Dharichhan vs Innar Singh

Sharad Kumar Sharma, J.

This is a defendant's Second Appeal, wherein, he has put challenge to the judgment dated 20th August, 2018, as rendered by the Additional District Judge, Khatima, Udham Singh Nagar in Civil Appeal No. 25 of 2007, Innar Singh Vs. Dharichhan and others, whereby, the appeal preferred by the plaintiff, respondent herein, was allowed and, consequent thereto, the suit for injunction, being Suit No. 164 of 2011, Innar Singh Vs. Dharichhan and others, was decreed.

In the proceedings of the subject matter of dispute which has been in controversy before the Court below constitutes to be the property, which is more particularly defined in the plaint constituting to be Khet No. 281/20, having an area of 0.9710 hectares, situated in Village Sadasadia, Tehsil Khatima, District Udham Singh Nagar, hereinafter to be called as 'the property in dispute'. The plaintiff in the suit has come out with the case that the property, in question, was given to him on lease and he had been placed in possession over the property, in question for last over 33-34 years. His case was that the defendant, taking advantage of the old age of the plaintiff and since he was residing all alone, had threatened him and made efforts to encroach upon the land, in question, and also forced upon him to execute the sale deed, hence, he prayed for a decree of permanent injunction by way of restraint from interference over property. This suit was contested by the defendant who filed the written statement on 14th February, 2012, wherein, in the written statement, the defendant had come out with the case that the plaintiff has got no right over the property, as such, for the reason, that the plaintiff himself has agreed to sell the property, by virtue of a document allegedly executed on 10th June, 1989 and, as a consequence to its execution, it was agreed to sell 6 bigha, 8 bishwas of land in favour of the defendant on a exchange of consideration of Rs.32,000/-. The case of the defendant was that as a consequence to the execution of the said deed, in past performance of so called agreement under Section 53A the possession was also handed over to the defendant and he is in cultivatory possession of the land, in question. Meeting the objection pertaining to the rights being created in favour of the plaintiff, based on the lease deed, the defendant contended that the proceedings for cancellation of patta of the plaintiff under Section 198(4) of Zamindari Abolition Act, 1950, by way of Case No. 51/49 of 2010-11, is pending consideration before the Collector and, in the proceedings aforesaid, for cancellation of patta, a report was called upon, wherein, in the report, it was contended by defendant that it was established that the plaintiff is not in possession of the property, in question, and hence prayed for that the suit may be dismissed.

The learned Trial Court, on considering the rival contentions, by virtue of the judgment dated 16th February, 2017, had dismissed the suit, whereby, although while considering paper No. 11-Ga/1 and 11-Ga/2 to the effect that revenue entry of the property shows it was leased out to the plaintiff and also considering the khatuni 9-Ga and khasra 10-Ga, which was a proof of title led by the plaintiff and also that he was in possession of the property, had yet proceeded to dismiss the suit on the premise that there had been proceedings drawn for cancellation of the patta on basis of complaint which was pending before the Collector on the ground that the plaintiff is said to have been not in possession. This Court is of a considered view that mere, pendency of the proceedings for cancellation of patta can not be a basis or proof to hold that the plaintiff is not in possession, more particularly, when the documentary evidence of title i.e. lease and possession, i.e. khatuni and khasra respectively, as well as the lagan which was on record showed that the plaintiff was in the possession of the property, in question. Documentary evidence cannot be side tracked to be considered by Trial Court, merely on the basis a proceedings of cancellation of patta was pending before Collector.

Even otherwise also, the interpretation given to the proceedings for the cancellation of the patta as drawn before the Collector could not be said to be an appropriate and logical finding recorded by the learned Trial Court for the reasons that once patta stood validly granted under a statute and it exists in the eyes of law, it continues to hold the status of being valid document till it is set aside or cancelled by the competent authority.

Admittedly, in the case in question, when the suit was being considered by the Trial Court, at that that point of time, the proceedings for cancellation of patta, which was initiated malafidely based on complaint was still in progress and the same has not yet been adjudicated upon. Hence, it cannot be said that the plaintiff was not having a valid title on the basis of the patta executed in his favour as the said document continued to have legal status in the eyes of law.

There is another aspect of the matter that even if the pleadings raised by the defendant in the written statement are taken into consideration as they are, the defendant then to is claiming right on the basis of the document dated 10th June, 1989, which is alleged to be a document of transfer of the land, i.e. immovable property, said to have been executed by the plaintiff in his favour.

What is borne out from the record, as well as, from the evidence which was adduced by the defendant himself by producing paper No. 29-Ga/1, i.e. the alleged agreement dated 10th June, 1989, it goes without saying that the said document was merely an agreement and it is a settled preposition of law that merely an agreement much les an unregistered document does not confer any valid enforceable title on defendant.

Furthermore, the said document will not create any legally enforceable right in favour of the defendant for the reason that, admittedly, as per the evidence on record, the said document was neither properly stamped nor was registered before the Sub Registrar, hence, the same could not be read in evidence in view of the provisions contained under Section 54 of the Transfer of Property Act to be read with U.P. Civil Laws Amendment Act, 1976, wherein, the registration of documents, creating right in relation to an immovable property has been made mandatory and such a registration will fall to be mandatory registration under Section 17 of the Indian Registration Act. As such, also the said document cannot be read in evidence in view of Section 49 of the Registration Act to be read with Section 35 of the Stamp Ac,t as not being sufficiently stamped also.

In view of the above, this Court does not find any merit in the Second Appeal nor any such substantial question of law, as pleaded in the Second Appeal, is made out which requires to be answered by this Court.

Consequently, the Second Appeal fails and is accordingly dismissed.

However, there would be no order as to costs.