the attention of this Court to the decision in State of Andhra
Pradesh and Others v. Star Bone Mill and Fertiliser
Company [(2013) 9 SCC 319], wherein it was held in
paragraph 21 that:
"The maxim "possession follows
title" is applicable in cases where proof
of actual possession cannot
reasonably be expected, for instance,
in the case of wastelands, or where
nothing is known about possession one
way or another. Presumption of title as
a result of possession, can arise only
where facts disclose that no title vests
in any party. Possession of the plaintiff
is not prima facie wrongful, and title of
the plaintiff is not proved. It certainly
does not mean that because a man
has title over some land, he is
necessarily in possession of it. It in
fact means, that if at any time a man
with title was in possession of the said
property, the law allows the
presumption that such possession was
in continuation of the title vested in
him. A person must establish that he
was continued possession of the suit
property, while the other side claiming
title, must make out a case of
trespass/encroachment, etc. Where
the apparent title is with the plaintiffs, it
is incumbent upon the defendant, that
in order to displace this claim of
apparent title and to establish
beneficial title in himself, he must
establish by way of satisfactory
evidence, circumstances that favour
his version. Even, a revenue record is
not a document of title. It merely
raises a presumption in regard to
possession" . (Emphasis supplied).
29. In order to grant a decree of perpetual injunction
what has to be considered is as to who is in actual physical
possession of the property. When the property is a baron
land, vacant land or lying as a road etc., title deed should be
there to ascertain the possession over such property. The
principle is that in such case, possession follows title.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
30TH DAY OF MARCH 2017.
RSA.No. 85 of 2011
P.M.MATHEW,
V
ANTONY MATHEW,
Challenging the judgment and decree passed by the
Additional District Court, Pathanamthitta in A.S.No.72/08,
the 2nd defendant in O.S.No.250/04 of the Munsiff's Court,
Ranny, has come up in second appeal. The first defendant
is no more. His legal representatives are the appellant as
well as respondents 2 to 6.
2. The suit was originally filed by the first
respondent herein as plaintiff as a suit for perpetual
injunction, for restraining the defendants and the persons
claiming under them from causing any obstructions to the
possession and enjoyment of the plaintiff over the plaint
schedule property, as well as the private road constructed
through the same, and also from changing the lie of the said
private road, and from committing any waste on the plaint
schedule property and the said private road.
3. During the pendency of the suit, the 2nd defendant,
who is the appellant herein, purchased the plaint schedule
property from the legal representatives of deceased
Vasudevan, who was the original patta holder of the
property, and consequentially, the appellant was impleaded
in the suit as the 2nd defendant. Initially, the suit was filed
against the first defendant alone. The first defendant is the
father of the 2nd defendant. A relief has been incorporated in
the plaint for declaring Ext.B1 as null and void.
4. The Munsiff's Court, Ranny dismissed the suit.
Challenging the said judgment and decree, the plaintiff went
up in appeal before the District Court, Pathanamthitta
through A.S. 72/2008. The learned Additional District Judge,
Pathanamthitta allowed the appeal in part, and granted a
judgment and decree of perpetual injunction restraining the
appellant and the other respondents in the appeal from
causing any obstructions to the plaintiff's possession and
enjoyment of the plaint schedule property and the private
road situated therein, and also from committing any waste
thereon. In paragraph 28 of the impugned judgment the
lower appellate court has gone to the extent of stating that
the declaration sought for by the plaintiff as such cannot be
granted solely because of the fact that the executants of
Ext.B1 were not made parties to the suit. Thereafter, it has
been stated that "But all the same plaintiff can ignore Ext.B1
it being a document created on falsehood."
5. This Court has admitted this second appeal on
the following substantial questions of law:
"(1) When Ext.A2 shows that it is an
assignment deed executed by Thomas
Abraham, Annamma and Scaria in favour
of Tharapel Mathai Antorny for a
consideration of 8,750/-, whether the
unregistered deed is valid in law?
(2) When Ext.A6 sale deed executed by
Vasudevan in favour of PW7 Raghavan
Nair and his wife Ponnamma shows that
the property which was earlier in his
possession under an agreement for sale
was transferred thereunder and the
property so assigned excludes the
disputed 35 cents, whether first appellate
court was justified in finding possession of
the said excluded 35 cents with the
plaintiff, as plaintiff is claiming the right
obtained from the said Raghavan Nair?
(3) Whether the first appellate court on
the evidence, was justified in holding that
legal heirs of Vasudevan have no right to
assign the property, by Ext.B1 sale deed?
