Saturday, 13 January 2018

Whether mutation entries in absence of registered relinquishment deed can be relied on?

Since this Court has already come to the conclusion, on the basis of aforesaid provision of law as well as material available on record, that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex. P-1 and Ex. DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Regular Second Appeal No. 23 of 2006

Decided On: 05.05.2017

 Piar Chand and Ors. Vs. Sant Ram and Ors.

Hon'ble Judges/Coram:
Sandeep Sharma, J.

Citation:AIR 2017(NOC) 918 HP


1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 22.09.2005, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, in Civil Appeal No. 164/13 of 2004/2001, reversing the judgment and decree dated 06.06.2001 passed by learned Sub Judge Ist Class, Ghumarwin, District Bilaspur, whereby suit of the plaintiff was decreed.

2. Briefly stated facts, as emerged from the record, are that one Munshi Ram, predecessor-in-interest of the plaintiffs-appellants (hereinafter referred to as the 'plaintiff') filed a suit for declaration, permanent prohibitory injunction as well as for possession averring therein that he is owner in possession of the land measuring 24-17 bighas, comprised in Khatta/Khatauni No. 36/53, Khasra No. 136 and 138, Kitta-2, situated in village Ropa Ghullatar, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'suit land'). It is alleged by the plaintiff that entries in the revenue record qua the suit land in favour of the defendants are wrong and without having any right, title or interest in the suit land. It is averred by the plaintiff that on 10.3.1995, on the basis of wrong entries in the revenue record, the defendants threatened to interfere with possession of the plaintiff over the suit land. It is further averred by the plaintiff that the suit has been filed for declaration and permanent injunction to the effect that the plaintiff be declared owner in possession of the suit land and the defendants be restrained from interfering with their possession. In this background, the plaintiff filed a suit for declaration, for issuance of permanent injunction restraining the defendants from interfering with the suit land in any manner as well as for possession.

3. Defendants No. 1 and 2, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability, estoppel, valuation and limitation. On merits, it is alleged by the defendants that they are joint owners in possession of 1/2 share of the suit land and they alongwith plaintiff are correctly recorded as joint owners in possession of the suit land, which stood partitioned amongst them on 15.5.1994 and since then the defendants are coming in separate possession of their shares. In nutshell, the defendants refuted the case of the plaintiff and prayed for dismissal of the suit. In the aforesaid background, the defendants sought dismissal of the suit filed by the plaintiff.

4. By way of replication, the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint and controverted the contrary averments made in the written statement.

5. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-

"1. Whether the plaintiff is entitled to declaration as prayed for? OPP.

2. Whether the entries incorporated in the revenue record are illegal as alleged? OPP.

3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP.

4. Whether the suit is not maintainable? OPD

5. Whether the plaintiff is estopped to file the present suit as alleged? OPD

6. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

7. Whether the suit is time barred? OPD

8. Relief"

6. Subsequently, learned trial Court, on the basis of pleadings as well as evidence adduced on record by respective parties, decreed the suit of the plaintiff.

7. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, defendant Sant Ram preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned Additional District Judge, Ghumarwin, District Bilaspur, which came to be registered as Civil Appeal No. 164/13 of 2004/2001. Learned Additional District Judge, taking note of the pleadings as well as evidence adduced on record by respective parties, allowed the appeal and set aside the judgment and decree passed by learned trial Court.

8. In the aforesaid background, appellants-plaintiffs filed instant Regular Second Appeal laying therein challenge to the aforesaid judgment and decree passed by learned Additional District Judge, Ghumarwin, District Bilaspur, whereby suit of the plaintiff was dismissed with a prayer to quash and set aside the same.

