Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 me. His father had died in 1998 and thereaer, it was inherited by him. Plainff alleged that in the month of November, 2009, when he was away from his home, the defendant forcibly took possession thereof and installed his old electricity meter connecon in the plot from other residenal house and also started raising construcon on the disputed property without having any right to do so. Plainff prayed for decree of possession. 5. Defendant in wri'en statement disputed the claim of the plainff. According to him, father of the plainff had sold the suit property to him (defendant) vide an unregistered sale deed/full payment agreement dated 05.06.1993 and had delivered physical possession thereof. Aer taking possession, defendant raised construcon thereon, installed electricity connecon in name of his son and ever since then, he is using the same being owner in possession thereof. He also claimed that his possession over the suit property was hosle to the knowledge of father of the plainff ll 1998 and thereaer to the knowledge of the plainff, which is now more than 12 years and therefore, in alternave, he has become owner of the suit property by way of adverse possession. He prayed for dismissal of the suit. 6. Necessary issues were framed. Evidence produced by the pares was taken on record. Trial Court found that vide a full payment agreement (Ex.D1), father of the plainff had sold the suit property to the defendant on 05.06.1993, which not only bears the thumb impression of Cha'ar Singh, the father of the plainff, but also the signatures of plainff himself as an a'esng witness. It was further found that the possession of the suit property was delivered to the defendant at that me. The asseron of the plainff to the effect that he was dispossessed by the defendant in 2009 was held to be not proved. It was thus found that defendant had purchased the suit property by virtue of an unregistered sale deed. It was also held that plea of adverse possession as claimed by the defendant was not available to him. However, the plainff was non-suited on the ground that he did not have any cause of acon or locus standi and that he had not come to the Court with clean hands. With these findings, the suit was dismissed by the trial Court. Page 2 of 14 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 7. Before the First Appellate Court, contenon was raised on behalf of the appellant-plainff that possession of the defendant over the suit property was permissive. Said contenon of the appellant was found by the Appellate court to be contrary to para No.3 of the plaint, in which it was clearly alleged by the plainff that defendant had taken forcible possession of the suit property in 2009, when he was away from the village. First Appellate Court further held that trial Court had rightly held that plainff was estopped from filing the present suit, as by virtue of Ex.D1, his father had sold the property through an unregistered document, but by denying the execuon thereof, and by claiming that he was forcibly dispossessed by the defendant, plainff had not come to the Court with clean hands and that he did not have any locus standi or cause of acon to file the suit. Affirming the findings of the trial Court, the First Appellate Court dismissed the appeal of the plainff vide judgment dated 11.04.2022. 8. Assailing the aforesaid judgments of the Courts below, it is contended by learned counsel for the appellant that document Ex.D1 on which the Courts below have relied, is an unstamped and unregistered document and therefore, it cannot be looked into for any purpose whatsoever, in view of Secon 35 of the Stamp Act and Secon 49 of the Registraon Act. Learned counsel for the appellant has referred to “ Avinash Kumar Chauhan v. Vijay Krishna Mishra”, Law Finder Doc Id # 178470. It is further contended that mere delivery of possession without registered instrument cannot confer any tle of the immovable property worth more than ₹100/- and as such, defendant cannot claim to have become owner of the property in dispute on the strength of Ex.D1. Sll further, it is argued that since Ex.D1 is unregistered instrument, therefore, defendant cannot protect his possession, as there is nothing to show that aer execuon of Ex.D1 on 05.06.1993, defendant had done anything in part performance of the agreement (Ex.D1). For this purpose, learned counsel has referred to “Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (Dead) by LRs and others” Supreme Court Cases (2002) 3 SCC and “A. Manicka Mudaliar v. Murugesa Mudaliar and another”, 2012-2 p. 3 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 L.W. 28 (High Court of Madras). Contending that the Courts below have failed to appreciate the factual and legal posion in right perspecve; and with the aforesaid submissions, counsel for the appellant prayed for seAng aside the impugned judgments of the Courts below and to accept the present appeal, thereby decreeing the suit of the plainff-appellant. 