(4) Whether the first appellate court on
the evidence was justified in holding that
plaintiff established possession of the
disputed 35 cents and granting a decree
for injunction based on that finding?"
6. Heard the learned counsel for the appellant and
the learned Senior Counsel for the first respondent.
7. The learned counsel for the appellant has argued
that the plaintiff has no title over the plaint schedule property
and some false documents were cooked up and created
through PW7, who is a document writer, in order to forward
false claims over the plaint schedule property. It has been
argued that the said property exclusively belongs to the 2nd
defendant, who is the appellant herein through Ext.B1 sale
deed. According to the learned counsel for the appellant, all
the findings entered by the lower appellate court are
apparently unfounded and baseless, and the lower appellate
court ought not to have entertained the appeal itself.
8. Per contra, the learned Senior Counsel for the
first respondent has argued that in order to obtain a decree
for perpetual injunction, the plaintiff need only prove his
possession over the property and he need not assert or
claim his title over the property. It is argued that the plaintiff
could clearly prove his title over the plaint schedule property
and therefore, the impugned judgment and decree of
perpetual injunction is not liable to be interfered with.
9. Through the plaint, the plaintiff has claimed that
he is entitled to the title and possession over 36 cents of
property in Sy.No.780/1/2 of the Kollamula Village which is
the plaint schedule property. According to him, the said
properties devolved on him through Ext.A1 sale deed in
respect of one cent of property out of 36 cents and the
remaining 35 cents of property devolved on him through a
contract executed by Thomas Abraham, his wife Annamma
and their son Scaria on 18.06.1979, which is Ext.A2.
According to the plaintiff, he had purchased the said
properties for constructing a road to his house and
thereafter he constructed a road having a width of 12 feet
and a length of 150 mtrs as a private road leading to his
house. The defendants are residing in their property situated
at the eastern side of the said private road. The defendants
are making use of the pathway having a width of 3 feet
passing through the side of their property. The defendants
attempted to construct a road from their property to the
private road of the plaintiff and hence the suit.
10. The first defendant initially filed a written
statement, and after the amendment of the plaint, again filed
an additional written statement. In the written statement the
first defendant contended that the road passing through the
side of the property of the defendants is not a private road
belongs to the plaintiff, and that the said road is a public
road being made use of by the plaintiff, the defendants as
well as other people of the locality. It was also contended
that the said road was a motorable road, jointly possessed
by the plaintiff and the first defendant and therefore, the
plaintiff cannot claim any special right over the said property.
The 2nd defendant filed the written statement contending that
the 2nd defendant has purchased 35 cents out of the plaint
schedule property from the legal representatives of
Vasudevan through Ext.B1 and therefore, the plaintiff cannot
maintain a suit of this nature.
11. The question as to how the plaintiff had allegedly
derived title or possession or any other right over the
property has to be considered. This Court is taken aback to
see that several documents which ought not to have been
admitted in evidence were permitted to be marked on the
side of the plaintiff. The plaintiff has claimed title and
possession over 35 cents of property out of the plaint
schedule property through Ext.A2. Ext.A2 is a document, the
nomenclature of which is that of a contract. At the same
time, it seems that the said document is executed as if it is a
sale deed. Through the said document, it has been clearly
recited that 35 cents of property in Sy.No.780/1/2 has been
sold to the plaintiff by Thomas Abraham, his wife Annamma
and their son Scaria through Ext.A2 on 18.06.1979 for a
total consideration of 8,750/-. The said unregistered
document is prepared in favour of the father of the plaintiff in
a stamp paper worth 3/-. The same was prepared by PW7
as scribe. In Ext.A2, the vendors had shown their prior
document in respect of the property as sale through a
contract executed in their favour by one Philip on
09.04.1979.
12. The said unregistered document allegedly
obtained from Philip on 09.04.1979 is Ext.A5. Ext.A5 is also
prepared by PW7. The same is prepared in a stamp paper
worth 1.50. The nomenclature of the said document is that
of an assignment deed. The contents of the said document
shows that it was executed in the form of a sale deed. Even
though the document was allegedly executed on
09.04.1979, it seems that the stamp paper was purchased
on 01.07.1975. Apart from that, the said stamp paper was
purchased in the name of one Hassan Rawuther, who has
no connection with any of the transaction involved in the
case. Ext.A2 as well as Ext.A5 are unregistered documents,
even though immovable property worth more than 100
were allegedly sold through Exts.A2 and A5.
13. Ext.A5 shows the prior document of Philip in
respect of the said property as Ext.A4 sale deed dated
01.05.1973 executed by PW7 in his favour. PW7 is the
scribe in Ext.A5 also.
