1 2025:CGHC:55448 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 259 of 2016 1 - Smt. Salma Sheikh W/o Shri Asad Rizvi, Aged About 44 Years Occupation- Advocate, R/o- Mohalla Kedarpur, Bhatthi Road, Ambikapur, District- Surguja, Chhattisgarh 2 - Asad Rizvi (Died Through Lrs) As Per Honble Court Order Dated 20-08- 2025 2.1 - Shama Rizvi D/o Late Asad Rizvi Aged About 30 Years R/o Ward No.20, Mahavir Mandir, Mahavir Para Ambikapur District- Sarguja (C.G) 3 - Ali Akhtar Rizvi, S/o A.M. Rizvi, Aged About 34 Years Occupation- Advocate, R/o- Mohalla Kedarpur, Bhatthi Road, Ambikapur, District- Surguja, Chhattisgarh ---Defendants --- Appellants Versus 1 - Nisar Ahmed S/o Late Mohd. Isha, Aged About 49 Years Occupation- Government Servant, R/o- Mohalla- Nawapara, Police Station, Tahsil And Post- Surajpur, District- Surajpur, Chhattisgarh 2 - Mushtak Ahmed, S/o Late Mohd. Isha, Aged About 44 Years Occupation- Government Servant, R/o- Mohalla- Nawapara, Police Station, Tahsil And Post- Surajpur, District- Surajpur, Chhattisgarh 3 - Irshad Ahmed Dead Through Lrs :- 3.1 - Smt. Safraun Begam W/o Late Irshad Ahmad, Aged About 50 Years R/o Mohalla Navapara, Tehsil And Post Surajpur, District- Surajpur, Chhattisgarh 3.2 - Sameer Ahmad S/o Late Irshad Ahmad, Aged About 21 Years R/o Mohalla Navapara, Tehsil And Post Surajpur, District- Surajpur, Chhattisgarh 3.3 - Aina Irshad D/o Late Irshad, Aged About 18 Years R/o Mohalla Navapara, Tehsil And Post Surajpur, District= Surajpur, Chhattisgarh 4 - Shakil Ahmed, S/o Late Mohd. Isha, Aged About 38 Years Occupation- Business, R/o- Mohalla- Nawapara, Police Station, Tahsil And Post- Surajpur, District- Surajpur, Chhattisgarh --- Plaintiffs 5 - State Of Chhattisgarh, Through Collector Surguja, Ambikapur, District- Surguja, Chhattisgarh,.......Defendant No. 4., District : Surguja (Ambikapur), Chhattisgarh --- Defendant No. 4 --- Respondents Digitally signed by RAMESH KUMAR VATTI Date: 2025.11.24 15:54:25 +0530 2 For Appellants/Defendants : Mr. Pavas Sharma, Advocate holding the brief of Mr. Shakti Raj Sinha, Advocate along with Shama Rizvi / Appellant No. 2.1 appears in person For Respondents No. 1 to 3/ Plaintiffs For Respondent No. 4/ Plaintiff Respondent No. 5/State : : Mr. Shahid Ahmed Ansari, Advocate Sakil Ahmed appears in Person Mr. Pramod Shrivastava, Deputy Government Advocate And FA No. 168 of 2020 1 - Nisar Ahmed S/o Late Mohammad Isa, Aged About 66 Years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh 2 - Musthak Ahmed S/o Late Mohammad Isa, Aged About 61 Years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh 3 - Irshad Ahmed Late. Mohmmad Isa, (Since Dead) 3.1 – Smt. Safrun Begum W/o Late Ishad Ahmed, Aged about 50 years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh 3.2 - Sameer Ahmed S/o Late Irshad Ahmed, Aged About 25 Years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh 3.3 - Aina Irshad D/o Late Irshad Aged About 22 Years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh 4 - Shakil Ahmed Late. Mohammad Isa, Aged About 55 Years R/o Village Navapara, Police Station/ Tahsil And Post Office Surajpur, District Sarguja Chhattisgarh...............Plaintiff, District : Surguja (Ambikapur), Chhattisgarh ---Appellants Versus 1 - Smt. Salma Sheikh W/o Asad Rizvi, Aged About 61 Years R/o Kedarpur, Bhatthi Road, Ambikapur, District Sarguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh 2 - Asad Rizvi (Died) To Leg As Per Honble Court Order Dated 20-08-2025 3 2.1 - Shama Rizvi Daughter Of Asad Abbas Rizvi Resident Of Kedarpur, Bhatthi Road Ambikapur, District- Surguja (C.G.) 3 - Ali Akhatar Rizvi S/o A.M. Rizvi, Aged About 51 Years R/o Kedarpur, Bhatthi Road, Ambikapur, District Sarguja Chhattisgarh., District : Surguja (Ambikapur), Chhattisgarh --- Defendants 4 - State Of Chhattisgarh Through Collector Ambikapur (Sarguja), District Surajpur Chhattisgarh, District : Surajpur, Chhattisgar --- Defendant No. 4 --- Respondents For Appellants/ Plaintiffs No. 1 to 3 For Appellant No. 4/Plaintiff : Mr. Shahid Ahmed Ansari, Advocate Mr. Shakil Ahmed appears in person For Respondents No. 1 to 3/ Defendants For Respondent No. 4/Defendant : : Mr. Pavas Sharma, Advocate holding the brief of Mr. Shakti Raj Sinha, Advocate along with Shama Rizvi / Respondent No. 2.1 appears in person Mr. Pramod Shrivastava, Deputy Government Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment on Board 13/11/2025 1. First Appeal No. 259/2016 has been preferred by defendants No. 1 to 3, whereas First Appeal No. 168/2020 has been preferred by the plaintiffs namely- Nisar Ahmed, Musthak Ahmed, Irshad Ahmed and Shakil Ahmed against the judgment passed by the learned District Judge, Ambikapur, District Surguja (C.G.) in Civil Suit No. 430-A/2011 dated 21.07.2016, whereby the suit filed by the plaintiffs was partly decreed. 