9. This Court vide order dated 10.05.2006 admitted the appeal on the following substantial question of law:-

"1. Whether the finding of the first appellate court that respondents/defendants acquired title to the extent of one-half share in the suit property by virtue of Azadinama referred to in the red ink note recorded in the remarks column of Misal Hakiet Ex. P-1, is bad in law on account of no such plea having been raised by the respondents-defendants in the written statement?"
10. Mr. G.D. Verma, learned Senior Counsel representing the appellants-plaintiffs, vehemently argued that the impugned judgment passed by the learned first appellate Court is not sustainable in the eyes of law as the same is not based upon the pleadings as well as proper appreciation of evidence adduced on record by the respective parties and as such same deserves to be quashed and set aside. Mr. Verma further contended that bare perusal of the impugned judgment suggests that the learned first appellate Court mis-directed itself while setting aside the well reasoned judgment passed by learned trial Court, whereby suit of the plaintiff for declaration/permanent injunction came to be decreed. Mr. Verma contended that bare perusal of the written statement having been filed by the defendants suggests that there was no pleadings/averments made by the defendants that they have acquired title to the extent of 1/2 share in the suit property by virtue of 'Azadinama' as reflected in the Missalhaquiat Ex. P-1 and as such there was no occasion, whatsoever, for learned first appellate Court to conclude that plaintiff Munish Ram has relinquished his 1/2 share of the suit land in favour of the defendants by way of 'Azadinama'. Mr. Verma further contended that otherwise also there is no evidence led on record by the defendants to prove 'Azadinama/relinquishment, if any, made by the plaintiff in favour of the defendants.

11. Mr. Verma further contended that since no pleadings, as such, with regard to aforesaid 'Azadinama' were made by the defendants in the written statement, no issue qua the same was framed by the Court below and as such the parties, more particularly, plaintiff was prevented from leading evidence to the effect that he had never relinquished his share in favour of the defendants. Mr. Verma further contended that otherwise also it is settled law that the Court could not go beyond pleadings, where admittedly no plea of 'Azadinama' having been made by the plaintiff was taken by the defendants. While referring to the evidence led on record by the plaintiff as well as defendants, Mr. Verma contended that it stands duly proved on record that plaintiff; namely; Munshi Ram, was exclusive owner of the suit land, which was granted to him as Nataur. Mr. Verma contended that title of immovable property only vests in other persons by way of registered documents and not through mutation, as has been claimed in the present case by the defendants. Similarly, Mr. Verma contended that learned first appellate Court below has placed much reliance upon compromise/admission to conclude that defendants were co-owners to the extent of 1/2 share in the suit property completely ignoring the fact that at the time of preparation of partition deed Ex. DW-3/A defendants were not having any pre-existing title over the suit land, as such, there is/was no relevance of aforesaid document while deciding the controversy at hand. Learned counsel further contended that the aforesaid document was not required to be considered and looked into by the Court below because Gram Panchayat had no authority to effect the partition of the suit land and houses situated thereon and as such partition deed Ex. DW-3/A, prepared by Gram Panchayat on the directions of A.D.M., Bilaspur, was wrongly taken into consideration by first appellate Court while setting aside the well reasoned judgment passed by the first appellate Court.

12. While concluding his arguments, Mr. Verma contended that there was no occasion, whatsoever, for plaintiff to lay challenge to mutation Ex. DX, whereby defendants were shown to be owners to the extent of 1/2 share on the basis of alleged 'Azadinama' because as per settled law no title could be transferred by way of oral statement, rather, title could only be transferred/relinquished by way of registered document. In the aforesaid background, Mr. Verma, prayed that the judgment and decree passed by learned trial Court below be restored after setting aside the judgment and decree passed by the learned first appellate Court.

