Ram Ratan vs Kanhiyalal and others

Hon''ble Shri Justice S.K. Seth

This appeal is by the plaintiff against the concurrent judgment and decree dated18.10.2011 passed by the 6th Additional District Judge, Indore in Civil Appeal No. 1/2010. Briefly stated, material facts leading to this appeal, after its circuitous journey, are as under.

Plaintiff Ram Ratan filed a suit for eclaration of title and permanent injunction in respect of agriculture land as described in plaint. The claimin suit is based upon long and continuous possession. It was alleged that the suit land fell into the share of Defendant No. 1 Kanhiyalal in a family arrangement and thereafter he sold suit land to the plaintiff and delivered the possession thereof. Since then, plaintiff as owner was cultivating the suit land in his own right. Further case of the plaintiff was that number of times he had asked defendant to execute the sale-deed in his favour but defendant No. 1 avoided doing so on one pretext or another. Thus, according to plaintiff, because of continuous and open possession over the suit land, he acquired title by way of adverse possession and defendants, especially defendant No. 1 had no right to interfere with the possession of the plaintiff over the suit land. Plaintiff therefore, claimed declaration of title and permanent injunction in the suit filed by him as stated above.

In his written statement, Kanhiyalal-the main contesting defendant, denied each and every material fact pleaded in plaint. He denied the story of sale coupled with delivery of possession as put forth in the plaint and submitted that the plaintiff was trying to grab suit land by taking advantage of his(defendant''s) physical infirmity. During the suit, defendant was dispossessed from the suit land, therefore, he filed counter claim seeking delivery of possession.

On consideration of evidence brought on record, trial Court dismissed the suitas the plaintiff failed to establish his case, but decreed the counter claim of the defendant No.1 vide its Judgment and decree dated 22.1.2010. The judgment and decree of the trial Court was affirmed in First Appeal by the lower appellate Court. Against the said judgment and decree, appellant came to this Court in S.A. No. 539 of 2010. The Second appeal was allowed and the case was remanded back to lower appellate Court with a direction to decide the appeal a fresh including the question of adverse possession.

Once again the lower appellate Court has found against the appellant and dismissed the suit. Hence this appeal is by the plaintiff, as stated above.

We have heard rival submissions at length. Perused the records of Courts below.

The only question which requires consideration is whether the appellant made out the case as set up in the plaint. It was his own case that under an oral sale, he had purchased the suitland but without any registered instrument. There are only two modes of transfer by sale and these are (1)registered instrument and (2) delivery of possession. The second mode isrecognised only in case of tangible immovable property of the value less than Rs. 100. In all other cases, a registered instrument is compulsory. Provisions of Section 54 of the Transfer of Property Act as to modes of transfer by the act of the parties are exhaustive. If the deed is not registered, there is no transfer and the property does not pass. The Court below rightly held that no amount of oral evidence could prove the sale or transfer of ownership in view of the specific bar created under the Evidence Act. The plaintiff could not succeed merely on the basis of mutation in revenue records. It is well settled that mere mutation in revenue record does not affect the proprietary rights and no presumption of ownership can be drawn on that basis, therefore the sufficiency or insufficiency of plaintiff''s oral evidence is of no consequence. In our considered opinion the lower appellate Court did not misinterpreted or misunderstood the remand order and on that count no flaw or fault can be found with the impugned judgment and decree. Courts below, on proper appreciation of evidence, have recorded pure findings off acts which do not give rise to any question of law and the questions formulated are in fact not less substantial questions of law.

Consequently, we find no merit in this appeal. The appeal therefore fails and is hereby dismissed with costs throughout. Ordered accordingly.