2. The plaintiffs filed civil suit for declaration of title, possession, recovery of arrears of rent and damages, inter alia on the ground that land bearing Survey No. 1945/12 admeasuring 0.028 hectare situated at Village Kedarpur, Bhatti Road, Ambikapur was purchased through unregistered sale deed from Secretary, Madhya Pradesh Holy Cross 4 Sisters Association, Ambikapur in sale consideration of Rs.95/- on 30.12.1970. Possession of the property was handed over to the plaintiffs. The names of the plaintiffs were entered into revenue records. House was constructed over the suit property in the year 1973-74. It is further pleaded that plaintiff No. 1 was Junior Engineer in the Irrigation Department and in the year 1974-75, he was posted at Ambikapur, whereas his family was residing in Surajpur. It is pleaded that the suit house was in 02 parts. In one part, plaintiff No.1 was residing, whereas another part was vacant. In the year 1978, uncle of the plaintiffs namely Sheikh Mohammed Nasrulla, who was Patwari, and transferred to Ambikapur, requested the plaintiff no.1 to provide vacant part of house to stay there during service period. The vacant part of the suit house was handed over to late Sheikh Mohammad Nasrulla. In the year 1981. The father of the plaintiffs was residing in one part of suit house alongwith plaintiff no. 1. After superannuation father of the plaintiffs permanently shifted to Surajpur. In the month of November, 1985, late Sheikh Mohammad Nasrulla unauthorizedly took possession of another part of the suit house and sublet it to one K.D. Ramtaker. In the year 1986 late Sheikh Mohammad Nasrulla was transferred to Shankargarh, but his wife and daughter were residing in one part of the suit house. The plaintiffs requested late Sheikh Mohammad Nasrulla to vacate the suit premises, but he refused and denied their title. Thereafter, the suit was filed on 14.10.1988. That suit was registered as Civil Suit No. 11-A/1988 in the Court of learned Civil Judge Class-II, Ambikapur. An objection was raised by the defendants with regard to court fee and thereafter suit was dismissed vide order dated 15.10.1998. The plaintiffs preferred First Appeal No. 70-A/2002 5 before the Court of learned IVth Additional District Judge, Ambikapur, District Surguja. The first appeal preferred by the plaintiffs was allowed and the judgment/order passed by the learned trial Court was set aside and the plaintiffs were granted liberty to file fresh civil suit after affixing proper court fee. The subsequent suit was filed by the plaintiffs on 20.2.2003. 3. Defendants No. 1 to 3 filed written statement and denied plaint averments. They pleaded that the sale deed dated 30.12.1970 (Ex. P/43) is a forged document and the suit property was not recorded in the name of Secretary, Madhya Pradesh Holy Cross Sisters Association, Ambikapur in the year 1970. It is further pleaded that the house was constructed by the mother of defendant No.1 in the year 1968 and electricity connection was provided by the Electricity Department in the year 1978. They pleaded that the defendants are in continuous possession of the suit house and they were making payment of property tax and electricity bills. They also pleaded that one part of suit house was sublet to one K.D. Ramtaker by the mother of defendant No.1. The defendants took a plea of adverse possession. They pleaded that they are in possession of the suit house since 1978 and thus perfected their rights. 4. The learned trial Court framed as many as 11 issues; the parties led evidence and thereafter judgment and decree was passed. 5. Mr. Pavas Sharma, learned counsel appearing for defendants No. 1 to 3 would argue that the learned Trial Court committed error of law while admitting the unregistered sale deed (Ex. P/43) in evidence. It is argued that the learned trial Court failed to observe that there was cloud over the title of the plaintiffs, therefore, there was no occasion for 6 the learned trial Court to pass decree of possession in favour of the plaintiffs and against the defendants. It is also contended that Nisar Ahmed, purchaser of the suit property, never appeared in the witness box before the learned trial Court to prove the contents of sale deed. He would submit that the suit property was not recorded in the name of Madhya Pradesh Holly Cross Sisters Association and thus, better title was not transferred in favour of the plaintiff No. 1. He would argue that the earlier alleged owner of the suit property was Sister M Johanna but she did not appear in the witness box. He would argue that defendants No. 1 to 3 are in possession of suit house since inception and thus, they have perfected their right as per law of prescription. 