1 2025:CGHC:40372 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 324 of 2017 1. Niranjan S/o Shri Devcharan Patel, Aged About 66 Years R/o Village Teram, Tahsil Gharghoda, District Raigarh, Chhattisgarh 2. Nohar Prasad S/o Shri Rudraprasad Patel, Aged About 45 Years R/o Village Teram, Tahsil Gharghoda, District Raigarh, Chhattisgarh ................Plaintiffs ... Appellant(s) versus 1. Sidarsingh S/o Shri Sadhram, Aged About 48 Years R/o Village Teram, Tahsil Gharghoda, District Raigarh, Chhattisgarh 2. Puniram S/o Shri Katari, Aged About 45 Years R/o Village Teram, Tahsil Gharghoda, District Raigarh, Chhattisgarh .............… Defendants ... Respondent(s) For Appellant(s) : Mr. Abhishek Saraf, Advocate For Respondent(s) : Mr. Atul Gond, Advocate on behalf of Mr. Ajeet Kumar Yadav, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 12.08.2025 1. This is plaintiff’s first appeal under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 25.04.2017 passed by the learned 1st Additional District Judge Raigarh (C.G.) in Civil Suit No. A/85/2010 by which the learned trial MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.09.30 16:15:05 +0530 2 Court has dismissed suit filed by the plaintiffs for declaration of title and possession. 2. Brief facts as reflected from the record are that: (a) The plaintiff filed a suit mainly contending that the plaintiffs No. 1 and 2 are the uncle and nephew, similarly, defendants No. 1 and 2 are also uncle and nephew and genealogy was also annexed with the plaint. It is also the case of the plaintiffs that the ancestors of defendants Sadhram has executed Istifa Patta for Rs. 100/- on 23.06.1947 and for Rs. 30/- on 09.04.1948 in favour of the ancestors of plaintiffs and sold the property which is described in the Schedule A of the plaint (hereinafter referred to as “suit property”). The plaintiffs are in possession of the suit property since 1947-48 and utilizing the same. (b) It is also the case of the plaintiffs that the State Government has executed the lease of this suit property on 17.03.2002 in favour of defendants and their names have been recorded without information to the plaintiffs. The same was canceled by the Collector Raigarh on 07.07.2003. Thereafter, the defendants forcefully taken possession of the house constructed in the suit property, therefore, a proceeding was initiated under Section 145 and 146 of Criminal Procedure Code. It is also the case of the plaintiffs that the plaintiffs from their ancestors are in possession on the suit property, but they have been dispossessed by the defendants forcefully and illegally in the garb of order passed by the Sub-Divisional Magistrate under Section 145 and 146 of Cr.P.C. which has 3 necessitated the plaintiffs to file suit for declaration of title and possession. 3. The defendants have filed written statement denying the allegations made in the plaint mainly contending that it has denied that the suit property was sold to the plaintiffs. It is specifically stated that by Istifa Patta for Rs. 100/- on 23.06.1947 and for Rs. 30/- on 09.04.1948 has been written by the ancestors of defendants in favour of the ancestors of the plaintiffs and possession has been given by them. In fact they are illegally in possession of the suit property. It is also denied that before issuance of Patta, the plaintiffs were not noticed, thus, it is also denied that they are forcefully taken possession of the suit property. The SDO has rightly recorded its finding that since 28.04.2000 they are in possession of the suit property, the defendants have also taken plea of limitation and has prayed for dismissal of the suit. 4. The learned trial Court on the pleadings of the parties has framed as many as 9 issues, issues No. 1 and 5 are necessary, therefore, they are extracted below as under: “1- D;k oknhx.k ds iwoZt nsopj.k }kjk 23-06-1947 ,oa 09-04-1948 dks vuqlwph v dh Hkwfe dks Ø; fd;k x;k\ 5- D;k oknhx.k] izfroknhx.k ls fookfnr Hkwfe dk vkf/kiR; okil izkIr djus ds vf/kdkjh gSa\” 5. The plaintiffs to substantiate their case have exhibited documents: Istifa Patta (Exhibit P/1 & P/2), Certified copy of the Order (Exhibit P/3 to P/6). The plaintiff witness PW-1 by way of examination under 4 Order 18 Rule 4 of CPC has reiterated the averments which he has been made in the plaint. The said witness was cross-examined wherein it has been categorically admitted that Exhibit P/1 and P/2 are not registered documents. He has also admitted that who has written the Exhibit P/1 and P/2 is not known to him, he has also admitted that they have been ejected from the suit property prior 20 years and now he said it is more than 20 years. 6. The defendant examined defendant No. 2 himself as DW-2 under Order 18 Rule 4 of CPC wherein he has reiterated the stand taken by him in the written statement and the witness was cross- examined, but nothing was brought on record to rebut the factum of non-execution of sale deed. The learned trial Court on the basis of evidence material on record has dismissed the suit. Being aggrieved with this judgment and decree, the plaintiffs have preferred present first appeal before this Court. 7. Learned counsel for the appellants would submit that the trial Court has committed illegality in dismissing the suit as they have placed on record the Exhibit P/1 and P/2 by which it has been categorically proved by them that the ancestors of the defendants have sold the property, despite the sufficient evidence brought on record the trial Court has committed illegality in dismissing the suit. Accordingly, he would pray for allowing the appeal. 