Sailam Boyam Taramma and another vs Devanapalli Narasaiah

Madhava Rao

This revision is filed by the Plaintiffs against an order of the learned District Munisif, Shadnagar, holding that the document in question is not admissible in evidence. The contention raised in the lower Court on behalf of the plaintiffs was that the document could be marked for the collateral purpose of providing the possession of the 1st plaintiff over the suit house. On the other hand it was argued on behalf of the defendant that the suit itself was filed for perpetual injunction on the basis of the possession ever the suit house and that it is an admitted fact that the 1st plaintiff is in possession of the suit house on behalf of the defendant and hence there is no necessity to prove the possession of the 1st plaintiff. The lower court raised the point whether the possession of the 1st plaintiff is as the licensee or as the owner of the suit house. The defendant, therefore, contended that the plaintiffs wanted to establish that the 1st plaintiff is in possession of the suit house as the owner which was denied by the defendant. The lower court has not discussed the matter, but stated that:

The defendant contends that by getting the document marked the plaintiff is trying to establish that 1st plaintiff is in possession of the suit house as the owner and the fact that is not agreed by the defendant. Thus in the above circumstances I am of the opinion that marking the unregistered sale deed even for possession in this suit is not for the collateral purpose as in the main suit itself, this nature of possession is in dispute. Hence I hold that the unregistered sale deed is not admissible for marking the same for the purpose of proving the possession of the plaintiff over the suit house.

The order of the lower Court is not intelligible. Why the lower Court held that the document in question it not admissible for collateral purpose is not clear. It was of the view that the nature of possession is in dispute. If the document is filed for collateral purpose, it is only for proving the possession, but not for the enforcement of title. For the enforcement of the title, the document needs registration. Therefore, no suit for enforcement of the title, could be filed on the basis of an unregistered sale deed. If the sale deed has to be admitted, it has only to be admitted for collateral purpose to show the nature of possession.

In the present case, it is alleged in the plaint that plaintiff No. 1 purchased the suit house for Rs. 600 O. S. under a sale deed executed by the defendant in October, 1949, and that the said sale deed was filed along with the plaint. In paragraph No. 3 of the plaint it is stated :

Plaintiff No. 1 resides in the suit house prior to the execution of the sale deed and subsequently after the execution of the sale deed as owner and she has now also attained ownership rights of the suit house on basis of sale deed and on the basis of adverse possession since more than 25 years.

Even a copy of the written statement is not filed before me. But the order of the lower Court discloses that the 1st plaintiff was permitted to reside in the suit house by the defendant. The defendant denied the execution of the sale deed. Thus, though the sale deed is filed the suit is for perpetual injunction to restrain the defendant from interfering with her possession and enjoyment of the suit property, there is no relief claimed for declaration of title. What is sought to be proved in the suit is that she was no doubt in possession of the suit house even prior to the sale deed, but the 1st plaintiff alleged that since the date of the sale deed, she attained the ownership rights in the suit house as stated in paragraph 3 of the plaint. Thus, whatever may be the nature of possession prior to the sale deed, it is evident that from the date of the sale deed, she has been in possession as owner and she wanted to file the document in question to show that the nature of possession was converted into that of an owner.

The learned counsel for the petitioners with the above background, as already stated contended that the document in question is sought to be filed, to show the nature of possession from the date of the sale deed but not to enforce the sale deed. Therefore, it is admissible in evidence.

On the other hand, it is contended by the learned counsel for the respondent that the document is sought to be marked to convert permissive possession alleged by him into the possession of an owner. This is not permissible and therefore the document could not be admitted in evidence. The lower Court was justified in pasting the impugned order. In support of his contention he relied upon the decision in Mst. Kirpal Kaur Vs. Bachan Singh and Others, wherein Sarkar ; J. in para 14 of the judgment pointed out:

In the present case Harnam Kaur had been in possession before the date of the document and to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give affect to the agreement contained in it which admittedly cannot be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by S. 49 of the Registration Act.

This passage, in my view, does not help the contention raised by the respondent.

In that case one Ram Ditta died and his son Jeena predeceased him leaving a widow Harnam Kaur. Harnam Kaur succeeded to the property on the death of Ram Ditta. Harnam Kaur had a daughter, Kirpal Kaur. Kirpal Kaur had a son of the name of Satwant Singh. Ram Ditta had created collateral relations and the dispute was between them on the one hand and Harnam Kaur and Kirpal on the other hand. There was a litigation when the mutation proceedings took place and ultimately the collaterals filed a suit against the daughter-in-law of Ram Ditta. She took the plea that she was in adverse possession of the property and that she was entitled to maintenance. Ultimately there was a settlement between the parties and an agreement was executed on 6-2-1932 by Harnam Kaur whereby she agreed that the lands would belong to her for her life and after her death to Kirpal Kaur for the letter''s life and that none of them would be entitled to tell or mortgage the lands. This document was never registered. In 1936, Harnam Kaur created another mortgage on the lands and this mortgage was subsequently transferred to Satwant Singh, son of Kirpal Kaur. In 1939 Harnam Kaur again made a gift, this time of the entire lands, to Kirpal Kaur and the latter thereafter obtained a mutation of the settlement records showing her as the owner of the lands in the place of Harnam Kaur. This eventually brought about the institution of the suit by the collaterals against Harnam Kaur, Kirpal Kaur and Satwant Singh and certain other collaterals. The suit was contested by Harnam Kaur, Kirpal Kaur and Satwant Singh. Issue No. 6 which is relevant for our purpose, reads as under :