9. I have considered submissions of learned counsel for the appellant and have appraised the enre record including the trial Court record carefully. 10. It is not in dispute that earlier Cha'ar Singh, the father of the plainff was the owner of the suit property. According to defendant, the father of the plainff had sold the said property to him (defendant) by virtue of an unregistered sale deed dated 05.06.1993 (Ex.D1). Perusal of Ex.D1 reveals that it is purported to have been executed by Cha'ar Singh, i.e. father of the plainff in favour of defendant – Mahinder. It is not only signed by Ramphal, Sarpanch of the village, but further a'ested by Dhoop Singh, Sube Singh and also by plainff Suresh himself. Although, plainff – Suresh in his tesmony denied the execuon of Ex.D1 by his father and even denied his own signature on the said document, but he admi'ed that Ramphal, used to be Sarpanch of the village in the year 1993 and that Sube Singh and Dhoop Singh belong to his village. 11. Defendant – Mahinder in his tesmony not only proved the execuon of Ex.D1 by father of the plainff, he also deposed that said Ex.D1 was scribed by Ramphal, Sarpanch. Defendant had also examined not only Ramphal, Sarpanch as DW2, but further examined another witness, namely, Dhoop Singh as DW6, both of whom proved the execuon of Ex.D1 by Cha'ar Singh, the father of the plainff in favour of the defendant. Not only this, defendant further examined Sh. B.N. Srivastav, Handwring & Finger Print Expert as DW7, who aer comparing the admi'ed signature of plainff with the disputed signature on Ex.D1 proved that Ex.D1 is signed by the plainff. Page 4 of 14 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 12. Thus, it stands proved that the plainff himself was signatory to the wring Ex.D1, whereby his father Cha'ar Singh had sold the suit property to the defendant. Learned counsel of the appellant has not seriously disputed the findings of the trial Court in this regard, i.e. the execuon of Ex.D1 by the father of the appellant in favour of the respondent-defendant. 13. It is further important to note that as per the case of the plainff, in 2009, defendant had taken forcible possession of the suit property. However, in his cross-examinaon, plainff-PW1 candidly admi'ed that electricity meter was got installed in the suit property by defendant – Mahinder 10-12 years back, whereas the suit was filed by him two years back, which means that the electricity connecon was installed by the defendant in the suit property at least 10 years prior to filing of the suit. Since the tesmony of plainff was recorded in October, 2014, it means that the said electricity meter was taken at least in 2002 or prior thereto. Defendant had also produced DW4 Jaipal, an official of the Electricity Department, who corroborated the statement of defendant to the effect that the electricity connecon had been released in the year 1998 in the name of Rajesh, son of defendant - Mahinder in the suit property. 14. Thus, it stands established that the possession of suit property was delivered to the defendant in 1993 aer execuon of Ex.D1. The said fact is also menoned in Ex.D1 that possession had been delivered to the vendee – Mahinder. It is very important to noce that although in the plaint, plainff claimed his forcible dispossession in 2009, but before the First Appellate Court, he took the plea that defendant was in permissive possession of the suit property, without explaining as to in what circumstances and when the permissive possession was given. The said contradictory stand as taken by the plainff is absolutely irreconcilable and so, he cannot be believed in this regard. 15. Now once it is proved that suit property was sold in 1993 by the father of the plainff to the defendant by virtue of an unregistered document and that possession of the defendant is fully established on the suit property p. 5 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 since much prior to the filing of the suit, the enre case revolves around the effect of an unregistered document Ex.D1. Ex.D1 has been wri'en on ₹10/- stamp paper. By virtue of this document, suit property had been sold for consideraon of ₹25,000/- and possession delivered to the vendee, i.e. defendant. Since the document is unregistered, there can be no doubt in holding that defendant on the basis of Ex.D1 cannot claim to have become owner of the suit property because any unregistered document transferring immovable property of more than ₹100/-, cannot convey the tle to the vendee. In Avinash Kumar Chauhan’s case (supra), it has been held by Hon’ble Supreme Court that an under stamped and unregistered sale deed is neither admissible in a suit for specific performance nor for recovery of consideraon money nor for any collateral purpose. 