14. Ext.A4 is dated 01.05.1973 prepared in a stamp
paper worth 2. The nomenclature of the document is that
of a contract. PW7 had claimed in Ext.A4 that through a
contract he had purchased 35 cents of property from K.
Vasudevan and that PW7 has accepted an amount of
1,500/- being part of consideration from the said Philip.
The said document also is not a registered one. In Ext.A4 it
has not been mentioned that the said 35 cents of property
was sold by PW7 to the said Philip; whereas, the terms
reveal that it was only an agreement for sale, by undertaking
that the sale deed would be executed on the payment of the
balance consideration. Admittedly, no sale deed was
executed by PW7 in favour of Philip. Matters being so, the
said Philip cannot claim any transfer of title of the property in
his favour. It has also not been mentioned in Ext.A4 that the
possession of the property was handed over to the said
Philip. Therefore, as rightly pointed out by the learned
counsel for the appellant, Philip, who is the so-called vendor
in Ext.A5, had no title or possession over the property to
convey to the so-called vendors of Ext.A2. Evidently, the
plaintiff cannot claim any title or possession on the basis of
Exts.A2, A5 and A4.
15. From the aforesaid documents, it is evident that
all the said mischief was committed by PW7, who is a
document writer. Even in the stamp paper in which Ext.A2
was cooked up, it seems that in a different ink the number
and the date of stamp paper are seen subsequently
inserted. There is everything to suspect that the said stamp
paper was also purchased subsequently and has been
made use of, for creating Ext.A2.
16. Similar is the case with Ext.A5 also. The stamp
paper worth 1.50 in which Ext.A5 was prepared was one
purchased by one Hassan Rawuther, who has no
connection with any of the transactions involved in the case.
Further, the said stamp paper was purchased on 01.07.1975
by the said Hassan Rawuther and the same was issued
from the Sub Treasury on 03.06.1975. At the same time,
Ext.A5 was executed on 09.04.1979, ie., around five years
after the purchase of the stamp paper by the said Hassan
Rawuther. No doubt, Exts.A2, A5 and A4 are falsely cooked
up and created by PW7, who is a document writer.
17. PW7 claims that he had purchased the property
having an extent of three acres and 89< cents from K.
Vasudevan in the year 1972 and PW7 was put in
possession of the property in the year 1972. At the same
time, it has come out that even the said K. Vasudevan
obtained patta for the property in the year 1973 only. It was
through Ext.A6, PW7 and his wife Ponnamma had
purchased the properties covered by Ext.A6 on 13.04.1976
from K. Vasudevan. Evidently, through Ext.A6, PW7 and his
wife had purchased only three acres and 14 cents of
property, after excluding 35 cents from the northern portion
and 40 cents from the eastern portion of the total extent of 3
acres and 89< cents of property.
18. Even though the learned Senior Counsel for the
first respondent has argued that prior to the execution of
Ext.A6, PW7 had disposed of the said 35 cents of property
and 40 cents of property and therefore, the said 75 cents of
property could not be included in the property sold through
Ext.A6, in the absence of any such recitals in the said
document, it cannot be said that PW7 or his wife were put in
possession of those properties in the year 1972 by the
vendor of Ext.A6. It has not been shown in Ext.A6 that PW7
was put in possession of the said 35 cents and 40 cents by
K. Vasudevan in the year 1972. If such an argument
forwarded by the learned Senior Counsel is accepted, such
a recital, that PW7 was put in possession of property
covered by Ext.A6 as well as the other 35 and 40 cents of
property, should have been there in Ext.A6.
19. In Ext.A6 also it was shown that the properties
being enjoyed by K. Vasudevan were handed over to PW7
in the year 1972. The said aspect cannot be believed
because of the fact that in the year 1972 even K. Vasudevan
had not obtained patta for the property. Had the property
been transferred prior to 1973, K. Vasudevan could not have
been obtained patta in respect of the said property in the
year 1973. Therefore, it seems that the incorporation of
such a recital regarding the handing over of the property in
the year 1972 has been fraudulently incorporated by PW7 in
Ext.A6. After getting such a recital incorporated in Ext.A6,
he prepared Exts.A2, A5 and A4 and that is why a registered
document could not be created in respect of 35 cents and
40 cents of property and the same could not be disposed of
through registered documents.
20. There is absolutely nothing to show that the title
of 35 cents of property included in the plaint schedule
property was transferred by K. Vasudevan in favour of any
other person. Therefore, the title remained with him.
