Bhanu Pratap Choudhary And Ors vs Prema Bai Choudhary

Sanjay K. Agrawal, J

The substantial questions of law involved, formulated and to be answered in the defendants' second appeal are as under:-

"1. Whether the lower Appellate Court was justified in reversing the well reasoned judgment and decree passed by the trial Court by which the suit of the plaintiff was dismissed?

Whether 1/5th share of the rent from the disputed property could be decreed in favour of the plaintiff in absence of any valid title solely on the basis of unregistered panch faisla ?

Whether the suit of the plaintiff for possession of 1/5th share of the disputed property was barred by limitation ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

The plaintiff filed a suit for recovery of ₹ 33,840/- as 1/5th share of the rent from disputed property on the basis of Exs. P-1 and P-2 i.e. panch faisla, which was dismissed by the trial Court, however, it was decreed by the first appellate Court setting aside the judgment and decree of the trial Court, against which, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been framed by this Court, which have been set-out in opening paragraph of this judgment.

Mr.A.K.Prasad, learned counsel for the appellants/defendants, would submit that the first appellate Court has committed grave legal error in overlooking the fact that award i.e. panch faisla (Ex.P-2) is unregistered document and it could not create any title in favour of the plaintiff, as such, the decree granted by the first appellate Court on the basis of unregistered award (panch faisla) dated 24.7.1994 deserves to be set aside.

Raja Sharma, learned counsel for the respondents/defendants, would submit that the impugned judgment and decree passed by the first appellate Court is strictly in accordance with law, as such, the second appeal deserves to be dismissed. He would further submit that the first appellate Court has rightly granted decree in favour of the plaintiff as the said panch faisla (Ex.P-2 followed by Ex.P-1) was acted upon by the parties and could be used as collateral transaction or collateral purpose under proviso to Section 49 of the Registration Act, 1908 (hereinafter called as 'the Act of 1908').

I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

Copies of panch faisla are Exs.P-1 and P-2. Photocopies of panch faisla dated 24.7.94 (Ex.P-2) and dated 12.7.97 (Ex.P-1) have been brought on record. By order dated 7.8.2001, the trial Court permitted the plaintiff to adduce secondary evidence of panch faisla (Exs.P-1 and P-2), thereafter, the said panch faisla was marked as Exhibits P-1 and P-2 in evidence by plaintiff- Prema Bai Choudhary on 27th October, 2001. The defendants did not take any objection with regard to its registration except that original panch faisla (Exs.P-1 and P-2) have not been filed and thereafter it has been allowed to be exhibited. Vide Ex.P-1 and Ex.P-2 panch faisla, it has been agreed that rent to be received from the shop situated at Indira/Bombay Market and it will be divided in 5 shares and 1 share of rent shall be paid to Anand Lal Choudhary. The plaintiff is widow of Anand Lal Choudhary and has claimed rent after death of Anand Lal Choudhary. In fact, Ex.P-2 only directs payment of 1/5th share of rent to Anand Lal Choudhary, which the plaintiff is claiming by arbitral award (Ex.P-1) effective from 1st August, 1994. It does not effect or purport to effect right, title or interest in a immovable property of value exceeding rupees 100. It only entitles the plaintiff a right to receive 1/5th share of rent from the shop in question and therefore, it was not required to be registered under Section 17(1) of the Act of 1908. Likewise, the plaintiff claimed rent from April, 1995 to March, 1998 by filing suit on 16.4.98 for the period of three years and therefore, it was not barred by limitation, as such, the finding recorded by the first appellate Court granting decree for recovery of rent to the extent of 1/5th share on the basis of unregistered panch faisla (Ex.P-2) is strictly in accordance with law. Likewise, the first appellate Court is further justified in holding that the suit is not barred by limitation. I do not find any perversity or illegality in the said finding. The substantial questions of law is answered in favour of the plaintiff and against the defendants.

Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s).

A decree be drawn up accordingly.