6. Mr. Pavas Sharma submit that the unregistered sale deed dated 30.12.1970 (Ex. P/43) is a forged document and there are manipulations. He would contend that area of the purchased land was area 0.05 decimal but it was manipulated by 0.07 acre and this fact is evident from naked eyes. He would contend that Ex. P/43 is unregistered document and purchaser Nisar Ahmed or the seller Secretary Madhya Pradesh Holy Cross Sisters Association, Ambikapur or the witnesses did not appear before the learned trial Court to prove the contents of the sale deed. It is argued that the father of the plaintiffs namely Mohd. Isha was posted as Assistant Superintendent of Land Records at Ambikapur in the year 1980 and he passed order of mutation in favor of the plaintiffs contrary to the provisions of Land Revenue Code on 27.09.1980. It is also contend that an appeal was preferred against the order of mutation before the Sub Divisional Officer (Revenue) which was allowed vide order dated 04.09.1990, 7 whereby the order of mutation was held illegal. He would submit that plaintiff No. 1 was minor in the year 1970 and his father prepared a forged sale deed to grab the suit property. He would contend that PW- 1 namely Shakil Ahmed has admitted the fact that in the year 1970, plaintiff No. 1 had no source of income. It is further stated by the said witness that plaintiff No.1 got possession of the suit property in the year 1973 and started construction, whereas the said witness was 11 years old at that time. It is further submitted that defendant No.1 has placed a diary wherein expenditure incurred in construction of house is mentioned and said document has not been refuted by the plaintiffs. He would further submit that the said property was recorded in the name of Madhya Pradesh Holy Cross Sisters Association which was registered according to MP Societies Registration Act and said society did not have authority to alienate the property without prior permission of the Registrar. He would submit that the defendants have placed on record the demand notices issued by Nagar Palika, Ambikapur. He has placed reliance on the judgments passed by the Hon’ble Supreme Court in the matter of Union of India and Others Vs. Vasavi Cooperative Housing Society Limited and Others, reported in (2014) 2 SCC 269, wherein it is held that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case. In Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another, reported in (2003) 8 SCC 745, it is held that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. Further 8 reliance has been placed in the matter of S. Kaladevi Vs. V.R. Somasundaram and Others, reported in (2010) 5 SCC 401, wherein it is held that Section 49 of the Indian Registration Act gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. He would pray to set aside the judgment and decree passed the learned Court below. 7. On the other hand, Mr. Shahid Ahmed Ansari, learned counsel appearing for plaintiffs No. 1 to 3; Shakil Ahmed/plaintiff No. 4 in person and Mr. Pramod Shrivastava, learned Deputy Government Advocate appearing for the State/defendant No. 4 would oppose the submissions made by Mr. Pavas Sharma Advocate. 8. Mr. Shahid Ahmed Ansari would argue that the earlier open land part of Survey No. 1945/1 admeasuring 0.028 hectare was purchased by plaintiff no. 1 through unregistered sale deed in sale consideration of Rs.95/- on 30.12.1970. He would argue that the suit land was renumbered as Survey No. 1945/12 and in the revenue record, names of the plaintiffs were entered and those documents have been placed on record by the plaintiffs vide Ex. P/12 and Ex. P/21. He would refer Ex. P/23 and Ex. P/24 revenue records, wherein Survey No. 1945/1 was recorded in the name of Catholic Institutions, Surguja in the year 1971. He would submit that Rin-Pustika was also prepared by the revenue authorities in favour of plaintiff No. 1 and same has been exhibited as Ex. P/11. He would contend that as the sale consideration was Rs.95/-, therefore, no registration was required according to the provisions of Section 17 of the Registration Act and the learned trial Court committed error of law while denying the relief of declaration of title in favour of the plaintiffs. Mr. Ansari would further submit that the 9 defendants claimed right over the property on the basis of Ex. D/3, where in column No. 20 name of Aysha Khatun is mentioned as possession holder of the property in the years 1968-69 to 1970-71. Mr. Ansari would argue that the original revenue records were called by the learned trial Court to compare with the revenue record (Ex D/3) submitted by the defendants and it was found that Ex. D/3 document submitted by defendant No. 1 is a forged document. He would submit that the learned