1 S.A. No. 2472/2005 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 2472/2005 ....APPELLANT : Shri Udai Singh, S/o Late Phool Singh, R/o Rampur, Ram Nagar, Tehsil and District Jabalpur. -Versus- ....RESPONDENT : Gokul Prasad Kewat, S/o Shri Heeralal Kewat, Occupation Govt. Servant, R/o Behind Railway Pump, Ram Nagar, Rampur, District Jabalpur ................................................................................................ Appellant - Shri R.B. Pandey, Advocate Respondent - Shri S.K. Karan, Advocate. ................................................................................................ J U D G M E N T (14/09/2011) 1. This is defendant's second appeal having lost from both the Courts below. 2. The plaintiff filed a suit for declaration and injunction in respect of the suit property which is the subject matter of the suit and the description whereof has been mentioned in the plaint. According to the plaintiff, he purchased the suit property vide registered sale deed dated 20.11.2001 having Municipal No. 140/13/A/3, Khasra No. 31/30 although on 2 S.A. No. 2472/2005 account of error Khasra no. 27/28 has been mentioned in the sale deed. The area which he purchased is 1575 sq. ft. and the suit property is 17.5 ft x 45 ft.= 787.5 sq. ft. of Patwari Halka No. 28. The plaintiff is owning and possessing the suit property. The house of defendant Udai Singh is on the northern side of plaintiff and he is trying to take possession of area 2 ft x 30 ft. by constructing a wall and he also possessed the same and hence it has been prayed that the plaintiff be declared owner of the suit property as well as a decree of injunction to remove the illegal construction be also granted in favour of the plaintiff. 3. The defendant filed written statement refuting the plaint averments of the plaintiff. 4. The learned Trial Court framed necessary issues and after recording evidence of the parties came to hold that the suit of plaintiff is liable to be decreed and accordingly decreed the same. The first appeal which was filed by the defendant was dismissed by the impugned judgment and decree. 5. In this manner, this second appeal has been filed by the appellant-defendant. 3 S.A. No. 2472/2005 6. This Court on 9.4.2008 admitted the appeal on the following substantial question of law:- “Whether the appellant is entitled to protect his possession on the basis of document (Ex. D/1) by which the disputed land was sold by Sunder Lal in favour of the appellant?” 7. The contention of Shri R.B. Pandey, learned counsel for the appellant is that the then owner Sunder Lal executed a document Ex. D/1 on 21.1.1985 in favour of plaintiff and the suit property was sold to him for a consideration of Rs.400/- and therefore by this sale deed he is possessing the suit property as owner and therefore by virtue of this document Ex. D/1 he can protect his possession since it was sold to him by the then owner Sunder Lal. In support of his contention learned counsel has placed reliance on the Single Bench decision of this Court Sayyed Ibne Hasan V. Mehtab Latafat Husain 1960 M.P.L.J. 879 and also Angara Bhojani and others V. Kanhei Misra and another AIR 1981 Orissa 93 and Secy. State and another V. Mahant Harcharan Das and others AIR 1926 Oudh 98. 8. On the other hand, Shri Karan, learned counsel for the respondent submitted that the sale of disputed property is more than Rs.400/- and therefore the same cannot be 4 S.A. No. 2472/2005 said to be a sale in view of Section 54 of the Transfer of Property Act, 1882 and learned two Courts below rightly came to hold that plaintiff is the owner of the suit property and decreed the suit. 9. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law framed:- 10. On bare perusal of document Ex. D/1 this Court finds that one Sunder Lal sold the disputed property to the defendant for a consideration of Rs.400/-. It is well settled in law that sale of immovable property of Rs.100/- and above can only be made by a registered document and in this context Section 54 of the Transfer of Property Act, 1882 is quite clear. Since the immovable property (disputed land) has been sold for a consideration of Rs.400/- and further because this sale deed is not a registered document, I am of the view that the same is inadmissible in nature. Apart from this since the defendant has also filed counter claim on the basis of this document (Ex. D/1) and it has been prayed that he be declared to be the owner of the suit property and the factum of ownership has been denied by the plaintiff in replying the counter claim, it was incumbent 5 S.A. No. 2472/2005 upon the defendant to prove the title of his vendor by examining him. Admittedly Sunder Lal who is the vendor of plaintiff has not been examined and therefore it cannot be said that valid title was conveyed to the defendant by virtue of sale deed (Ex. D/1). The decision of Sayyed Ibne Hasan (supra) placed reliance by learned counsel for the appellant is not applicable because in that case the consideration was Rs.42/- only and therefore the sale deed was not required to be registered. In the decision of Angara Bhojani (supra) it was held by the learned Single Bench of Orissa High Court that title cannot be transferred to the plaintiff by unregistered sale deed and therefore this case will not help the appellant. The decision of Mahant Harcharan Das (supra) is also not applicable because in that case execution of gift deed was admitted and because it was unregistered, the Oudh High Court held that for collateral purpose it can be seen. However, in the present case the defendant has not examined his vendor Sunder Lal and therefore whether Sunder Lal was the owner or not, this is not at all proved. 11. The substantial question of law is thus answered that appellant is not entitled to protect his possession on the 6 S.A. No. 2472/2005 basis of the document (Ex. D/1) by which the disputed land was alleged to be sold by Sunder Lal in favour of the appellant. 12. Resultantly, this appeal fails and is hereby dismissed with no order as to costs. (A.K. SHRIVASTAVA) Judge rao