13. Mr. Tara Singh Chauhan, learned counsel appearing for respondent-defendant No. 1, supported the impugned judgment passed by learned first appellate Court below. While inviting the attention of this Court to the impugned judgment and decree passed by learned first appellate Court below, Mr. Chauhan contended that there is no illegality and infirmity in the same, rather, perusal of the same suggests that each and every aspect of the matter has been considered and decided carefully by the Court below and as such, there is no scope of interference of this Court. While refuting the contention having been made by learned counsel representing the plaintiff that no pleadings were made by the defendants in written statement with regard to 'Azadinama' having been made by the plaintiff in favour of defendants, Mr. Chauhan contended that there was no requirement, as such, for defendants to specifically plead with regard to relinquishment/'Azadinama' made in favour of the defendants by the plaintiff, in view of documentary evidence led on record by the plaintiff himself in the shape of Ex. P-1. Mr. Chauhan, while inviting the attention of this Court to Ex. P-1, strenuously argued that bare perusal of the same suggests that in the year 1968 the plaintiff himself relinquished his 1/2 share in the suit land in favour of defendants and as such learned first appellate Court rightly held defendants entitled to 1/2 share in the suit land.

14. Mr. Chauhan further contended that during the pendency of first appeal, defendants had moved an application under Order 41 Rule 27 of the code of Civil Procedure, whereby defendants were allowed to place on record copy of mutation Ex. DX, which clearly suggests that plaintiff, of his own volition and fee will, relinquished 1/2 share of suit land in favour of defendants. He further invited the attention of this Court to copies of Jamabandi Ex. D-1 to Ex. D-6 and Ex. P-2 to suggest that after relinquishment made in favour of defendants on 12.7.1968, defendants are continuously recorded as joint owners to the extent of 1/2 share of the suit land, as such, there is no illegality in the findings returned by the Court below. Mr. Chauhan, while supporting the impugned judgment passed by learned first appellate Court, forcibly contended that bare perusal of judgment passed by trial Court suggests that learned Court below miserably failed to take note of relinquishment/'Azadinama' made in favour of defendants and as such learned first appellate Court rightly reversed the findings returned by the learned trial Court, which were admittedly passed without taking note of endorsement with regard to relinquishment made in Missalhaquiat Ex. P-1. Mr. Chauhan further contended that there is no evidence led on record by the plaintiff suggestive of the fact that he had ever taken steps after 12th July, 1968 for laying therein challenge to mutation made in favour of defendants and as such he cannot be allowed to state at this stage that mutation attested in favour of defendants pursuant to statement of plaintiff made on 12.7.1968 cannot be looked into.

15. While concluding his arguments, Mr. Chauhan invited the attention of this Court to the partition deed Ex. DW-3/A to suggest that Gram Panchayat effected partition of suit land and houses situated thereon amongst plaintiff and defendants on 15.4.1994 on the direction of Deputy Commissioner, Bilaspur and at that time no objection, if any, was ever raised by the plaintiff and as such there is no force in the arguments having been made by learned counsel for the plaintiff and the present appeal deserves to be dismissed.

16. I have heard learned counsel for the parties and gone through the record of the case.

17. While exploring answer to the substantial question of law, referred hereinabove as well as submissions having been made by learned counsel for the parties, this Court carefully perused the pleadings adduced on record by the respective parties. Plaintiff by way of suit for declaration and permanent injunction pleaded before the Court below that he is owner in possession of the suit land as described hereinabove and revenue entries made in favour of defendants qua the suit land showing them owners to the extent of 1/2 share of the suit land, are without any right, title and interest. Whereas, defendants, while refuting aforesaid claim having been made by the plaintiff, stated that they were joint owners in possession of the suit land alongwith the plaintiff to the extent of 1/2 share and as such revenue entries are rightly recorded showing them to be owners in possession to the extent of 1/2 share of the suit land. Defendants further claimed that no threat to dispossess the plaintiff from the suit land was ever made, as there was already family partition, which took place inter se parties on 15.5.1994.