trial Court exhibited the original record vide Ex. C2 and Ex. C3. It is also contended that the house was constructed by plaintiff No. 1 in the year 1973 after obtaining due permission from authorities. He would contend that a demand notice was issued by the Building Officer of Municipality, Ambikapur vide Ex. P/1. Again notices were issued to plaintiff No.1 to make payment of property tax vide Ex. P/3 and Ex. P/4. He would further submit that order of diversion of land was passed in favor of the plaintiffs by the competent authority. It is also argued that the appellant could not establish that suit property or house was ever recorded in her name. Mr. Ansari would submit that the appeal preferred by defendants No. 1 to 3 may be dismissed and the relief sought by the plaintiffs with regard to title of the property may granted. Mr. Ansari has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Brijvasilal Vs. Abdul Haji, reported in (2001) 9 SCC 367, wherein it is held that the transfer by sale of immovable property of value less than one hundred rupees does not take place till seller places the buyer in possession of the said property. 9. Mr. Shakil Ahmed/plaintiff No. 4 appears in person would support the contention made by Mr. Shahid Ahmed Ansari. 10 10. Mr. Pramod Shrivastava, learned Deputy Government Advocate appearing for the State/defendant No. 4 would support the judgment and decree passed by the learned trial Court. 11. I have heard learned counsel for the parties and perused the records of the Courts below with utmost circumspection. 12. The question for determination would be - (i) Whether the learned trial Court justified in holding that the defendants have no right over the suit property and the plaintiffs are entitled to get vacant possession ? (ii) Whether the learned trial Court justified in denying the relief of declaration of title in favour of the plaintiffs as the sale deed Ex. P/43 is not a registered document ? 13. The plaintiffs exhibited following documents before the learned Trial Court :- 1. Ex. P/1 dated 20.03.1975, whereby the property tax assessed by the authority was affirmed. 2. Ex. P/2, the charges paid plaintiff No.1 for supply of energy. 3. Ex. P/3, a notice issued to the plaintiff No. 1 to pay property tax of year 1976 of Rs.43.20 dated 09.05.1975 4. Ex. P/4, a notice issued by the Property Tax Officer, Surguja. 5. Ex. P/5, receipt of property tax deposited with Nagar Palika Samiti, Ambikapur. 6. Ex. P/6 & Ex. P/7 are electricity bills issued to plaintiff No. 1. 7. Ex. P/8, receipt of deposit of Rs.123/- for diversion of suit property 8. Ex. P/9, receipt of electricity charges paid by plaintiff No. 1. 9. Ex. P/10 & Ex. P/11 are Rin-Pustika. 10. Ex. P/12, revenue records of year 1979-80 whereas names of 11 plaintiffs are recorded. 11. Ex. P/13, notice to pay premium for diversion of the land. 12. Ex. P/14, a certificate issued by Electricity Department. 13. Ex. P/15 & Ex. P/16, certificates issued by Nagar Palika Parishad, Ambikapur with regard to a construction of toilet in the year 1976-77 & 1988-89 14. Ex. P/17, a certificate issued by Assistant Engineer of Electricity Department which states that the electricity connection which was provided in the name of Nisar Ahmed was disconnected and new connection was provided in the name of Sheikh Mohammad Nasrulla. 15. Ex. P/18, a certificate issued by the Additional Executive Engineer of MPEB to the effect that the certificate issued by the department with regard to electricity connection dated 04.03.1998 is true. 16. Ex. P/19 is a complaint made by Shakil Ahmed- plaintiff No. 4 against defendant No. 2 with regard to manipulation of revenue record. 17. Ex. P/20 would show that the suit property was recorded in the name of Madhya Pradesh Holy Cross Sisters Association in the year 1982-83. 18. Ex. P/21, the suit property admeasuring 0.07 acre was recorded in the name of the plaintiffs from 1987-88 to 1989-92 in revenue records. 19. Ex. P/22, Higher Secondary School Certificate issued in favour of plaintiff No.1, wherein his date of birth mentioned 07.06.1947. 20. Ex. P/23 & Ex. P/24 would show that the Catholic Institution sold part of property to different persons. 21. Ex. P/25, judgment and decree passed in Civil Appeal No. 70A/2002, whereby the judgment passed by learned trial Court was set aside and the plaintiffs were granted liberty to filed duly constituted suit before the competent Court. 22. Ex. P/26, direction to the Public Information Officer, Ambikapur to provide information. 12 23. Ex. P/27, an objection raised by plaintiff No. 1 before Assistant Engineer, MPEB, Ambikapur. 24. Ex. P/28, Ex. P/29, Ex. P/30, Ex. P/31, Ex. P/32 & Ex. P/33 are receipts of electricity bills and property tax. 25. Ex. P/34 is notice for diversion. 