Had Harnam Kaur acquired a right to the lands by adverse possession at the time of the gift to Kirpal Kaur ?

This issue was decided against the plaintiffs therein and the rest of the issues in their favour. The trial Court was of the view that Harnam Kaur was in possession since 1920 i.e. from the date of the death of Ram Ditta and acquired title to the lands by adverse possession. It was contended before the trial court that the agreement of 6-2-1932 though not admissible in evidence in the absence of registration to prove that Harnam Kaur and Kirpal Kaur had only life estates in the lands, was admissible to show the nature of Harnam Kaur''s possession and that it showed that her possession was not adverse. The learned Judge did not accept this contention. Thus the suit was dismissed. Then the plaintiffs took the matter in appeal to the District Judge of Patiala who dismissed the appeal. When the matter was taken in appeal to the High Court, the High Court was of the view that Harnam Kaur was the heir of Ram Ditta under a special custom prevalent in Punjab and therefore Harnam Kaur was entitled to the possession of the lands and no presumption could therefore arise that she was holding them adversely to the collaterals. It also held that the agreement of 6-2-1932 was admissible in evidence to prove the nature of Harnam Kaur''s possession of the lands though it was not admissible to prove title as it had not been registered. In this view of the matter the High Court allowed the appeal and decreed the sun of the plaintiffs. On appeal the Supreme Court disagreed with the view of the High Court on the ground that no custom was set up in the pleadings by the plaintiff and therefore it should not be considered. In the written statement it was clearly alleged that she was entitled to maintenance only. Therefore, her entry into possession of the land was not as a heir and so her entry into the possession was adverse to the real heirs, if any. While discussing the agreement entered into between the parties, their Lordships of the Supreme Court were pleased to hold that the plaintiffs wanted to enforce the agreement and treat the possession of the defendant as permissive but the agreement was not registered. It may be noted that the suit was filed by the collaterals and they wanted to enforce the agreement and hold that the possession of the defendant was permissive on the basis of the agreement thus converting the adverse possession into permissive possession. The enforcement of the agreement is quite contrary to the Provisions of Sec. 49 of the Registration Act. It was not meant for collateral purpose, but to enforce the agreement itself. Therefore it was very clearly held by their Lordships that to admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by Sec. 49 of the Registration Act. Therefore, their Lordships were of the view that the document sought to be enforced without being registered is not permissible, but if it is for a collateral purpose, the document under Sec. 49 of the Registration Act could be admitted in evidence.

In the instant case, the suit was not filed to enforce the sale deed. But the document in question to be admitted in evidence is sought to show the possession and to defend that even an unregistered document could also be used by the plaintiffs by way of weapon. This position is made clear by a Division Bench of this Court consisting of Yenugu Achayya and Another Vs. Ernaki Venkata Subba Rao and Others The Bench held :

It is settled law that u/s 54A of the Transfer of Property Act, no title passes to a transferee. He cannot file to recover possession of the some on the basis of any title conferred on him. But if the conditions land down in the section are complied with, it enables the transferred to defend his possession if the transferor seeks to enforce his rights against the property, This statutory right he can avail himself both as plaintiff and as defendant provided he is using the right as a sheild and not as a sword. Or to put it in other words, he cannot seek to enforce his title but he can resist the attack made by transferor.

In the present case the suit was filed on the basis that the defendant is interfering with the possession of the plaintiffs and therefore, the relief of permanent injunction is sought. The document in question, even though unregistered, could be used for collateral purpose of proving the possession of the plaintiffs. Since the date of purchase plaintiff No. 1 is in possession as a purchaser, whatever her possession may be prior to that. The document recites that it was executed for a consideration of Rs. 6400/-. It is not clear whether the amount was paid or not. But there is nothing on record to show that the amount was not paid on that date. That is a matter of evidence. It may be noted that the defendant denied the execution of the sale deed and its genuineness. Now, we are only concerned with the admissibility of the document in evidence.

For the above reasons, the Civil Revision Petition is allowed and the order of the lower Court is set aside. The document in question be admitted in evidence. No order as to costs. However, it is made clear that this will not prevent the defendant from questioning the genuineness of the document and raising any other objections he chosen in respect of the document.