Iqbal Mohammed Bijili vs K. Arumugam and Others

Prabha Sridevan, J.—The second appeal was admitted on 13.12.2004 on the following substantial questions of Law:

Whether the findings of the Courts below are vitiated by its failure to consider the absence of any evidence on the side of the respondents 1 and

2 regarding possession except the recitals under Exs.A-3 and A-4 which came to be registered pursuant to the judgment and decree passed in

O.S. Nos. 358 and 360 of 1991 without notice to the appellant ?

Whether the Courts below are right in not considering the question on the indisputable fact that the suit is barred under Order 2, Rule 2 of CPC

especially when the cause of action in the present suit is the same as that of in the previous suits in O.S. Nos. 358 and 360 of 1991 ?

When the application for interim order was moved, both the counsel submitted that they would argue the main second appeal itself and therefore

the second appeal was heard.

The suit was filed by respondents 1 and 2 herein. The case of the respondents 1 and 2/plaintiffs is as follows: Respondents 1 and 2 are brothers.

According to them, the appellant entered into agreement for sale on 21.4.1989, marked as Exs. A-1 and A-2, agreeing to sell the suit property to

them and pursuant to the said agreement, Exs.A-3 and A-4 sale deeds were registered on 3.12.1989 and mutation of records were also effected

and thereupon they were in enjoyment of the suit property. It is necessary for this case to extract the actual recitals in the plaint.

According to respondents 1 and 2, the title was handed over by the appellant to them and since, the appellant, who was the first defendant in the

suit, interfered with their enjoyment on 25.4.98, they gave a police complaint, but the appellant absconded and again interfered with their

enjoyment with the assistance of rowdy elements on 14.6.98 and therefore, the suit was filed on 15.6.98.

The appellant denied all the averments made in the plaint. The appellant specifically stated that the words has been deliberately introduced to

show as if they were in enjoyment and possession of the suit property. The appellant denied execution of the sale deed and also prayed dismissal

of the suit on the ground of ""misjoinder of cause of action"". More importantly, the appellant referred to the earlier suits between the parties.

According to the appellant, the two documents Exs. A-3 and A-4 were never executed by him, and they were concocted by the respondents 1

and 2 and thereafter petitions were filed before the Joint Registrar, Tirunelveli for compulsory registration and that the applications were dismissed

by the Joint Registrar and thereafter the first respondent, filed O.S. No. 360 of 1991, and the second respondent filed O.S. No. 258 of 1991 u/s

77 of the Registration Act. This was decreed by the learned Sub Judge Tirunelveli. Against that the appellant preferred A.S. Nos. 132 and 133 of

1996. The said appeals had been dismissed for default on 12.2.98. The appellant has preferred an application to restore the appeals and in these

circumstances, the respondents 1 and 2 cannot maintain the suit. The trial Court came to the conclusion that the respondents 1 and 2 have proved

their case and this was confirmed in appeal by the first appellant Court.

The learned counsel for the appellant submitted that the suit being one for injunction, it is for the respondents 1 and 2/plaintiffs to prove their

possession. According to the averments in Exs. A-1 and A-2, possession was agreed to be given only on the date of registration and if that is so,

the respondents 1 and 2 cannot claim that they have been put in possession on 3.12.1989, i.e., the date of the alleged execution of Exs. A-3 and

A-4, since they were registered pursuant to the decree passed in the statutory suit filed u/s 77 of the Registration Act.

The learned counsel would submit that the respondents 1 and 2, having totally suppressed the previous litigation, are not entitled to the

consequential relief of injunction. Further it was claimed that when the respondents filed O.S. Nos. 360 and 258 of 1991 for registration of the

document, they ought to have asked for possession and to get over the lapse they have now filed this suit as if they were in possession and by

obtaining the decree, they are trying to throw out the person who has always been in possession, namely the appellant. The learned counsel also

submitted that the provisions of Section 77 of the Registration Act, which gives the time limit, have been totally violated and viewed from any angle,

the suit ought to have been dismissed.

The learned counsel for the respondents 1 and 2 would submit that there was no question of suppression, since a far as the suit for injunction is

concerned, what is relevant is the date of possession and the date of interference of the possession and therefore, it is not necessary to refer to the

earlier cases. However, it is submitted that immediately after the registration, mutation was effected. He further submitted that the Courts below

concurred over this proof of possession on the date of suit, for which there is documentary evidence, and the suit was rightly decreed.

As regards the presentation of the document beyond time contrary to the provisions of the Registration Act, the learned counsel would submit

that the Registrar would not have registered the documents if it is presented beyond the time and the appellant having executed the sale deed is

now trying to harass the respondents 1 and 2 by claiming that he was in possession even after the sale deeds were executed. The learned counsel

pointed out to the endorsement made by the appellant:

Endorsement made by respondent that respondent will not disturb the possession of petitioner except due process of law. Without prejudice to

this case of respondent in II appeal his endorsement is accepted. Since the respondent made endorsement that respondent is not going to disturb

the possession of petitioner. This closed as unnecessary. No costs.