16. No doubt, it is true that Ex.D1 is executed on an insufficiently stamp paper, but it is very important to noce that when Ex.D1 was taken in evidence, no specific objecon was raised on behalf of the plainff that said document was liable to be not admi'ed in evidence due to it being insufficiently stamped. As such, at this stage, plainff-appellant cannot be allowed to raise this plea before this court in second appeal for the first me. 17. One of the contenons raised by learned counsel for the appellant is that since defendant has not performed anything in part performance of Ex.D1, therefore, he is not entled to protect his possession. 18. In Shrimant Shamrao Suryavanshi’s case (supra), it has been held by Hon’ble Supreme Court as under:- “15. The Special Commi'ee's report which is reflected in the aims and objects of the amending Act, 1929 shows that one of the purposes of enacng Secon 53-A was to provide protecon to a transferee who in part- performance of the contract had taken possession of the property even if the limitaon to bring a suit for specific performance has expired. In that view of the ma'er, Secon 53-A is required to be interpreted in the light of the recommendaon of the Special Commi'ee's report and aims, objects contained in the amending Act, 1929 of the Act and specially when Secon p. 6 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 53-A itself does not put any restricon to plea taken in defence by a transferee to protect his possession under Secon 53-A even if the period of limitaon to bring a suit for specific performance has expired. 16. But there are certain condions which are required to be fulfilled if a transferee wants to defend or protect his possession under Secon 53-A of the Act. The necessary condions are: (1) there must be a contract to transfer for consideraon of any immovable property; (2) the contract must be in wring, signed by the transferor, or by someone on his behalf; (3) the wring must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part-performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract. 17. We are, therefore, of the opinion that if the condions enumerated above are complied with, the law of limitaon does not come in the way of a defendant taking plea under Secon 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitaon.” 19. In A. Manicka Mudaliar’s case (supra), the Madras High Court held that the fulfillment of all the six condions as laid down above by Hon’ble Supreme Court in Shrimant Shamrao Suryavanshi’s case (supra) is mandatory. 20. Aer perusing the enre evidence on record of this case, I find that reliance of learned counsel for the appellant on Secon 53-A of the p. 7 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 Transfer of the Property Act, which speaks of the part performance of the contract, is absolutely misplaced. 21. Secon 53A of the Transfer and Property Act deals with part performance, when a person contracts to transfer for consideraon any immoveable property in wring signed by him. It does not speak of the complete sale. Perusal of Ex.D1 dated 05.06.1993 would reveal that father of the plainff had sold the suit property to the defendant for consideraon of ₹25,000/- and had delivered possession to him. Nothing was required to be done on the part of the defendant as per the document (Ex.D1). The only thing is that the said Ex.D1 is an unregistered document and therefore, Court is required to see the effect of non-registraon of document Ex.D1. 22. It has been rightly observed by the Appellate Court that though this document Ex.D1 purports to convey tle in respect of an immovable property valuing more than ₹100/- and so it cannot be taken into considera- on for the purpose of conveying the tle being an unregistered document but it can certainly be looked into for collateral purposes in view of proviso to Secon 49 of the Registraon Act, which reads as under: “Effect of non-registra(on of documents required to be registered.— No document required by secon 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 transacon affecng such property or conferring such power, unless it has been registered: Provided that an unregistered document affecng 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 transac8on not required to be effected by reg- istered instrument.” p. 8 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 23. In “S. Kaladevi v. V.R. Somasundaram and Others” 2011(1) LJR 712, it has been held by Hon’ble Supreme Court that unregistered document can be looked into for collateral purposes, as per Secon 49 of the Registra- on Act. It was held as under: 11. The main provision in Secon 49 provides that any document which is re- quired to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evid- ence of any transacon affecng such property. Proviso, however, would show that an unregistered document affecng immovable property and re- quired 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 perform- ance or as evidence