Subsequently, the 2nd defendant, who is the appellant herein
had purchased the said 35 cents of property from the legal
representatives of K. Vasudevan. The lower appellate court
ought not to have found that the plaintiff can ignore the said
document. The appellant alone has better title in respect of
the property than the one claimed by the plaintiff. The claim
of the plaintiff regarding the title of the property is baseless
and unfounded. Exts.A2 and A5 and A4 have no value at all.
The same could not have been admitted in evidence in the
suit. As per Section 17(1)(b) of the Registration Act, 1908 a
sale deed is a compulsorily registrable document in case the
value of the immovable property covered by it exceeds
100/-.
21. The consequences of non-registration of such a
compulsorily registrable document is covered by Section 49
of the Registration Act, which says:
"Effect of non-registration of
documents required to be registered:
No document required by section 17 or by
any provision of the Transfer of Property
Act, 1882 to be registered shall-
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any
transaction affecting such property or
conferring such power, unless it has been
registered:
PROVIDED that an unregistered
document affecting immovable property
and required by this Act or the Transfer of
Property Act, 1882, to be registered may
be received as evidence of a contract in a
suit for specific performance under
Chapter II of the Specific Relief Act, 1877,
or as evidence of part performance of a
contract for the purposes of section 53A of
the Transfer of Property Act, 1882, or as
evidence of any collateral transaction not
required to be effected by registered
instrument."
22. The learned counsel for the appellant has invited
the attention of this Court to the decision in Suraj Lamp
and Industries Pvt. Ltd. v. State of Haryana[AIR 2012 SC
206] wherein it was held:
"Any contract of sale (agreement to sell)
which is not a registered deed of
conveyance (deed of sale) would fall short
of the requirements of sections 54 and 55
of TP Act and will not confer any title nor
transfer any interest in an immovable
property (except to the limited right
granted under section 53A of TP Act).
According to TP Act, an agreement of
sale, whether with possession or without
possession, is not a conveyance. Section
54 of TP Act enacts that sale of
immovable property can be made only by
a registered instrument and an agreement
of sale does not create any interest or
charge on its subject matter."
It was concluded in that case that therefore, the
unregistered document involved therein does neither convey
any title nor any interest in the immovable property.
23. In K.B. Saha & Sons Pvt. Ltd. v. Development
Consultant Ltd., [2008 (8) SCC 564] it was held in
paragraph 21:
"From the principles laid down in the
various decisions of this Court and the
High Courts, as referred to herein above, it
is evident that :-
1. A document required to be
registered is not admissible into
evidence under Section 49 of the
Registration Act.
2. Such unregistered document can
however be used as an evidence of
collateral purpose as provided in the
Proviso to Section 49 of the
Registration Act.
3. A collateral transaction must be
independent of, or divisible from, the
transaction to effect which the law
required registration.
4. A collateral transaction must be a
transaction not itself required to be
effected by a registered document,
that is, a transaction creating, etc.
any right, title or interest in
immoveable property of the value of
one hundred rupees and upwards.
5. If a document is inadmissible in
evidence for want of registration,
none of its terms can be admitted in
evidence and that to use a
document for the purpose of proving
an important clause would not be
using it as a collateral purpose."
24. Apart from the above, Section 54 of the T.P. Act
says that:
""Sale" is a transfer of ownership in
exchange for a price paid or promised or
part-paid and part-promised and such
transfer, in the case of tangible
immovable property of the value of one
hundred rupees and upwards, or in the
case of a reversion or other intangible
thing, can be made only by a registered
instrument."
25. In the case of Exts.A2, A5 and A4, it has to be
noted that the same are hit by Section 54 of the Transfer of
Property Act, and Section 49(a) as well as Section 49(c) of
the Registration Act. It could have been argued that the
said documents could have been made use of for collateral
purposes, in case such collateral transaction is not one
required to be effected by a registered instrument. Here,
even in order to obtain possession through a sale deed, the
value of the immovable property covered by such a
document if exceeds 100, it is compulsorily registrable as
per Section 17(1)(b) of the Registration Act and therefore, it
is hit by Section 49 of the Registration Act. In the light of
Section 49 of the Registration Act, the trial court ought not to
have received Exts.A2, A5 and A4 in evidence. Similarly, the
lower appellate court has committed grave error in relying
on Exts.A2, A5 and A4.
