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2025 DAILYLAW 640 (CHH)

Ashok Kumar Ubrani, S/o. Sevak Ram v. Rameshwar Prasad Tiwari, (Dead), Legal Representatives Rajendra Prasad Tiwari

2025-11-06

Narendra Kumar Vyas

body2025
JUDGMENT : NARENDRA KUMAR VYAS, J. 1. Heard on admission. 2. This appeal has been preferred by the defendant under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') questioning the legality and propriety of the judgment and decree dated 10.10.2014 passed by the learned Sixth Additional District Judge, Bilaspur (C.G.) in Civil Appeal No.17-A/2014, whereby the learned first appellate Court has dismissed the appeal filed by the defendants and affirmed the judgment and decree dated 19.03.2007 passed by learned Third Civil Judge, Class-II, Bilaspur District – Bilaspur (C.G.) in Civil Suit No. 207-A/2006. 3. The parties to this appeal shall be referred to hereinafter as per their description in the Civil Suit before the learned trial Court. 4. Brief facts:- A) The plaintiff filed a suit before the Third Civil Judge, Class-II, Bilaspur District – Bilaspur on 31.03.2000 for declaration of title and permanent injunction against the Defendant No.1 alleging that he is the owner and is in possession of Khasra No. 450, area of 0.12 acres, located at village Torwa, Bilaspur. The plaintiff's father purchased the land in 1934 vide unregistered sale deed dated 14.12.1934 from Sukhram and Savitri Bai as sale consideration was valued less than Rs.100/-. It is also the case of the plaintiff that he is in possession of the land since 1934 i.e. from the date of unregistered sale deed executed by his father and his name has also been registered in the revenue records. The plaintiff's house is built on 0.04 acres of the said land, and the remaining 0.08 acres is vacant (Hereinafter referred to as the ‘Suit Property’). Defendant No.1 is attempting to illegally occupy the suit land (vacant 0.08 acres of land). The plaintiff submitted complaint before the Tehsildar and Commissioner, Bilaspur. When the plaintiff began construction of a boundary wall to protect the land, defendant No. 1 threatened to stop the construction. It is also the case of the plaintiff that Defendant No. 1 in collusion with revenue officials, without giving notice to the plaintiff, has prepared a fake demarcation document. It is also the case of the plaintiff that as per the judgment and decree dated 19.02.1937 in Civil Suit No. 243-A/1935 in case of Bhagwandhin vs. Ramdhin, it has been held that area of Khasra No. 450 is 0.12 Acres. It is also the case of the plaintiff that as per the judgment and decree dated 19.02.1937 in Civil Suit No. 243-A/1935 in case of Bhagwandhin vs. Ramdhin, it has been held that area of Khasra No. 450 is 0.12 Acres. On the above grounds, the deceased plaintiff prayed for declaration of title over the suit property and a permanent injunction against the defendants. B)Defendant No.1 filed written statement denying the allegations made in the plaint mainly contending that the area of the land in Khasra No. 450 is not 0.12 acres, but is only 0.04 acres, on which the plaintiff's house is located. Khasra No. 453/1 and 454/1, an area of 0.51 acres, Mauja Torwa, whose actual area is 0.34 acres, is part of the diverted land Sheet No. 7, Block 13, Plot No. 135, an area of 14,675 square feet wherein after approval from the Commissioner, he is carrying out construction work. It has also been contended that the demarcation has been done by the competent authority, which clearly identifies the suit land as part of Khasra No. 453/1 and 454/1, therefore, demarcation report cannot be disputed. The defendant has legal ownership and possession over the suit land through a registered deed dated 20.10.1970 in his favour. The plaintiff cannot be considered to have right and possession over 0.12 acres of land merely because 0.12 decimals was wrongly written in the plaintiff's deed and 0.12 acres was wrongly recorded in the revenue documents. The plaintiff had purchased only 0.04 acres of land. The remaining 0.08 acres of land being fallow land, has become the property of the Chhatlal Malgujar as per the Misal Bandobast (Land Settlement 1929-30) from whom he has purchased the suit land. The plaintiff is trying to grab the land illegally looking to the price of the land. On the above grounds prayed for dismissal of the suit. 5. On the pleadings of the parties, learned trial Court framed as many as 7 issues. The plaintiff is trying to grab the land illegally looking to the price of the land. On the above