26. Ex. P/35 order of mutation passed in favour of plaintiff No. 1 dated 24.08.1980. 27. Ex. P/36 & Ex. P/37 revenue records were names of plaintiffs are recorded. 28. Ex. P/43 is unregistered sale deed executed by Secretary, Madhya Pradesh Holy Cross Sisters Association, Ambikapur in favour of Nisar Ahmed dated 30.12.1970 in sale consideration of Rs.95/-. 29. Ex. P/44-C is sale deed executed by Madhya Pradesh Holy Cross Sisters Association in favour of Jagdish Kumar Daan pertaining to Survey No. 1945 area 0.07 acre out of 1.05 acre dated 07.03.1969. 30. Ex. P/45-C is sale deed executed by Madhya Pradesh Holy Cross Sisters Association in favour of Jagdish Kumar Daan pertaining to Survey No. 1945 area 0.03 acre out of 1.05 acre dated 24.10.1969. 31. Ex. P/46-C, sale deed executed by Madhya Pradesh Holy Cross Sisters Association, Ambikapur in favour of Shiv Narayan pertaining to Survey No. 1945 area 09 decimal 44 kadi out of 1.05 acre dated 22.08.1970. 32. Ex. P/47-C sale deed executed by Madhya Pradesh Holy Cross Sisters Association in favour of Suresh Chandra Prasad pertaining to Survey No. 1945 area 05 decimal, 96 kadi out of 1.05 acre dated 22.08.1970. 33. Ex. P/48-C sale deed executed by Madhya Pradesh Holy Cross Sisters Association in favour of Swaroop Lal pertaining to Survey No. 1945 area 04 decimal, 36 kadi out of 1.05 acre dated 22.08.1970. 34. Ex. P/49-C sale deed executed by Genda @ Geda in favour of Madhya Pradesh Holy Cross Sisters Association pertaining to Survey No. 85/1 admeasuring 0.04 acre dated 12.11.1971. 13 35. Ex. P/50-C sale deed executed in by Bhaglu in favour of Madhya Pradesh Holy Cross Sisters Association pertaining to area 0.08 acre out of Survey No. 1966/1 dated 14.12.1971 36. Ex. P/51-C sale deed executed by Nanhu in favour of Madhya Pradesh Holy Cross Association pertaining to Survey No. 92 area 0.01 acre and Survey No. 93/1 area 0.05 acre dated 14.12.1971 37. Ex. P/52-C sale deed executed by Dhobi Ram in favour of Madhya Pradesh Holy Cross Sisters Association pertaining to area 0.04 acre out of Survey No. 1966/33 dated 14.12.1971. 38. Ex. P/59 application moved by Madhya Pradesh Holy Cross Association, Ambikapur to correct revenue map. 39. Ex. P/61 order passed by Sub-Divisional Officer, Ambikapur, whereby Revenue Inspector directed to submit a report. 40. Ex. P/63 is written statement filed by defendants in earlier suit wherein they admitted the fact that wife of defendant No. 1 was in possession of the suit property prior to 30.12.1970. 41. Ex. P/64 is copy of memo of appeal preferred by Smt. Salma Rizvi before Sub-Divisional Officer against order of mutation. 14. The defendants exhibited following documents :- 1. Ex. D/1 affidavit of Smt. Salma Rizvi filed under Order 18 Rule 4 of CPC. 2. Ex. D/2 an order passed by Sub-Divisional Officer, Ambikapur dated 04.09.1990. 3. Ex. D/3 revenue records of year 1967-71 pertaining to Survey No. 1945/1 where name of Aysha is recorded as possession holder of 0.10 acre of the suit property. 4. Ex. D/5 is pages diary where details of expenditure incurred in construction of house maintained. 5. Ex. D/8 is receipt of Rs.500/- paid by Sheikh Mohd. Nasrulla to Nagar Palika Parishad, Ambikapur. 6. Ex. D/9 is property tax notice issued to Sheikh Mohd. Nasrulla by Nagar Palika Parishad, Ambikapur. 14 7. Ex. D/10 to Ex. D/29 are receipts of payment of various taxes between 10.01.1989 till 25.11.2004. 8. Ex. D/30 judgment passed in Civil Appeal No. 70A/2002. 9. Ex. D/31 is revenue records. 10. Ex. D/32 is registration certificate of Holy Cross Institute, Ambikapur. 11. Ex. D/33 is deposition of Shakil Ahmed recorded in Civil Suit No. 11A/88 15. Plaintiffs examined Shakil Ahmed PW-1; Duttarey Pandurang Kapde PW-2; Sobran Singh PW-3; Bhagwan Kushwaha PW-4; Mohd. Munir Ahmed PW-5; Lakhan Kashyap PW-6; S.K. Gadhewal PW-7 and Sister Juli, Secretary, Holy Cross Sisters Association PW-8. 16. Defendants examined Smt. Salma Rizvi DW-1; Rampariksha Singh DW-2 and Jograj Singh Babra DW-3. 17. The learned trial Court exhibited 03 documents Ex. C/1 sale deed executed by Catholic Institution Surguja in favour of Madhya Pradesh Holy Cross Sisters Association pertaining to various survey numbers including Survey No. 1945 area 1.05 acre dated 03.09.1966 and in Kishtbandi Khatauni, Survey No. 1945/3 and Survery No. 1945/12 were recorded in the name of Chhattisgarh Holy Cross Sisters Association. Ex. C/2 revenue records of year 1967-68 and 1968-69 wherein Survey No. 1945/1 area 0.35 acre was recorded in the name of Catholic Institution Surguja and Survey No. 1945/2 area 0.70 as road, but name of Aysha Begum is not mentioned as possession holder. Likewise, Ex. C/3 pertaining to Survey No. 1945/1 is recorded in the name of Catholic Institution Surguja and Survey No. 1945/2 as 15 road, but in column Nos. 14, 16 and 18 name of Aysha Begum is not recorded and Ex. C/2 and Ex. C/3 were compared to their originals by the learned Trial Court. 