26. Through Ext.A6, PW7 and his wife purchased 3
Acres and 14 cents of property on 13.04.1976. Just on the
sixth day of the execution of Ext.A6, the wife of PW7
executed Ext.B2 on 19.04.1976, whereby she sold 18 cents
of property out of the property covered by Ext.A6. In the
said document, the northern boundary of the said property is
shown as `property of Vasudevan.' The said property of
Vasudevan is the 35 cents of property, which was left out
when Vasudevan had executed Ext.A6. Matters being so,
PW7 or the plaintiff cannot claim that the 35 cents of
property was not in the possession of Vasudevan even in
the year 1976. Had the property been handed over to PW7
or to some others in the year 1972, the northern boundary of
the property covered by Ext.B2 executed on 19.04.1976
should not have been shown `the property belongs to
Vasudevan' in Ext.B2. That itself denotes the falsity of the
claim of the plaintiff at the instance of PW7.
27. The learned Senior Counsel for the first
respondent has pointed out that the first respondent has
been paying tax for the 35 cents of property for the period
from 1981 onwards and therefore, from the same itself, it is
evident that the 1st respondent is in possession of the said
35 cents. It is trite law that revenue records cannot confer
title. At the same time, it can be made use of for the purpose
of ascertaining that as per the revenue records, such a
person is in possession of the property.
28. The learned counsel for the appellant has invited
the attention of this Court to the decision in State of Andhra
Pradesh and Others v. Star Bone Mill and Fertiliser
Company [(2013) 9 SCC 319], wherein it was held in
paragraph 21 that:
"The maxim "possession follows
title" is applicable in cases where proof
of actual possession cannot
reasonably be expected, for instance,
in the case of wastelands, or where
nothing is known about possession one
way or another. Presumption of title as
a result of possession, can arise only
where facts disclose that no title vests
in any party. Possession of the plaintiff
is not prima facie wrongful, and title of
the plaintiff is not proved. It certainly
does not mean that because a man
has title over some land, he is
necessarily in possession of it. It in
fact means, that if at any time a man
with title was in possession of the said
property, the law allows the
presumption that such possession was
in continuation of the title vested in
him. A person must establish that he
was continued possession of the suit
property, while the other side claiming
title, must make out a case of
trespass/encroachment, etc. Where
the apparent title is with the plaintiffs, it
is incumbent upon the defendant, that
in order to displace this claim of
apparent title and to establish
beneficial title in himself, he must
establish by way of satisfactory
evidence, circumstances that favour
his version. Even, a revenue record is
not a document of title. It merely
raises a presumption in regard to
possession" . (Emphasis supplied).
29. In order to grant a decree of perpetual injunction
what has to be considered is as to who is in actual physical
possession of the property. When the property is a baron
land, vacant land or lying as a road etc., title deed should be
there to ascertain the possession over such property. The
principle is that in such cases, possession follows title.
30. Here all sorts of falsehoods have been committed
by PW7 for and on behalf of the plaintiff. That is evident
from the discussions made above relating to Exts.A2, A5,
A4, A6 as well as B2. In such case, when a false claim of
title has been made, the production of Ext.A12 series tax
receipts cannot improve the case of the plaintiff. Ext.A12
series tax receipts have also to be considered with a pinch
of salt only. All the mischief was committed by PW7, a
Document Writer. He would have been instrumental in
obtaining mutation based on the unregistered sale deed
also. Evidently, such tax receipts were procured on the
strength of Exts.A2, A5 and A4. When those documents
have not even the value of blank papers, no sanctity can be
attached to Ext.A12 series procured by PW7 and the plaintiff
on the strength of Exts.A2, A5 and A4. Therefore, in this
particular case, in order to prove possession, the plaintiff
cannot rely on Ext.A12 series.
31. All the findings entered by the lower appellate
court are incorrect. At the same time, it seems that the trial
court had considered the matters in the correct perspective.
It is by heavily relying on Exts.A2, A5 and A4, the lower
appellate court has chosen to find that the plaintiff can
ignore Ext.B1. Ext.B1 is not liable to be ignored. The
plaintiff has no locus standi to challenge Ext.B1 as a void
document. There is absolutely no evidence to prove that
Ext.A1 is a void document. Therefore, the finding entered
by the lower appellate court that Ext.B1 is a void document
and therefore, the same can be ignored, is apparently
erroneous.
32. In these circumstances, the plaintiff is not entitled
to the decree of perpetual injunction also. The judgment
and decree passed by the lower appellate court are not
legally sustainable and the same are liable to be set aside.
In the result, this appeal is allowed and the judgment
and decree passed by the lower appellate court are set
aside. The suit stands dismissed. In the nature of this
appeal, parties shall bear their respective costs. All
interlocutory applications in this appeal are closed.
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