18. After having carefully perused the pleadings, specifically written statement having been filed by the defendants, it nowhere suggests that plea, if any, of acquisition of title to the extent of 1/2 share of the suit property by virtue of 'Azadinama', as recorded in the remarks column of Missalhaquiat Ex. P-1, was ever taken by the defendants. Similarly, impugned judgment passed by learned trial Court suggests that no specific issue with regard to the acquisition of title to the extent of 1/2 share in the suit property by virtue of 'Azadinama' as recorded in Missalhaquiat Ex. P-1 was framed.

19. This Court also carefully examined statement of witnesses, especially defendants witnesses, perusal whereof nowhere suggests that case, if any, was ever set up before the trial Court below that defendants got 1/2 share in the suit property by virtue of 'Azadinama'/relinquishment having been made by the plaintiff in favour of the defendants as recorded in the Missalhaquiat Ex. P-1. All the defendants' witnesses, including defendant himself, stated before the Court below that suit land was granted as Nataur to Munshi Ram in the year 1947 by the Erstwhile Ruler of Bilaspur Estate and since then the suit land is coming into possession of Munshi Ram.

20. DW-3, Basant Singh stated in his statement that plaintiff Munshi Ram had not alienated the suit land nor defendants were having any right, title or interest therein. In his cross-examination he only stated that he had moved an application for partition of their land before the Deputy Commissioner, Bilaspur and Gram Panchayat had effected partition of the ancestral land of the parties. Partition itself was adduced in writing. Similarly, DW-1 Sant Ram stated that defendants were joint owners of 1/2 share of suit land and the Deputy Commissioner had forwarded the application to the Gram Panchayat and Gram Panchayat partitioned the suit land between Munshi Ram and the defendants. DW-3, who happened to be Pradhan of Gram Panchayat, Kuh Majhwar, also stated that Gram Panchayat was ordered to effect partition of the land and houses of the parties and accordingly the Gram Panchayat effected the partition of suit land and houses and partition deed Ex. DW-3/A was scribed by him which was signed by the parties. DW-4 Shiv Ram, who was member of the Gram Panchayat, also stated that Deputy Commissioner or A.D.M. Bilaspur had ordered the Gram Panchayat to effect partition of suit land between Munshi Ram and the defendants and accordingly the Panchayat had effected partition on 15.4.1994 and a partition deed Ex. DW-3/A was executed by the parties.

21. After having carefully perused the pleadings adduced on record by the defendants in shape of written statement as well as oral evidence in the shape of DW-1 to DW-4, it can safely be inferred that claim of the plaintiff as put forth in the plaint was never sought to be refuted by the defendants on the ground that they had acquired title to the extent of 1/2 share of the suit property by virtue of 'Azadinama' as referred in Missalhaquiat Ex. P-1. It emerge from the statement of aforesaid defendants witnesses that A.D.M., Bilaspur had directed Gram Panchayat, Kuh Majhwar to effect partition of suit land and houses situated therein between Munshi Ram and the defendants, but this Court was unable to lay its hands to any document adduced on record by either of the parties from where it could be inferred that how matter with regard to partition of the suit land landed up before A.D.M. Bilaspur. Defendants by way of partition deed Ex. DW-3/A made an endeavour to prove that on 15.5.1994 Gram Panchayat had effected partition inter se parties qua suit land as well as houses existing thereon. But, this Court was unable to find mention, if any, with regard to order passed by A.D.M., Bilaspur. In the alleged partition deed Ex. DW-3/A, it was only mentioned that Gram Panchayat on 15.5.1994 visited the site to effect partition in terms of orders passed by A.D.M., Bilaspur. After carefully perusing the pleadings as well as evidence on record, be it ocular or documentary led on record by the defendants, this Court sees substantial force in the arguments made by learned counsel representing the plaintiff that since no plea of 'Azadinama'/relinquishment having been made by the plaintiff in favour of defendants was raised, learned trial Court rightly not framed issue qua the same and proceeded to decide the case on the basis of pleadings as well as evidence adduced on record by the respective parties. As clearly emerged from the evidence of defendant witnesses, as have been discussed hereinabove, defendants have not been able to specifically prove that on what basis they became owners to the extent of 1/2 share in the suit land. DW-1, defendant Sant Ram himself admitted that entire suit land was granted as a Nautor to Munish Ram in the year 1947 by erstwhile Ruler of Bilaspur Estate and since then it is coming in the possession of Munshi Ram. Defendant No. 1 also admitted that Munshi Ram had not alienated the suit land. If the aforesaid version of defendant is accepted, there is no explanation worth the name, if any, rendered on record by the defendants that in what manner they came to be owners to the extent of 1/2 share of the suit land. Though it is well settled that Courts below while adjudicating claim of the parties cannot go beyond the pleadings, but, in the instant case learned first appellate Court while holding the defendants to be owners to the extent of 1/2 share of the suit land heavily placed reliance on Ex. P-1. True, it is, that perusal of Ex. P-1 i.e. Misslahaquiat suggests that the plaintiff Munshi Ram had relinquished his 1/2 share of suit land by way of 'Azadinama' in favour of defendants vide mutation No. 148, dated 12.7.1968. The aforesaid factum of having effected mutation in favour of the defendants further gets corroborated by Ex. DX, which was subsequently placed on record by the defendants during the pendency of first appeal, perusal of which suggests that on 12.7.1968 mutation Ex. DX was attested in favour of defendants on the basis of 'Azadinama'/relinquishment qua the immovable property. Now, question which requires to be considered by this Court is that, whether mutation could be attested in favour of defendants on the basis of oral 'Azadinama' or statement having been made by the plaintiff at the time of alleged mutation. In the instant case, there is no document led on record by either of the parties suggestive of the fact that the plaintiff, while relinquishing his 1/2 share in the suit property, had executed registered relinquishment deed, if any.