grounds prayed for dismissal of the suit. 5. On the pleadings of the parties, learned trial Court framed as many as 7 issues. The plaintiff to substantiate his submission examined Rameshwar as PW/1, M.D. Siddique as PW/2, Ganesh Das as PW/3, Ramchandra Gegwani as PW/4 and exhibited documents namely Order dated 19.02.1937 passed in 143-A/1935 as Ex.P/1, Misal 1929-30 as Ex.P/2, Order dated 16.04.1985 passed by Superintendent Land Record as Ex.P/3, B-1 1954-95 as Ex.P/4, Police Report as Ex.P/5, Police Complaint as Ex.P/6, Memo from Commissioner to Tahsildar as Ex.P/7, Receipt of purchase of construction material as Ex.P/8, Cash Memo as Ex.P/9, memo dated 03.10.1997 by Commissioner, Land Record and Settlement, Gwalior as Ex.P/10 and sale deed dated 14.12.1934 as Ex.P/11. 6. The Defendant No. 1 examined Hiralal as DW/1, Laxman Das as DW/2, Hawasram as DW/3 and exhibited documents namely Sale deed dated 20.10.1970 as Ex.D/1, Record of Rights to Ashok Kumar as Ex.D/2, Diversion paper as Ex.D/3, Khasra Panchasala 1997-98 as Ex.D/4, permission for construction Ex.D/5, Approval from Joint Director, Town and Country Planning as Ex.D/6, Memo of Revenue Inspector as Ex.D/7 to 9, Panchnama dated 30.08.1998 as Ex.D/10, Certificate by Patwari dated 03.07.1999 as Ex.D/11, Map as Ex.D/12, letter dated 10.02.2000 as Ex.D/13, Reminder letter from Tahsildar to Thana Incharge dated 05.02.2000 as Ex.D/14, Site Inspection memo dated 29.02.2000 as Ex.D/15, Letter of Commissioner Bilaspur dated 03.03.2000 as Ex.D/16, Memo of Tahsildar to Thana Incharge dated 22.03.2000 as Ex.D/17, order-sheet of the Tahsildar from 03.02.2000 to 16.03.2000 as Ex.D/18, letter to Tahsildar dated 03.02.2000 as Ex.D/19, order dated 03.02.2000 as Ex.D/20, letter dated 05.02.200 as Ex.D/21, application dated 05.02.2000 as Ex.D/22, Affidavit of Ashok Kumar before Tahsildar as Ex.D/23, Approval of Commissioner as Ex.D/24, Receipts of Municipal Corporation as ExD/25 to Ex.D/29. 7. Learned trial Court considering the factual matrix of the case recorded its finding that the plaintiff is the title holder of the area 0.12 Acres in Khasra No. 450 in which at 0.04 Acre house of the plaintiff has been constructed and remaining 0.08 Acre is open land and restrained the defendant No. 1 from peaceful possession of the plaintiff. Learned trial Court considering the factual matrix of the case recorded its finding that the plaintiff is the title holder of the area 0.12 Acres in Khasra No. 450 in which at 0.04 Acre house of the plaintiff has been constructed and remaining 0.08 Acre is open land and restrained the defendant No. 1 from peaceful possession of the plaintiff. Learned trial Court has also recorded its finding that the defendant has failed to produce any document to demonstrate that area of Khasra No. 450 is only 0.04 and also recorded its finding that the plaintiff is in peaceful possession over the suit property for more than 12 years therefore, he has acquired the title by way of adverse possession over the suit land, accordingly, decreed the suit in favour of the plaintiff. 8. Being aggrieved with the judgment and decree the Defendant No.1 preferred first appeal under Section 96 of the CPC mainly contending that learned trial Court has committed illegality and irregularity in decreeing the suit on the count that the open land have not been considered part of Khasra No. 453/1 and 454/1 as in the unregistered deed dated 14.12.34 presented by plaintiff the boundaries and measurements of the land purchased by father of the deceased plaintiff has been mentioned. Learned trial Court has also failed to appreciate the sale deed dated 20.10.1970 by which he has purchased the suit land from heirs of Chhattlal and since then he in possession over the suit land. He has also contended that when the plaintiff has admitted that the defendant has made construction over the suit land therefore, his claim for possession under Section 41 is not tenable. On the aforesaid grounds, he prayed for setting aside the judgment and decree passed by the learned trial Court. 9. The plaintiff has also preferred cross appeal against the finding recorded by the learned Trial Court with regard to the finding of the adverse possession over suit land claiming that he owned the title over suit land by virtue of sale deed of the year 1934 not on the count of adverse possession and has prayed for setting aside the finding of the trial Court to this extent. 