Krishna Pal Sharma ...Appellant/ vs Jagatnarayan Dwivedi
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Uttarakhand High Court

Krishna Pal Sharma ...Appellant/ vs Jagatnarayan Dwivedi on 10 July, 2025

                                                                                     2025:UHC:6203




     HIGH COURT OF UTTARAKHAND AT NAINITAL

                                 Second Appeal No.89 of 2022

Krishna Pal Sharma                                           ...Appellant/ Defendant

                                                  Versus

Jagatnarayan Dwivedi                                            ...Respondent/Plaintiff
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Presence:-
Ms. Prabha Naithani, Advocate for the appellant
Mr. D.C.S. Rawat, Advocate for the respondent
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Hon'ble Shri Justice Subhash Upadhyay, J.

Present second appeal has been filed against the

judgment and order dated 24.03.2021 passed by learned 1st

Additional District Judge, Rishikesh, District Dehradun in

Civil Appeal No.20 of 2017 "Krishna Pal Sharma Vs.

Jagatnarayan Dwivedi" and judgment and order dated

28.02.2017 passed by Civil Judge (Junior Division), Rishikesh,

District Dehradun in O.S. No.04 of 2006, "Jagatnarayan

Dwivedi Vs. Krishna Pal Sharma and Others".

2. An Original Suit No. 4 of 2006 was filed by the

respondent/plaintiff against the appellant/defendant with

following contentions:-

"a) Property no. 384/3, Haridwar Road (Old No.86 Haridwar Road) was purchased by

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respondent/plaintiff on 17.10.2002 from Ishwar Das Kalra through registered sale deed which was registered in Sub-Registrar Office, Rishikesh and by supplementary registered sale deed the roof rights were also sold to the respondent/plaintiff.

b) Appellant/defendant who is the neighour of the respondent/plaintiff and is residing as a tenant in the accompanying building is using the roof right illegally and is trying to raise construction over the roof.

c) The appellant/defendant has opened a window towards the property of the respondent/plaintiff and the alleviation(NTTkk) on the window has also been constructed which is extended/encroached towards the roof of the plaintiff as such the same may be demolished."

3. The appellant/defendant filed a written statement

and did not disputed the fact of the purchase of the property

and its ownership by the respondent/plaintiff but contended

that the property was not sold with roof rights and on the

contrary, submitted that by a pronote dated 03.10.2006 and

an agreement Ishwar Das Kalra intended to sell the said roof

rights to him.

4. The learned Trial Court and the learned Appellate

Court on the basis of the pleadings of the parties and the

evidence adduced came to a conclusion that on the basis of the

registered sale deed the respondent/plaintiff became the owner

of the property along with roof rights and the pronote could

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not have been executed by Ishwar Das Kalra subsequently for

roof rights to the appellant/defendant once he had sold the

property with roof rights to the respondent/plaintiff through

registered sale deed dated 17.10.2002. This fact was also

considered by the learned Trial Court as well as the learned

Appellate Court that the agreement and the pronote which was

made sole basis for claiming roof right by the

appellant/defendant was an unregistered document. Learned

Trial Court as such recorded the finding that the

appellant/defendant could not claim any roof right on the

basis of the said unregistered document and also could not

prove that the alleviation constructed over the window which

was extended towards the property of the respondent/plaintiff

was completed prior in time to the date of registered sale deed.

5. Thus, the learned Court below decreed the suit of

the respondent/plaintiff and passed an order directing the

appellant/defendant to remove the alleviation raised towards

the property of the plaintiff.

6. The said finding of facts were also reiterated by the

learned Appellate Court. Section 17(1-A) of the Registration

Act, 1908 deals with the situation where a person claims

ownership over the property on the basis of an unregistered

document. The Hon'ble Apex Court in the case of Ameer

Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Others,

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(2018) 7 SCC 639 has considered the effect of an unregistered

document and in para 9 to 12 of the said judgment held as

hereunder:-

"9. Section 17(1-A) of the 1908 Act reads thus:

"17. Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act 16 of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871) or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely-

(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."

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

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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 a 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 c 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 d evidence of any collateral transaction not required to be effected by registered instrument."

12. In the reported decision, this Court has

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adverted to the principles delineated in K.B. Saha & Sons (P) Ltd. v. Development Consultanı Lid. 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 that the sale agreement dated 9- 7-2003 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."

7. The said view was reiterated by the Hon'ble Apex Court in Civil Appeal No.1598 of 2023, Sakeel Ahmed Vs. Syed Akhlaq Hussain decided on 01.11.2023.

8. In the considered opinion of this Court, the

concurrent finding recorded by the learned Trial Court and the

learned Appellate Court that the appellant/defendant could not

establish ownership rights on the roof of the plaintiff on the

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basis of a pronote and agreement (both unregistered

documents) are finding of facts based on appreciation of oral

and documentary evidence. Thus, no substantial question of

law arises in this matter.

9. Accordingly, second appeal fails and the same is

dismissed in limine.

(Subhash Upadhyay, J.) 10.07.2025 ss SUKHBANT

DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF

2.5.4.20=71978f9c61bfde0ba69967c787b1764ea7bc7dd129a8a6380

SINGH d49b1885e628615, postalCode=263001, st=UTTARAKHAND, serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BEBD2B7D72C4 2261361AED33172F152148D, cn=SUKHBANT SINGH Date: 2025.07.17 10:20:26 +05'30'