The appellant in the execution proceedings stated that he will not disturb the possession of respondents 1 and 2, except by due process of law,

which would show that the respondent land 2 are in possession. The reference to possession of the said endorsement is to the decree holders

namely the respondents 1 and 2.

The learned counsel also submit that in the statutory suit, filed u/s 77 of the Registration Act, no other relief can be claimed and therefore, there

is no question of bar of Order 2, Rule 2, C.P.C. The learned counsel submits that it is only after a due appreciation of documentary and oral

evidence and the pleadings, the Courts below have come to the conclusion that the respondents 1 and 2 are in possession of the property.

The recitals in the agreement are extracted to show that the respondents 1 and 2 did not clearly prove the date on which they were put in

possession. Exs. A-1 and A-2 are the agreements and Exs.A-3 and A-4 are the sale deeds. The specific recital in the agreement is that:

Therefore the agreement between the parties is that the possession should be handed over at the time of registration.

Thereafter the two documents which are said to have been executed on 3.12.1989 are produced for registration. The Registrar refused to

register the document by his order dated 1.4.1991 and thereafter two suits were filed u/s 77 of the Registration Act and decree was passed

directing the Registrar to register the document, if it is duly presented for registration within 30 days of passing of the decree. The document was

finally registered only on 13.4.98.

According to the respondents 1 and 2, the appellant is not entitled to let in evidence contrary to the recitals in the document and when the

agreement says that possession would be given at the time of registration, then it should be taken that the date of Exs. A-3 and A-4 is the date of

Registration and in so far as the date of possession is concerned, the words ""at the time of registration"" cannot be strictly construed and it must be

construed when steps are taken to have the document registered. It is difficult to accept this contention. The legal position is that a document which

is compulsorily registerable will not come into effect, particularly in the case of any immovable property which is the subject matter of the

document, till it has bean registered. But as soon as it has been registered, the document takes effect from the date of registration, but retrospective

from the date of its execution. Section 47 of the Registration Act also lays down that this is the time from which the registered document will

operate. This may be acceptable in so far as the respondents'' title to the immovable properties are concerned. But here we are concerned with the

recitals in an agreement by which the appellant agreed to give possession when the document is registered. The written statement clearly shows

that the appellant has denied the execution of A-3 and A-4. Admittedly, the suit filed by the respondents 1 and 2 herein for compulsory registration

of the sale deeds were decided in their favour and it may be that there was a specific finding in the paid judgment rejecting the case of the appellant

herein, with regard to the denial of execution.

Appeals were filed and the same were dismissed for default. The case of the appellant is that an application has been filed to restore the

appeal. The question whether the appellant has really executed Exs. A-3 and A-4 is not relevant for deciding this case. P.W. 1 the father of the

respondents 1 and 2, who alone gave evidence, clearly states that because the appellant refused to come to the Registrar Office for registering the

document, they had to file applications for compulsory registration. If this is the position, the burden is on the respondents 1 and 2 to show that

notwithstanding the attitude of the appellant, refusing to co-operate in the registration before the Registrar, he handed over the possession of the

property on the date of execution of the sale deed i.e., on 3.12.1989.

The contention of the counsel for the respondents 1 and 2 is that respondents have to prove only whether they were in possession on the date

of suit and nothing more. This cannot be accepted because it is their case that they were in possession prior to the registration of the sale deeds.

The pleadings are vaguely worded so that there is total ambiguity as regards the date on which the respondents 1 and 2 were put in possession.

When specific question was asked to the counsel for the respondents 1 and 2, whether the respondents 1 and 2 have either in the plaint or in the

evidence stated the date on which they were put in possession, there was no answer.

In fact the respondents 1 and 2 evidently avoided to get into the box but, their father alone was examined as P.W.I and he denied knowledge

regarding crucial details. His evidence is also vague in so far as the date on which the respondents 1 and 2 got possession.

Therefore the witness says that possession was given on the date of the agreement, which is 21.4.1989. This is totally contrary to the recitals in

Exs.A-1 and A-2. Thereafter, he sys, from that date they have been paying the taxes.

But the document filed by the respondents 1 and 2 regarding the payment of statutory dues is only Ex.A-9, which is dated 25.9.98. Not even one

document has been filed to show that right from the year 1989 they have been paying the statutory dues. The witness further says that the

possession was agreed to be given at the time of executing Exs. A-1 and A-2.

The witness does not know what was written in Exs. A-3 and A-4.

The evidence of P.W.1 was that the appellant did not come to the Sub Registrar Office and they did not pay the entire sale consideration.