10.Learned Appellate court has allowed the cross appeal and held that the plaintiff is the title holder of the suit land by virtue of sale deed of the year 1934 and dismissed the appeal filed by the defendant and affirmed the finding of the trial Court by re- appreciating the materials on record. Aggrieved with the judgment and decree, the defendant has preferred present second appeal. 11. Learned counsel for the appellant would submit that learned first appellate Court as well as the learned trial Court has erred in ignoring the registered sale deed of the suit property and the demarcation report submitted by the defendant. Both the Courts below have also erred in declaring the title of the plaintiff over the 0.08 Acre land on adverse possession whereas the land is open land and after receiving proper approval it is appellant who was raising construction. It has also been contended that as per Section 54 of the Transfer of Property Act sale of tangible immovable property of a value less than Rs. 100/- may be made either by registered instrument or by delivery of the property and as per Section 4 of the Transfer of Property Act the chapters and Sections of this Act which relate to contract shall be taken as part of the Indian Contract Act,1872 and Section 54 paragraph 2 and 3, 59, 107 and 123 shall be read as supplement to the Indian Registration Act,1908. Section 54 of the Act is reproduced below:- 54. “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 immovable 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 immovable 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 immovable property takes place when the seller places the buyer, or such personas he directs, in possession of the property. Contract for sale.— A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. Delivery of tangible immovable property takes place when the seller places the buyer, or such personas he directs, in possession of the property. Contract for sale.— A contract for the sale of immovable 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 12. Learned counsel for the appellant would submit that both the courts below erred in relying upon the unregistered sale deed which is inadmissible in the evidence. As such substantial question of law exists and would pray for admission of the appeal. To substantiate his submission he has referred to judgment Hon’ble Supreme Court in case Raghunath and Others vs. Kedarnath { AIR 1969 SC 1316 } and would refer to paragraph 3 which reads as under :- For these decisions have been superseded by subsequent legislation i.e. by the enactment of Act 21 of 1922 which by inserting in section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents in the supplemental list i.e. the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act fall within the scope of section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immoveable property comprised therein, and do not affect any such inmmovable property. We are accordingly of the opinion that Ex. A-26 being unregistered is not admissible in evidence. 13. Learned counsel for the appellant would further submit that since the construction of Section 54 of the Act is involved therefore, this appeal may be admitted. To substantiate this submission he has referred to the judgment of Hon’ble Supreme Court in case of Brijvasi Lal vs. Abdul Haji {2001 (9) SCC 367}. 14. On the other hand learned counsel for State would submit that the judgment and decree passed by the learned courts below are strictly in accordance with law therefore, no substantial question of law can be framed for determination by this Court and would pray for dismissal of the appeal. 15. I have heard learned counsel for the parties and perused the documents with utmost satisfaction. 16. 15. I have heard learned counsel for the parties and perused the documents with utmost satisfaction. 16. The record of the case would clearly demonstrate that both the courts below have taken into consideration the other evidence to record a finding that plaintiff is the title holder of the suit property by taking into consideration the Misal document of the year 1929-30 wherein the name of the plaintiff’s father as title holder has been mentioned, judgment and decree dated 19.02.1937 passed by the Third Civil Judge Class II, Bilaspur wherein it has recorded its finding that the area of the plot No. 450 is 0.12 acre and through unregistered sale deed dated 14.12.1934 executed by Sukhram and his wife Savitri in favour of the plaintiff’s father. The trial Court has also taken into consideration the Ex.P/3 i.e. order dated 16.04.1985 of Superintendent of Land Record wherein the name of the plaintiff