Amar Nath vs Rajani Devi

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment dated 22nd June, 2013, passed by learned Additional District Judge, Ghumarwin, District Bilaspur in Civil Misc. Appeal No. 5-14 of 2011, whereby the appeal has been allowed and the interim order dated 10th June, 2011, passed by learned Civil Judge (Junior Division), Court No. 2, Ghumarwin, in C.M.A. No. 86/6 of 2010 in Civil Suit No. 74/1 of 2011 in favour of the petitioner-plaintiff, has been quashed.

The subject matter of dispute in the present lis is the land entered in Khata/Khatauni No. 46/46, comprised in Khasra No. 7, measuring 0.16 bighas, which is 1/10th share of the total land measuring 8.4 bighas, situated in village Soi, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur. The petitioner-plaintiff claims that respondent-defendant No. 1 Rattan Lal agreed to sell the same for a sum of Rs. 5,60,000/- in his favour. The agreement was also executed in this regard on 1st April, 2008 and on part payment of sale consideration he was put in possession of the suit land. Respondent-defendant No. 3 Ram Chand allegedly claims himself to be the General Power of Attorney of respondent-defendant No. 1, subsequently sold the suit land to respondent-defendant No. 2 Smt. Soma Devi none else but his own wife, fraudulently. The sale of the suit land by defendant No. 3 in favour of defendant No. 2 has, therefore, been sought to be declared as illegal, null and void and not binding upon the plaintiff.

In an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure [CMA No. 86/6 of 2010] filed alongwith the suit, learned trial Court on appreciation of the pleadings and the evidence available on record, directed the parties to maintain status quo qua the nature and possession of the suit land with a further direction not to alienate the same during the pendency of the suit. Learned lower appellate Court on consideration of the provisions contained under the Registration Act and other related laws (amendment Act 2001) vide which provisions of Registration Act, Transfer of Property Act and Indian Stamp Act were amended and also law laid down by the Apex Court, has held that the agreement dated 1st April, 2008 executed by defendant No. 1 in favour of the plaintiff being unregistered creates no right, title or interest qua the suit land in favour of the petitioner-plaintiff and as such no interim relief could have been granted. The order passed by learned trial Court has, therefore, been quashed and set aside.

Legality and validity of the impugned order has been questioned on several grounds, however, mainly that in view of the admission on the part of defendant No. 1, vide agreement dated 1st April, 2008 he agreed to sell the suit land to the petitioner-plaintiff for consideration and also that he delivered the possession thereof to the petitioner. Therefore, the order otherwise is detailed and well reasoned passed by the trial Court should have not been quashed and set aside.

Be it stated here that the amendment in the Registration Act makes it crystal clear that a document which conveys some property to third person should be registered one and the transferee can seek the protection as envisaged under Section 53A of the Transfer of Property Act only if the document is registered one. In case the document is not registered one, the transferee is not entitled to seek the protection of Section 53A of the Transfer of Property Act. Similar is the ratio of the case law relied upon by learned lower appellate Court in the judgment under challenge in this petition.

There cannot be any quarrel to such legal provisions and also the law laid down by Apex Court, however, at this stage, the claims and counter-claims laid down by the parties on both sides qua their title in the suit land are not to be adjudicated upon and rather it is the question of protection being sought by the petitioner-plaintiff in the interim only engaged the attention of the Court. In the interim, the petitioner-plaintiff has sought a direction to restrain the respondents from causing interference in any manner whatsoever in the suit land or dispossessing him therefrom during the pendency of the suit. The written statement and reply to the application filed by respondent-defendant No. 1, who, as a matter of fact, is the owner of the suit land, reveals that he has admitted the execution of agreement on 1st April, 2008 in favour of the petitioner-plaintiff and thereby he agreed to sell the suit land in a sum of Rs. 4,50,000/-. Not only this, he has also delivered the possession of the suit land to the petitioner-plaintiff on receipt of part payment towards the sale consideration. The agreement, no doubt, is unregistered. At this stage, it is not to be seen that the same creates any right, title or interest in favour of the petitioner-plaintiff or not. The fact, however, remains that prima facie he is in possession of the suit land and further sale thereof by respondent No. 3 in favour of respondent No. 2 has been assailed by him in the main suit being illegal, null and void. Respondent-defendant No. 1 may have mortgaged the land with respondent No. 3 and the petitioner-plaintiff seems to be in the knowledge thereof as is apparent from the perusal of the plaint. The record available at this stage, however, reveals that it is respondent-defendant No. 1 who has to get the entry of mortgage removed from the revenue record most probably on payment of Rs. 1,10,000/-, i.e., the mortgaged money to respondent-defendant No. 3. Respondent-defendant No. 1 having executed General Power of Attorney in favour of respondent-defendant No. 3 in respect of the suit land in the manner as claimed, needs proof which can only be produced during the course of further trial in the suit, however, the sale of the suit land by respondent-defendant No. 3 in favour of respondent-defendant No. 2, none else but his own wife on the basis of so called General Power of Attorney casts cloud qua its authenticity and genuineness. It is in these circumstances and coupled with the factum of the petitioner-plaintiff seems to be in possession of the suit land, the only order in the interim, would have been a direction to the parties to maintain status quo qua the nature and possession of the suit land. The trial Court has passed such order and nothing beyond that, which cannot be said to be illegal at this stage because the parties have to produce evidence in the suit in support of their respective claims and the suit has to be decided thereafter on appreciation of the evidence so produced.

Above all, it is well settled at this stage that even a trespasser cannot be evicted from any land save and except by due process of law. Lower appellate Court has decided the case in a manner that the suit is being disposed of finally. Therefore, leaving the legal question open to be considered and decided at an appropriate stage in the main suit, the order under challenge is quashed and set aside and that passed by learned trial Court in C.M.A. No. 86/6 of 2010 on 10th June, 2011 affirmed.

The petition, therefore, succeeds and is accordingly allowed. In the nature of the dispute in the main suit, there shall, however, be a direction to the trial Court to decide the same expeditiously, of course with effective cooperation and assistance of parties on both sides.

With the above observations, the petition stands disposed of finally so also all pending application(s), if any.