The contention of the respondents 1 and 2 is that the reference to the earlier suit was not germane to the present suit and therefore there was

no reference and since nothing was done behind the back of the appellant, the fact that there was no reference to the earlier suit would not amount

to suppression of facts.

The case of the appellant, rests on proof of possession. The manner in which possession was intended to be given is seen from Exs. A-1 and

A-2. However it is claimed that possession was given on the date of Exs.A-1 and A-2, as per the oral evidence of P.W.1, Exs.A-3 and A-4,

were registered not on the date of the execution but long afterwards by a Court Decree. In the plaint possession was not mentioned. In these

circumstances, it was the duty of the plaintiffs to place before the Court the fact that the appellant refused to co-operate with the Registrar and

therefore they had to file an application before the Registrar for compulsory registration and it was rejected and thereafter suits were filed and

decreed. It is clear that the respondents 1 and 2 had not come to the Court with clean hands.

Following decision are relied on:

(1) Anjinamma v. Puttaharitappa AIR 2003 Kar. 24; (2) Keshwar Mehra v. Rajeswari Parshad Singh AIR 1935 Pat. 497 ; (3) Debilal

Khandelwal and Others Vs. Damodar Das Khandelwal @ Gulab Babu and Others, Ganga Ram Vs. Ram Lachan Singh and Others, .

All these decisions deal with the issues of limitation of presentation of documents for registration. This issue ought to be considered only by the

Court which hears the appeal filed by the appellant herein as and when the appeals dismissed for default are restored.

The learned counsel for the respondents submits that though mutation of names in the revenue records is not the evidence of title, it would

definitely show possession and for this he relied on Guruvammal v. Subbaiah Naicker 2000 (1) L.W. 488 wherein, the learned Judge has referred

to Sankalchan Jaychandbhai Patel and Others Vs. Vithalbhai Jaychandbhai Patel and Others, , in which it was held that the mutation entries enable

the State to collect the revenues from persons in possession. According to the learned counsel, the fact that the revenue records have been

changed to their names would clearly show that they were in possession.

In Sankalchan Jaychandbhai Patel and Others Vs. Vithalbhai Jaychandbhai Patel and Others, , the Supreme Court held mutation entries are

one of the modes of proof of the enjoyment of property.

K. Sadasivam v. B. Harikrishnan 2001 (2) CTC 590 was relied on by the appellant to show that possession is pre-requisite for grant of

injunction and when the plaintiffs failed to furnish particulars regarding the date when they took possession of property, decree of Court below

granting injunction must be set aside.

V.G. Loganathan v. M. Balakrishnan 2001 (1) MLJ 373 that was a suit for permanent injunction and the plaintiff had suppressed the real facts

and the Court held that when a person comes to Court without disclosing the materials he is guilty of playing fraud on Court. Therefore the

judgment was set aside.

N. Ramalinga Nainar v. Noor Mohammed Saheb 2001 (1) L.W. 691 this was relied on by the counsel for the appellant since this also relates

to the question whether the document presented for registration beyond the period provided u/s 77. This issue is not dealt with in the present case.

An unreported Division Bench decision of this Court in A.S. Nos. 665 and 666 of 2001 was relied on wherein the Division Bench upheld the

question related to bar under Order 2, Rule 2.

Both the counsel referred to proceedings before the Joint Registrar and the order passed by him. Since this in only a suit for bare injunction,

the question of execution is not gone into, especially because it is submitted that an application has been filed to restore the appeals against the suits

u/s 77 of the Registration Act.

An analysis of Section 77 of the Registration Act indicates that it can be invoked only to secure the relief of registration of document, and not

for a comprehensive suit for specifically enforcing the agreement by directing the defendant to register the sale deed and for possession. This is

clear from Kalavakurti Venkata Subbaiah Vs. Bala Gurappagari Guruvi Reddy, .

The only question in this second appeal is whether the respondents are entitled to the relief of injunction on the basis of possession. In the

circumstances stated above, I am of the opinion that the respondents have not come to Court with clean hands. They have deliberately suppressed

the earlier suits fearing that, it would clearly show that the appellant was not co-operating with them for registration of sale deed. The mere fact that

they have managed to obtain mutation of their names in the revenue records cannot help them when this was effected only after the compulsory

registration of the sale deed, consequent to the decree passed by the Court in favour of the respondents. They have not chosen to get into the box,

but they put their father into the box who did not know anything about the factual aspects and in fact deposed contrary to the clear recitals in

Exs.A-1 and A-2 that they were put in possession on the date of Exs.A-1 and A-2.

The substantial question of law No. 1 is answered in favour of the appellant. The judgments of the Courts below are vitiated by perverse

appreciation of materials on record and failed to see that there was absolutely nothing in the pleadings or in the evidence to show that the plaintiffs

were put in possession before the date of suit. Hence, the second appeal is allowed and the judgment and decree of the Courts below are set

aside. No costs.