has been recorded. The trial Court has also taken into consideration other revenue records which are available before it. On the contrary, the defendant has exhibited the sale deed Ex.D/1 which relates to Khasra No. 453/454 and no revenue record has been placed on record that Khasra No. 450 does not exist and the land of Khasra No. 450 admeasuring 0.08 Acre is part of the land bearing Khasra No. 453/454. The defendant has heavily relied upon the demarcation which was prepared by Revenue Inspector, Bilaspur without any information to the plaintiff on 30.08.1998 therefore, it has no relevancy for deciding the lis between the parties as it has not been done in pursuance of any judicial order. Thus, it is quite vivid that other relevant documents or evidence were made available before the trial Court to record such finding. 17. The submission of the learned counsel for the defendant that as per Section 54 of the Transfer of Property Act the sale of tangible immovable property if is less than Rs.100/- then also as per the Section 4 of the Transfer of Property Act, the Section 54 paragraph 2 and 3 and Section 59, 107 and 123 shall be read as supplement to the Registration Act, 1908. As such, the unregistered sale deed is of no evidentiary value is being considered by this Court. 18. As such, the unregistered sale deed is of no evidentiary value is being considered by this Court. 18. From the perusal of Section 4 of the Act, it is quite vivid that these provisions enumerated in these Sections are supplement to the provisions of Section 54, 59, 107 and 123. These sections relate to Sale of immovable property, Mortgage when to be by assurance, Leases how made and Transfer how effected when the immovable property is gifted. These provisions are supplement to the provisions of the Indian Registration Act which provides that how the documents have to be registered. Since the issue raised pertains to Section 54 of the Act wherein it has been categorically held that sale in case of tangible immovable property of a value less than Rs. 100/- such transfer may be made either by registered instrument or by delivery of the property. It means in one of the conditions, the sale can be made. It is not in dispute that the sale consideration of the suit property was less than Rs. 100/- and possession has already been given therefore, the trial Court has rightly recorded its finding that the plaintiff is owner of the suit property. It is well settled position of law that supplement provisions can not be made redundant to main statute but they are to supplement the same. 19. In Section 54 of the Act itself both the contingencies for tangible property valued less than Rs. 100/- has been defined i.e. either by registered deed or by possession. The High Court of Punjab & Haryana relying upon the judgment of Hon’ble Supreme Court in case of Piara Singh vs. Harbhajan Singh and Others {2006 (142) PunLR 595} has held as under :- “10. A plain reading of Section 54 of the Act would show that if a property is sold for less than one hundred rupees, the sale could be complete by delivery of possession. It looks to be well settled that the possession contemplated by Section 54 of the Act is actual physical possession and it is not sufficient to show that there was constructive or symbolic possession because the words used in the Section are “delivery of tangible immovable property takes place when the seller places the buyer in possession of the property.” Therefore, the buyer has to be in actual possession. The aforementioend provisions came up for consideration of Supreme Court in the case of Brijvasi Lal (supra) and their Lordships observed as under :- 5. On a plain reading in the case of tangible immovable property of a value less than one hundred rupees, transfer may be made 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 immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property,” 20. In the present case, it is not in dispute that plaintiff’s father was in possession of the suit property since 1934 as such, the basic ingredient to complete the sale has already been fulfilled therefore, both the courts below have rightly held that the plaintiff is the title holder of the suit property which is finding of facts and after appreciation of the provisions of law. As such, no substantial of law exists which is sine-quo-non for admission of the Second Appeal. The appeal deserves to be dismissed at the admission stage itself, accordingly, it is dismissed. 21. No order as to costs. 22. A decree be drawn up accordingly.