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Judgment
Heard Mr. C. K. S. Baruah, the learned counsel for the appellants. Also heard Mr. N. Hoque, the learned counsel for the respondent.
The present appellants are the defendants in Title suit No.153/2004 filed by theplaintiff/respondent for declaration of her right, title, interest and
recovery of possession of the suit land. The plaintiff’s suit in brief is that 2 bighas 4 kathas 16 lechas of land, covered by Dag No.755 under Patta
No.304 of village Musalmangaon under mouza-Chenga in the district of Barpeta stood in the name of the plaintiff/respondent. The husband of the
plaintiff/respondent, late Muslem Ali and the one Moulbi Sher Ali were brothers. The said Moulbi Sher Ali is the brother of the husband of the
plaintiff/respondent Muslem Ali. Muslem Ali died leaving behind the present plaintiff/respondent and two daughters. They were married. After the
marriage of the daughters, the plaintiff/respondent sold the basti land covered by Dag No.759 measuring 2 kathas 6 lechas by way of registered sale
deed No.1937/99 (Exhibit ‘Ga’). After selling her homestead land, i.e., 2 kathas 6 lechas, the plaintiff/respondent started living at Barpeta town
under the care of her daughters. The suit land which is an agricultural one was cultivated by her son-in-law Anowar Hussain on crop sharing basis.
The defendants/appellants dispossessed her from the cultivated land on 16.02.2000 and though she requested to vacate the suit land they failed
following which the suit was filed.
The defendants/appellants filed their written statement along with the counter claim.It is the defence and the counter claim that late Muslem Ali and
late defendant No.1, Moulbi Sher Ali were own brothers. After the death of the husband of the plaintiff/respondent and after giving marriage to her
daughters on 09.06.1999 the plaintiff/respondent sold the suit land measuring 2 bighas 4 kathas 16 lechas to the defendants/appellants at Rs.58,000.00
by executing a Katcha deed (Exhibit-Kha). On 03.08.1999, the basti land measuring 2 kathas 6 lechas were sold by the plaintiff/respondent as
referred hereinabove. The said Katcha deed, Exhibit-Kha was executed on the promise that the same would be registered by the plaintiff/respondent
after obtaining necessary permission. On 25.07.1999, the plaintiff/respondent delivered possession of the suit land to the defendants/appellants in
presence of village people. As the plaintiff/respondent sold the suit land to the defendants/appellants at a sum of Rs.58,000.00 and delivered the
possession to them, so she lost right, title and interest over the suit land. Another suit was preferred by the plaintiff/respondent bearing Title Suit
No.62/02 against the defendants/appellants for the same cause of action which was dismissed for default and as such the suit is barred by resjudicata.
In the counter claim the defendants/appellants sought for specific performance of contract by way of execution of registered sale deed with respect to
the suit land which is covered by the Katcha deed, Exhibit-Kha.
The plaintiff/respondent filed her written statement against the counter claim therebydenying that she received Rs.58,000.00 and sold the suit land to
the defendants/appellants by executing the Katcha deed.
On the basis of the pleadings of the parties, the learned trial court framed thefollowing issues:
Whether there is cause of action for the suit?
Whether the present suit is barred by the principle of res-judicata?
Whether the plaintiff has right, title and interest on the suit land?
Whether the defendant has dispossessed the plaintiff from the suit land?
Whether the defendant has right, title and interest on the suit land?
Whether the plaintiff is entitled for the decree as prayed for in the suit?
Whether the defendants are entitled for the decree as prayed for in the counter claim?
What other reliefs the parties are entitled to?
The learned trial court vide its judgment dated 02.03.2006 passed in Title SuitNo.153/2004 decreed the suit of the plaintiff/respondent but dismissed
the counter claim. In the suit the plaintiff side examined three witnesses including herself as the PW1 and on the other hand, the defendants/appellants
also adduced three witnesses and Salim Khan deposed as DW1 and the writer of Exhibit Kha, Mazibur Rahman as DW3 and another one Md.
Makshed Ali as DW2.
Being aggrieved by the said judgment dismissing the counter claim, thedefendants/appellants preferred Title Appeal No.17/2006 in the learned Court
of the Civil Judge, Barpeta which was also dismissed vide judgment and decree dated 30.11.2006. Thereafter the present second appeal was
preferred and admitted on 15.06.2007 on the following substantial question of law:
(i) Whether the learned courts below committed illegality in decreeing the respondent/plaintiff’s suit and dismissing the counter claim of the
appellants/defendants without considering the protection of their possession of the suit land available under the doctrine of part performance as
contained in Section 53 A of the Transfer of Property Act, 1882?