22. At this stage, this Court deems it fit to take note of Sections 17 and 49 of the Registration Act, 1908, which is reproduced hereinbelow:-

"17. Documents of which registration is compulsory.--

(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:]

Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

[(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.]

(2) Nothing in clauses (b) and (c) of sub-section (l) applies to--

(i) any composition deed; or

(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or

(vii) any grant of immovable property by [Government]; or

(viii) any instrument of partition made by a Revenue-Officer; or

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

[(xa) any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or]

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer. 4[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.]

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered...."

Section 49 of the Registration Act, 1908 reads as under:-

"49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 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: 1[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 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 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]..."

23. Perusal of aforesaid Section 17 clearly suggests that document/instrument, which intends/purports to create right/title to an immovable property having value of Rs. 100/- should be registered. Similarly, perusal of Section 49 of the Act suggests that documents, which are required to be registered under Section 17 shall not affect any immovable property; comprised therein or confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registered.

24. After having carefully perused aforesaid provisions of law, this Court is of the view that Ex. P-1 as well as Ex. DX, which were admittedly not registered documents, as prescribed/defined under Section 17 of the Act, could not be read in evidence by learned first appellate Court, especially, in the absence of any registered relinquishment deed made by the plaintiff in favour of defendant No. 1.

25. As per Section 17 of the aforesaid Act, any document or instrument, which purports or intends to create title should be registered and in case same is not registered, it would not affect any immovable property comprised therein or moreover it could not be allowed as evidence of any transaction affecting such property.

26. In this regard, this Court deems it fit to rely upon the judgment passed by Hon'ble Apex Court in Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and Another, MANU/SC/1021/2009 : (2009) 7 SCC 363, wherein the Hon'ble Apex Court has held as under:-

"15. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.

16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs. 100 and upwards to or in immovable property.

17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed.

18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.

(pp. 367-368)

27. Perusal of aforesaid law, having been laid by Hon'ble Apex Court, clearly suggests that title of immovable property, having value of more than Rs. 100/-, can only be transferred by registered documents, as provided under Section 17 of the Registration Act, 1908. Similarly, it also emerge from the aforesaid judgment that no document as required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property unless it is registered.