of any collateral transacon 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 admi'ed in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be ad- mi'ed in evidence as an evidence of any collateral transacon 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 Secon 49 of 1908 Act. 12. Recently in the case of K.B. Saha and Sons Private Limited v. Develop- ment Consultant Limited (2008) 8 SCC 564, this Court noced the following statement of Mulla in his Indian Registraon Act, 7th Edion, at page 189:- "......The High Courts of Calcu'a, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Com- missioner's Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registra- on under Secon 17 and which is not admissible for want of regis- traon to prove a gi or mortgage or sale or lease is nevertheless ad- missible to prove the character of the possession of the person who holds under it......" p. 9 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 This Court then culled out the following principles:- "1. A document required to be registered, if unregistered is not admissible into evidence under Secon 49 of the Registraon Act. 2. Such unregistered document can however be used as an evidence of col- lateral purpose as provided in the proviso to Secon 49 of the Registraon Act. 3. A collateral transacon must be independent of, or divisible from, the transacon to effect which the law required registraon. 4. A collateral transacon must be a transacon not itself required to be ef- fected by a registered document, that is, a transacon creang, etc. any right, tle or interest in immovable property of the value of one hundred ru- pees and upwards. 5. If a document is inadmissible in evidence for want of registraon, none of its terms can be admi'ed in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose." To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admi'ed in evidence as evidence of a contract in a suit for specific performance. 24. It is, thus, clear from the legal posion as above that though an unregistered document is not admissible into evidence, but it can be used as an evidence for collateral purpose as provided in the proviso to Secon 49 of the Registraon Act. The collateral transacon must be independent of, or di- visible from, the transacon to effect which, the law required registraon. Thus, a collateral transacon must be a transacon not itself required to be effected by a registered document, i.e., a transacon creang, etc. any right, tle or interest in immovable property of the value of one hundred rupees and upwards. 25. Since in order to deliver possession of immovable property, the document is not required to be registered as per law, therefore, an unregis- tered sale deed Ex.D1 can be taken into consideraon for collateral purpose i.e., delivery of possession. In these facts and circumstances, the Appellate Court did not commit any error in coming to the conclusion that document p. 10 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 Ex.D1, could have been looked into for collateral purposes in view of proviso to Secon 49 of the Registraon Act. 26. Apart from above, in “Ude Singh and Ors. v. Ram Chander” 2009 (1) RCR (Civil) 41, it has been held by this Court that plainff is estopped from reclaiming possession on the ground that there was no valid sale deed, when sale deed was an unregistered receipt. It was also held that no tle could be conferred on the basis of such an unregistered deed but Secon 115 of the Evidence Act estopped the plainff from claiming possession in lieu thereof. 27. Besides above, this Court further finds that plea of the defendant-respondent to have become owner of the suit property by way of adverse possession, has been wrongly negated by the Courts below. 28.1 In “Utha Moidu Haji Vs. Kuningarath Kunhabdulla”(SC) 2006 (14) Scale 156, it has been held by Hon'ble Supreme Court that when a person enters into possession of land under void or voidable transacon, his possession becomes adverse from the date, he comes into possession and that starng point of limitaon of the adverse possession is, when he enters into possession under such a void or voidable transacon. 28.2 In the above case before Hon'ble Supreme Court, defendants No.2 to 8 sold land in dispute vide registered sale deed dated 30.08.1963 not only on their behalf but also on behalf of the minor child (plainff), in favour of X. Plainff a'ained majority on 30.07.1974 and filed the suit for seAng aside the sale deed on 18.03.1981. Hon'ble Supreme Court held that plainff would be deemed to have knowledge about the execuon of the sale deed on his a'aining majority, as soon as he pleaded and proved that his case comes within the purview of the excepon contained in the provisions of Limitaon Act. The period of limitaon would be either three years from the date of a'aining majority by the plainff or 12 years from the date of execuon of sale deed. As plainff had filed the