8. Per contra learned counsel for the respondent oppose the submission and would submit that the trial Court has rightly recorded its finding that Exhibit P/1 and P/2 are not registered 5 documents and the sale of immovable property is not permissible without registered document if the sale consideration is Rs. 100/- or above, thus, he would pray for dismissal of the appeal. 9. I have heard learned counsel for the parties and perused the record with utmost satisfaction. 10. From the submission made by both the parties, the issue emerged for determination of this Court whether the finding recorded by the trial Court while dismissing the suit suffers from perversity or illegality warranting interference by this Court. 11. From bare perusal of the record and evidence brought on record, it is quite vivid that the Exhibit P/1 and P/2 are only agreement to sale, from the averments made in the Exhibit P/1 and P/2 wherein it has been clearly admitted stated that its an Ikrarnama and even otherwise, as per Section 17 of the Registration of Property Act, 1908, the property valued more than Rs. 100/- cannot be transferred without registered documents. To appreciate this point , it is expedient for this Court to extract the Section 17 of the Registration Act, 1908 which reads as under: “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 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, (a) instruments of gift of immovable property; (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, 6 whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) [non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates 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:] [Inserted by Act 21 of 1929, Section 10.] Provided that the [State Government] [Substituted by A.O.1950, for "Provincial Government" .] may, by order published in the [Official Gazette] [Substituted by A.O.1937, for "Local Official Gazette" .], exempt from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(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, 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.] [Inserted by Act 48 of 2001, Section 3 (w.e.f. 24.9.2001).] (2) Nothing in clauses (b) and (c) of sub-section (1) applies to (I) any composition deed; or (iii) any instrument relating to shares in a joint stock company, notwithstanding that the assets of such company consist in whole or in part of immovable property; or (iii) any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except insofar as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or 7 (iv) any endorsement upon or transfer of any debenture issued by any such company; or (v) [any document other than the documents specified in sub-section (1-A)] [Substituted by Act 48 of 2001, Section 3, for "any document" (w.e.f. 24.9.2001).] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or (vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding] [Substituted by A.O.1937, for "and any award" .]; or (vii) any grant of immovable property by the [Government] [Substituted by A.O.1950, for "Crown" .]; or (viii) any instrument of partition made by a Revenue Officer; or (ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or (x) any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or[(x-a) any order made under the Charitable Endowments Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or] [Inserted by Act 39 of 1948, Section 2 (w.e.f. 3.9.1948).] (xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage- money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. [Explanation [Inserted by Act 2 of 1927, Section 2.].a document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.” 8 12. considering the provisions of Section 17 of the Registration Act, 1908, it is quite vivid that no transfer of any immovable property which is valued more than Rs. 100/- cannot be transferred without registered documents. The Hon’ble Supreme Court in case of M.S. Ananthamurthy & Another vs. Manjula Etc reported in 2025 INSC 273, wherein the Hon’ble Supreme court in paragraphs 51 and 52 has held as under: “51. Section 17(1)(b) prescribes that any document which purports or intends to create, declare, assign, limit or extinguish any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property is compulsorily registerable. Whereas, Section 49 prescribes that the documents which are required to be registered under Section 17 will not affect any immovable property unless it has been registered. 52.The aforesaid has been emphatically laid down by this Court in Shyam Narayan Prasad v. Krishna Prasad & Ors., reported in (2018) 7 SCC 646. The relevant observations are reproduced hereinbelow:- “20. Section 17(1)(b) of the Registration Act 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 Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.” (Emphasis supplied) 13. In view of the above legal position and also considering the finding recorded by the trial Court in paragraph 7 that from perusal of the documents the sale consideration is Rs. 100/-, therefore, as per the 9 Section 54 of the Transfer of Property Act, 1882 cannot be transferred without registered document and similarly, as per Section 17 of the Registration of Property Act, 1908 also the transfer of the property valued more than Rs. 100/- cannot be transferred without registered documents. The trial Court has also gone through the contents of the documents from it, it is quite clear that it is not sale but it is an agreement. 14. From the perusal of that document, it is quite vivid that its a agreement, therefore, considering the entire facts and circumstances of the case and reasoning assigned by the trial Court, I do not find any irregularity, illegality and perversity in the impugned judgment passed by the trial Court which warrant interference. 15. Accordingly, the first appeal is liable to be dismissed and it is dismissed. Sd/- (Narendra Kumar Vyas) Judge Manish