28. Reliance is also placed upon SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, MANU/SC/0836/2011 : (2011) 14 SCC 66, wherein the Hon'ble Apex Court has held as under:

"11. Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered document (which is compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to section 49 of the Registration Act.

(p. 71)

29. In M/s. Kamakshi Builders vs. M/s. Ambedkar Educational Society & Ors., MANU/SC/2681/2007 : AIR 2007 SC 2191, the Hon'ble Apex Court has held:

"24. Acquiescence on the part of Respondent No. 3, as has been noticed by the High Court, did not confer any title on Respondent No. 1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred.

25. It is now well-settled that time creates title.

26. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.

27. It may be true that Respondent No. 1 had constructed some buildings; but it did so at its own risk. If it thought that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn."

(p. 2196)

30. In Satyawan and others vs. Raghubir, AIR 2002 Punjab and Haryana, 290, the Hon'ble Court has held as under:-

"18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by "A" with property "Y" belonging to "B". In this manner, the property is received in exchange of property. There is transfer of ownership of one property for the ownership of the other. It was submitted that prior to when decree dated 20.10.1992 was not passed, there was no title of "A" in property "Y" and there was no title of "B" in property "X". It was submitted that for the first time, the right was created in immovable property by decree and, therefore, that decree required registration. It was submitted that if there was no pre-existing right in the property worth more than Rs. 100/- and the right was created in the immovable property for the first time by virtue of decree, that decree would require registration. In my opinion, oral exchange was not permissible in view of the amendment of Section 49 of the Registration Act brought about by Act No. 21 of 1929, which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act falls within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and do not affect any such immovable property. Transaction by exchange which required to be affected through registered instrument if it was to affect any immovable property worth Rs. 100 or more."

(p. 297)

31. In the instant case, though this Court is of the view that learned first appellate Court exceeded its jurisdiction by creating new case for defendants while placing reliance upon Ex. P-1 and Ex. DX, more particularly, when no such plea of 'Azadinama' was ever raised/taken by the defendants in the pleadings as well as evidence adduced before the trial Court, but even then if findings returned by learned first appellate Court qua entitlement of defendants to 1/2 share in the suit property on the basis of aforesaid document is examined and tested in the light of aforesaid provisions of Registration Act, 1908, same cannot be held to be valid and in accordance with law. There is no relinquishment deed adduced on record by the defendants to prove their claim with regard to their having acquired 1/2 share in the suit land and as such learned first appellate Court erred in while placing reliance upon Ex. P-1, whereby, on the basis of oral Azadinama/relinquishment deed, 1/2 share in the suit land has been ordered to be mutated in the name of defendants.

32. In the instant case, in view of aforesaid discussion having been made hereinabove, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land.

33. Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of the land can only be effected by the authority as prescribed under Sections 122 and 123 of the H.P. Land Revenue Act. Moreover, partition deed Ex. DW-3/A, which was prepared on 15.5.1994, could not be prepared because admittedly the defendants had no pre-existing title in the suit land, as stands duly proved on record. Defendant himself has admitted that Munshi Ram was absolute owner in possession of the land which he had acquired as Nataur.

34. Since this Court has already come to the conclusion, on the basis of aforesaid provision of law as well as material available on record, that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex. P-1 and Ex. DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land and as such judgments relied upon by the learned counsel representing the defendants with regard to attestation of mutation in favour of defendants has no bearing in the present case and as such same are not discussed herein. Substantial question of law is answered accordingly.

35. Consequently, in view of detailed discussion made hereinabove, this Court sees valid reason to interfere in the judgment passed by first appellate Court, which is apparently not based upon the proper appreciation of evidence as well as law. Accordingly judgment passed by learned first appellate Court is quashed and set aside and that of the learned trial Court is restored. There shall be no order as to costs. Interim order, if any, stands vacated. All miscellaneous applications are disposed of.




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