suit aer sleeping for six years over his right to sue, the suit was held to be barred by Arcle 60 (a) of the Limitaon Act. Page 11 of 14 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 29. In the present case, as defendant started claiming ownership of suit property on the basis of unregistered sale deed dated 05.06.1993 (Ex.D1) and the said document is found to be void being unregistered on account of the fact that it purports to create tle in respect of an immovable property of value more than ₹100/-, therefore, the possession of the defendant became adverse from the very date of execuon of this document, in view of the legal posion explained in Utha Moidu Hajii’s case (supra). Said possession was open, connuous and uninterrupted and became hosle to the true owner i.e., father of plainff since 1993 upon execuon of Ex.D1 and then to the knowledge of the plainff aer the death of his father in 1998, as defendant had started claiming to be owner of the suit property on basis of Ex.D1, an unregistered document. 30. In case a suit is filed on the basis of inheritance, defendant can set up a plea of adverse possession. In such a case, suit is to be filed within 12 years and the me begins to run, when the possession of the defendant becomes adverse to the plainff, as per Arcle 65 of the Schedule to the Limitaon Act, 1963. Reliance in this regard can be placed upon Mohinder Singh (died) and Rep. by his LRs and another Vs. Kashmira Singh 1985 PLJ 82, wherein it was held by a Division Bench of this High Court as under:- “Aer hearing the learned counsel for the pares, I find force in the contenon of the learned counsel for the respondent. It is well established principle of law that inheritance does not remain in abeyance and the heirs aer the death of the last male holder succeed to the property of the deceased in accordance with law. Kashmira Singh, being the son of Niranjan Singh deceased, was entled to 1/3rd share in the land in dispute. Aer the death of Niranjan Singh, he was not required to file any suit for possession on the basis of inheritance. He had become full owner of his share in the property on the death of the last male holder. For establishing his right as an heir, he was not required to file a suit. However, a situaon may arise when the heir is not in possession of the property inherited. In that event a suit for possession may have to be filed and on contest the same may fail on the defendant proving that he has perfected his tle by adverse possession. It is p. 12 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 such type of suit which is governed by the provisions of Arcle 65 of the Limitaon Act.” 31. In Amar Chandra Vs. Kamla Devi and another, 2015 (51) RCR (Civil) 769, it has been held by Allahabad High Court that on the issue of restoraon of possession, limitaon would be reckoned from the date, one is dispossessed or when the defendants' possession become adverse. 32. Similarly, in Qadir Bux v. Ramchand and others, AIR 1970 Allahabad 289, the High Court has held that in order to a'ract Arcle 65, if a person has got possession even if under a void sale, his possession would be adverse to the real owner and by possessing for more than 12 years, he acquires tle by adverse possession. Any acon against him by real owner has to be filed within 12 years of such possession, otherwise suit for possession would be barred by limitaon. For the purpose of a declaraon, limitaon commences from the date of cause of acon. Similarly, for the purpose of restoraon of possession, limitaon would commence from the date from which one is dispossessed or the defendant's possession becomes adverse. 33. In the present case, as it has been found that defendant is in possession since 1993 by virtue of an unregistered document (Ex.D1), which is a void document, as such, his possession is hosle ever since then. His possession has remained peaceful, open, hosle and connuous to the knowledge of the true owner, i.e. father of plainff and then plainff, who had inherited the property from his father Cha'ar Singh. Said possession has matured into the ownership of the defendant aer the expiry of statutory period of 12 years of limitaon and as such, the suit filed by the plainff in 2010 is clearly barred by limitaon. 34. Based upon the enre discussion as above, this Court does not find any illegality and perversity in the findings recorded by the Courts below, but at the same me, it is added that defendant-respondent had become owner of the suit property by way of adverse possession. Page 13 of 14 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order RSA No.2733 of 2022 (O&M) 2025:PHHC:014238 35. Consequently, holding the present appeal to be devoid of any merit, the same is hereby dismissed. January 30, 2025 Sarita (DEEPAK GUPTA) JUDGE Whether speaking/reasoned? Yes Whether reportable? Yes p. 14 Sarita Rani 2025.01.30 17:59 I attest to the accuracy of this document/order