plaintiffs.
18. So, after hearing both the sides and after going
through the judgments of the Learned Court below it appears
that Learned First Appellate Court after considering all
aspects has rightly and reasonably delivered the judgment
setting aside the judgment of the Learned Trial Court below
and after going through the same it appears to me that there
is no scope on the part of this Court to interfere with the
judgment passed by Learned First Appellate Court. The
substantial question of law as formulated by the Court is
accordingly answered in negative against the present
appellant-defendant of this appeal.
19. In the result, the appeal filed by the appellant-
defendant is hereby dismissed on contest with costs. The
judgment and decree dated 25.08.2022 passed by Learned
District Judge, Unakoti District, Kailashahar allowing the Title
Appeal No. 05 of 2021 by setting aside the judgment and
decree dated 07.12.2020 passed by Learned Civil Judge,
Unakoti District, Kailshahar in connection with case No.
T.S.(P) 35 of 2018 is hereby upheld and accordingly it is
affirmed. Pending application, if any, also stands disposed of.
Prepare decree accordingly and send down the
LCRs along with copy of the judgment.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.02.05
11:15:42 +05'30'
Purnita