18. The plaintiffs in the plaint have categorically stated that the suit property was purchased through unregistered sale deed dated 30.12.1970 and possession was handed over. It is also pleaded that construction of house was started in the year 1973 and it was completed soon thereafter. The plaintiffs further pleaded that in the year 1978 Sheikh Mohd. Nasrulla (Patwari), who was transferred to Ambikapur and who was near relative of plaintiffs, sought shelter in the house as one part of the suit house was vacant, and he was permitted to reside there. 19. The plaintiffs’ witnesses in their evidence stated that the possession of the suit property was handed over to plaintiff No. 1 immediately after its purchase. The defendants could adduce evidence to rebut said piece of evidence. 20. Now coming to F.A. No. 259/2016 preferred by Smt. Salma Sheikh. The claim of the defendants over the suit property is based on Ex. D/3, revenue record, wherein Smt Aysha Khatun D/o Sheikh Rozaddin has been recorded as possession holder of the suit property in the year 1968-69, 1969-70 and 1970-71, whereas the plaintiffs place on record tax assessment order, receipts of tax deposits, revenue records, wherein the name of the plaintiffs is entered in revenue records, rin- pustika, order of diversion passed by the Sub-Divisional Officer (R), certificate issued by Madhya Pradesh Electricity Board, unregistered sale deed executed in favour of plaintiff No. 1 and other sale deeds executed by Madhya Pradesh Holy Cross Sisters Association in favour 16 of different persons. 21. The learned trial Court examined validity of Ex. D/3 and found that the entries with regard to possession of Aysha Khatun in the year 1968- 69, 1969-70 and 1970-71 are forged one. Ex. D/3 was compared with its original vide Ex. C/2 and Ex. C/3. The learned trial Court has also recorded findings that initially the suit land was recorded in the name of Holy Cross Sisters Association and later on it was sold in parts to the various persons including plaintiff No. 1. The defendants have not rebutted the Court documents Ex. C/2 and Ex. C/3. 22. Learned counsel for the defendants has argued that a forged unregistered sale deed was executed in favour of the Nisar Ahmed which does not confer any right in his favour. The suit property was sold by Holy Cross Sisters Association, Surguja through unregistered sale deed dated 30.12.1970 to plaintiff No. 1. Sister Juli, plaintiffs’ witness (PW-8) proved registration of Madhya Pradesh Holy Cross Sisters Association and also admitted her signature. She further deposed that Survey No. 1945 was purchased by the Society from Catholic Society and an application for correction of revenue record was moved vide Ex. P/59. She stated that sale deed Ex. P/43 was signed by Sister M Johanna and the said property was sold to the plaintiff no. 1. In cross-examination this witness remained firmed. Therefore the contention made by Mr. Pavas Sharma, learned counsel for the defendants that due execution of the sale deed was not proved by examining witnesses appears to be misconceived. 23. The defendants failed to produce any documents with regard to their title over the suit property. They have taken technical objection in their written statement. The objection that unregistered sale deed Ex. P/43 17 is a forged document, such plea was available with the seller of the property, that is, Holy Cross Sisters Association, Ambikapur and in absence of any right over the property such objection in not tenable. 24. Mr. Pavas Sharma has argued that Shakil Ahmed (PW-1) in his evidence made contradictory statement in paragraphs No. 25, 26 and 28 with regard to education and employment of Nisar (Plaintiff No. 1), but the said piece of evidence does not touch the validity of the sale deed or the right of Holy Cross Sisters Association to alienate the property. 25. With regard to validity of sale deed Ex. P/43, it was executed by Holy Cross Sisters Association and the signature put by Sister M Johanna has been proved by PW-8 Sister Juli. The defendants could not prove that Secretary, Holy Cross Sisters Association had no authority of law to alienate the property. Further the said society had sold plots to many other individuals. 