The learned First Appellate Court held that the suit is not barred under the principle ofres-judicata. As against the defence plea in the counter claim
of the defendants/appellants though claimed the suit land to be purchased but the sale deed (Exhibit-Kha) was not registered inasmuch as the
consideration of the said sale transaction has been shown as Rs.58,000.00 and under Section 54 of the Transfer of Property Act, the said sale deed
requires to be registered and having not done so, the learned First Appellate Court answered the Issue No.5 in the negative thereby holding that the
defendants/appellants have no right, title and interest over the suit land. Further, the learned First Appellate Court considered the plea of the
defendants/appellants that the plaintiff/respondent entered into an agreement to sell the suit land after obtaining permission from the Revenue
Authority which was denied by the plaintiff/respondent in toto. It came to the finding that the defendants/appellants failed to prove that the
plaintiff/respondent agreed to sell the suit land to them. Relying the Exhibit-1, i.e., the copy of the jamabandi, the learned First Appellate Court held
that the plaintiff/respondent has the right, title and interest over the suit land and further held that the defendants/appellants cannot get any benefit by
virtue of the Exhibit-Ka (sic which ought be Exhibit-Kha) since the same is an unregistered deed. Accordingly, the learned First Appellate Court
upheld the findings of the learned trial court.
Mr. Baruah submits that the learned court below held that the Exhibit-Kha, being notregistered as required under the Transfer of Property Act and
under the Registration Act, 1908 ought to have considered the same as an agreement for sale in view of the proviso of Section 49 of the Registration
Act, 1908. It is the submission of Mr. Baruah that the learned court below if, considered the said proviso of section 49 of the Registration Act and the
relief sought which is for specific performance of contract of the said agreement for sale, it ought to have given the benefit under Section 53 (A) of
the Transfer of Property Act inasmuch as the defendants/plaintiffs paid a sum of Rs.58,000.00 and in performance of the said contract for sale, the
defendants/appellants were delivered possession of the suit land by none other than the plaintiff/respondent. Having not done so, the learned court
below failed to adjudicate the counter claim as per law.
Mr. Hoque, on the other hand, submits that on perusal of Exhibit-Kha it is very muchapparent and clear that the intent expressed therein if the
same is taken into consideration to be proved is a sale deed which is admittedly unregistered. The learned court below held that as Section 54 of the
Transfer of Property Act requires registration of the sale deed of any sale of a plot of land of value above Rs.100.00, under such circumstances, the
sale cannot be held to be a valid one. As such Mr. Hoque sought for dismissal of this second appeal.
Considered the submission of the learned counsel. The plaintiff/respondent filed a suitfor declaration of her right, title and interest over the suit land
which forms the subject matter of the alleged unregistered sale deed, Exhibit-Kha. The learned court below considered the provisions of Section 54 of
the Transfer of Property Act and Section 17 (1) of the Registration Act, 1908 and came to the conclusion that the said sale transaction is not valid
which in my opinion is correct. The learned court below also took note of the pleadings of the parties wherein the plaintiff/respondent denied execution
of the said Exhibit-Kha nor she received Rs.58,000.00 as the total consideration. She denied and disputed that she delivered possession of the suit land
after execution of the said Exhibit-Kha. Under such circumstances, the defendants/appellants in order to get relief of counter claim or the benefit
under Section 53 (A) of the Transfer of Property Act ought to have proved the execution of the Exhibit-Kha, i.e. the Katcha deed. In the cross-
examination of PW1 she has deposed that she did not sell land to Salim. She also stated that a village ‘mel’ was called wherein the DW1 stated
that she received Rs.58,000.00 and thereafter the defendants/appellants started possessing the land. On the face of such denial Salim Khan, one of the
defendants/appellants as DW1 stated that he has not called any of the witnesses named in Exhibit-Kha. He has admitted overwriting the figure of
Rs.58,000.00. DW2, one of the persons who was present in the village ‘mel’ deposed that Exhibit-Kha does not contain any signature of
plaintiff respondent and there is overwriting of the figure of Rs.58,000.00 and there is no explanation with respect to the said overwriting in the deed
itself. The DW3 is the writer of the ExhibitKha. He also admitted the fact of overwriting in the said Exhibit-Kha without any explanation.
12.    Having considered the evidence on record it is seen that the defendants/appellants as the counter claimants failed to establish the fact of
execution of the said Exhibit-Kha on the basis of which they have claimed the decree for specific performance of contract for sale. Not only that, the
fact of overwriting in the said Exhibit-Kha could not be explained by the defendants/appellants which goes to support the stand of the
plaintiff/respondent that she did not receive any sum of Rs.58,000.00. Accordingly, in my opinion the said Exhibit-Kha is not proved that the same was
executed by the plaintiff/respondent. Section 53 (A) of the Transfer of Property Act requires in the mandatory form, a written up agreement in order
to get the protection by the proposed purchaser of a plot of land. Here in this case, the fact that Exhibit-Kha is a valid written agreement is not proved.
Under such circumstances the defendants/appellants are not entitled to the protection under Section 53 (A) of the Transfer of Property Act.
Accordingly, the substantial question of law is decided against the defendants/appellants.
The second appeal stands dismissed. No cost.
Send back the LCR.