26. It is also argued that the sale of immovable property with a value of less than hundred rupees through unregistered sale deed, in absence of registration, is not admissible in evidence. It is also contended that the Madhya Pradesh Holy Cross Sisters Association was registered Society under the Act of Madhya Pradesh Society Registration Act, therefore, the society had no authority of law to alienate the property. The contention made by Mr. Pavas Sharma cannot be accepted. The transfer by sale of immovable property with a value of less than rupees hundred is permissible, if the seller places the buyer in possession of the said property and registration would be not necessary. Further the defendants failed to establish their right over the property, therefore, the defendants have no right to challenge the authority of the society 18 to alienate the property, particularly when this issue was not raised in written statement. It is also stated that the defendants were in possession of the suit property and fact is evident from Ex. D/5, Ex. D/6 and Ex. D/7. For sake of argument, if the defendants were in possession of the suit property, in absence of title, their possession would be of a trespasser. The details of expenditure incurred in raising construction maintained in a diary, would not be admissible as the defendants could not place relevant documents to demonstrate that the land recorded in name of Holy Cross Sisters Association was purchased by them; proper permission was granted by local body to raise construction; the suit land was recorded in their name in revenue records and the order of diversion was passed. 27. In the matter of Vasavi Cooperative Housing Society Limited (supra), the Hon’ble Supreme Court has held that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration. The relevant paragraphs No. 15, 16, 17, 18 and 19 are reproduced herein below:- “15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. 16. The High Court, we notice, has taken the view that once the evidence is let in by both the parties, the question of burden of proof pales into insignificance and the evidence let in by both the parties is required to be appreciated by the court in order to record its findings in respect of each of the issues that may ultimately determine the fate of the suit. The High Court has also proceeded on the basis that initial burden would always be upon the plaintiff to establish its case but if the evidence let in by the defendants in 19 support of their case probabilises the case set up by the plaintiff, such evidence cannot be ignored and kept out of consideration. 17. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, observed that: (AIR p. 37, para 20) “20. … in a suit [for declaration] if the plaintiffs are to succeed they must do so on the strength of their own title.” 18. In Nagar Palika, Jind v. Jagat Singh, (1995) 3 SCC 426, this Court held as under: (SCC p. 427c) “The onus to prove title to the property in question was on the plaintiff-respondent. … In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit.” 19. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against (sic them), in the absence of establishment of the plaintiff’s own title, the plaintiff must be non-suited. ” 28. In the present case, the plaintiffs have proved their title as the suit property was purchased by the plaintiff no. 1 from Holy Cross Sisters Association through unregistered sale deed dated 30.12.1970. The suit property was recorded in the name of plaintiffs, order of diversion was passed by the competent authority and rin-pustika was also prepared by the revenue authorities. The plaintiffs place on record various notices and receipts issued by various departments pertaining 20 to suit house. Thus, the plaintiffs discharged their burden to prove title to the property in question. 29. In Narbada Devi Gupta (supra), it is held that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The relevant paragraph No. 16 is reproduced here in below:- “16. “Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd., (1981) 1 SCC 80. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”. The situation is, however, different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents.” 30. In the present case, PW-1 Shakil Ahmed as well as PW-8 Sister Juli have proved the execution of sale deed dated 30.12.1070 (Ex. P/43). Sister Juli PW-8 has proved the signature of Sister M Johanna over the sale deed. The defendants could not rebut the evidence adduced by PW-8. 31. In the matter of S. Kaladevi (supra), the Hon’ble Supreme Court has held that Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered and such 21 document if unregistered would not be admissible into evidence. It is further held that unregistered document can be used as an evidence of collateral purpose. The relevant paragraphs No. 11 and 12 are reproduced herein below:- “11. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: “”S.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 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.” 12. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100/- and more could be admitted in 22 evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. 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 in 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.” 32. In the present case, the value of property described in sale deed is less than rupees hundred. The plaintiffs have pleaded and proved that possession was also handed over and, therefore, there was no requirement of registration. Thus, the judgment relied upon by the learned counsel for the defendants is no of help, therefore, question for determination No. (i) is decided against the defendants and the appeal preferred by defendants No. 1 to 3 is hereby dismissed. 33. With regard to question for determination No. (ii). Section 17 of the Registration Act, 1908 deals with documents of which registration is compulsory. Section 17(1) (b) states that other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, or in immovable property requires registration. 34. Section 17 (1) (b) is reproduced herein below:- “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 No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:- 23 (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property” ” 35. Admittedly, the sale consideration was Rs.95/- and possession was also handed over to plaintiff No. 1. The oral evidence as well as the documents would establish that the plaintiffs were in possession of the suit property since its purchase. 36. Section 54 of the Transfer of Property Act, 1882 defines sale and same is reproduced herein below:- “Sale” defined.- “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.- Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.-A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” 37. A bare reading would make it clear that in case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by the instrument or by the delivery of the property as 24 possession of the property was delivered and the value of sale deed was less than one hundred rupees, registration was not compulsorily required. 38. In case of Brijvasilal (supra), the Hon’ble Supreme Court has held, in paragraph No. 5, is reproduced herein below:- “5. On a plain reading in the case of tangible immoveable property of a value less that one hundred rupees, transfer may be either by a registered document or by delivery of possession. But it has been further said in the said section that the delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs in possession of the property. The appellant in the plaint has not stated anywhere as to when he came in possession of the land which is the subject-matter of dispute. In view of Section 54 of the Act till the purchaser is put in possession in respect of any immoveable property of a value less than one hundred rupees the sale does not take place. There is no dispute that in the year 1957 by the aforesaid registered sale deed dated 26-4-1957 the same land was transferred in favour of the respondent. According to us, the High Court was justified in coming to the conclusion that the respondent had acquired valid title on the basis of the aforesaid registered sale deed.” 39. The plaintiffs have claimed right over the suit property on the basis of unregistered sale deed dated 30.12.1970 Ex. P/43, value of the suit property was Rs.95/-. It is also pleaded and proved the possession was handed over to the plaintiffs and thereafter order of diversion was also passed in their favor. The entries were made in revenue records and rin-pustika was also prepared. The plaintiffs raised construction of house over the suit land. As the value of the property was less than Rs.95/-, therefore, according to the provisions of Section 54 of the Transfer of Property Act, 1882 and Section 17(1)(b) of the Registration Act, 1908 and the law laid down by the Hon’ble Supreme Court in the matter of Brijvasilal (supra), it can safely be held that in the case of 25 tangible immovable property of a value less than one hundred rupees, transfer may be made either by a registered document or by delivery of the possession as possession was delivered to the plaintiffs by Holy Cross Sisters Association, Ambikapur immediately after execution of sale deed, therefore, no registration was required. Accordingly, the judgment and decree passed by the learned trial Court whereby the title of the plaintiffs has been denied, is hereby set aside. It is also held that the plaintiffs have title and right over the suit property by virtue of unregistered sale deed dated 30.12.1970 Ex. P/43. The Question for determination No. (ii) is decided in favour of the plaintiffs. Consequently, the appeal preferred by the plaintiffs is hereby decreed. 40. Decree be drawn accordingly. Sd/- (Rakesh Mohan Pandey) Judge vatti