CR No.3006 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3006 of 2006 (O&M) Date of Decision: 26.05.2010 Sucha Singh ....Petitioner Vs. Jaswant Singh & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.A.K.Chopra, Sr. Advocate, with Mr.Chanan Singh & Mr.Rajneesh Chauhan, Advocates, for the petitioner. Mr.Chetan Mittal, Sr. Advocate, with Mr.J.S.Gill, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This revision by the plaintiff/petitioner under Article 227 of the Constitution of India, is directed against the judgment dated 8.05.2006 CR No.3006 of 2006 2 passed by the learned Additional District Judge, Ludhiana, vide which the judgment of the learned trial court on an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (for short the Code), was reversed and the plaintiff/petitioner was denied the relief of temporary injunction. The case pleaded by the plaintiff/petitioner was that he is owner and in exclusive cultivating possession of land measuring 47 Kanals 12 Marlas, situated in the village Burj Kacha, Tehsil Samrala, District Ludhiana. The plaintiff/petitioner is settled in United States since last number of years and is a non-Resident Indian. In the absence of the plaintiff-petitioner, Ajmer Singh, defendant No.2, tried to occupy the land illegally. The petitioner sought permanent injunction against the defendants restraining them from interfering in his possession. Suit was contested on various grounds, wherein the defendants set up a plea of agreement to sell dated 17.11.2004 vide which the petitioner-plaintiff had agreed to sell the disputed land at the rate of Rs.4,00,000/- (Rupees four lacs only) per acre. He also relied on endorsement dated 9.5.2005, executed by Amarjit Singh, the then attorney of the plaintiff, on entering into agreement dated 20.11.2004 pertaining to different land under which he claimed that the possession of the land in dispute was handed over to him in part performance of agreement to sell. The learned trial court allowed the application under Order 39, Rules 1 and 2 of the Code by holding, that a prima facie case was made out in favour of the plaintiff/petitioner as admittedly, he was the owner of the CR No.3006 of 2006 3 property in dispute, as the agreement set up by the defendant/respondents itself was admission of this fact. The learned trial court further held, that mere agreement to sell, did not confer any title on the intending vendee as the remedy is to seek specific performance of the agreement. The learned trial court also held that as per the terms of the agreement dated 17.11.2004, possession of the suit property was not delivered to the vendee, and it was agreed to be delivered at the time of execution of the sale-deed. The learned trial court further held that the plea of the defendant/respondent that he had taken possession on the subsequent date, was a disputed question of fact, which was yet to be established. The learned trial court further held, that if any possession was handed over why no endorsement was made on the agreement to sell executed qua disputed land i.e. land at Burj Kacha? The learned trial court also held, that balance of convenience was in favour of the plaintiff-petitioner and against the defendants, further that the plaintiff was likely to suffer irreparable loss and injury, in case injunction was not granted. The defendant/respondents preferred an appeal. Learned lower appellate court reversed the finding of the learned trial court by recording, that question to be decided was “Whether the possession of the property compromised in agreements to sell dated 17.11.2004 and 20.11.2004, was handed over to defendant No.2 or not? The learned lower appellate court held, that though it was stipulated in the agreement, that the possession was to be handed over at CR No.3006 of 2006 4 the time of sale deed but there was endorsement, dated 15.1.2005, whereby the date of execution of sale-deed was extended qua agreement to sell dated 20.11.2004 (not in dispute in this case). It was mentioned, that the possession of the land of village Burj Kacha (subject-matter of land in dispute) was also handed over including that of land of villages Noorpur and Ratipur covered under agreement dated 20.11.2004. Possession was said to have been taken through Mukhtiare-e- aam, of the plaintiff. The learned lower appellate court also held, that in a case filed by Smt. Malkiat Kaur, for maintenance, an admission was made by the attorney of the plaintiff, that the possession of the property was handed over to Ajmer Singh Dhillon, defendant No.2. The learned lower appellate court, held that this amounted to suppression of material facts, which dis-entitled the plaintiff/petitioner to discretionary relief of injunction. The learned lower appellate court further held, that principal was bound by the acts of his attorney. The application for temporary injunction was dismissed, by accepting the appeal. Mr.A.K.Chopra, learned senior counsel appearing on behalf of the plaintiff/petitioner contended, that the pleadings and documents on record showed, that the plaintiff/petitioner purchased the property in dispute by way of three different sale-deeds i.e. land measuring 47 Kanals 12 Marlas. Contention of the learned senior counsel was, that in the CR No.3006 of 2006 5 agreement dated 17.11.2004, it was specifically mentioned that the possession was to be handed over to the vendee, at the time of the execution sale-deed. Even in the subsequent agreement, the possession was agreed to be handed over only on execution of the sale-deed, on receipt of total sale consideration. Learned senior counsel for the petitioner also contended, that in the revenue record i.e. Jamabandis and Khasra Girdawaris, the plaintiff/petitioner was shown to be in possession, and the attempt made by the defendants to get entries in Khasra Girdawaris changed, failed before the Revenue Authority. It was the contention of the learned senior counsel, that the learned trial court, wrongly held, that the petitioner was guilty of concealment of facts, though there was material on record to show that the attorney of the plaintiff had joined hands with the defendants, and acted against the interest of the plaintiff, for the acts of the attorney, his power of attorney stood revoked, though for technical reason it was revoked on later date. The contention, therefore, was that once the plaintiff was admittedly owner and proved to be in possession, in the revenue record, there was no reason for the learned lower appellate court, to reverse the judgment, passed by the learned and trial court. The learned senior counsel contended, that endorsement dated 9.5.2005, on which reliance was placed, cannot be read in evidence for want for registration, and further for the reason, that it was written at the CR No.3006 of 2006 6 back of agreement dated 20.11.2004, which was with respect to another land and was, entered by the attorney, to harm the interest of the petitioner. It was also contended, that defendant No.2, by using influence even got a false case registered against the mother and sister of the plaintiff/petitioner, which was ultimately found to be false. Cancellation report stands submitted by the police. Mr.Chetan Mittal, learned senior counsel appearing on behalf of the respondents, on the other hand contended, that though the agreement to sell under which possession is given to the vendee, requires registration and cannot be read in evidence, but it can be seen for collateral purposes. The contention, therefore, was, that as per the endorsement it was proved that the possession was handed over to defendant No.2, therefore, no fault can be found with the judgment of the learned lower appellate court. In support of this contention, that endorsement could be read for collateral purposes reliance was placed on the judgment of this court in the case of Balraj Singh Vs. Pritam Singh 2007(2) RCR (Civil) 714. Reliance in support of this contention was also placed on the judgment of Hon'ble Supreme Court in the case of S.Kaladevi Vs. V.R.Somasundaram & Ors. JT 2010 (3) SC 610, wherein again it was held, that though in view of Section 49 of the Registration Act, the document which is required to be registered, if not registered, shall not affect any immovable property comprised therein, nor such document can be received in evidence, but the document can be received as an evidence to prove the collateral transaction, which is not required to CR No.3006 of 2006 7 be effected by the registered document. Reliance was also placed on the judgment of Hon'ble Delhi High Court in the case of Arvindra Kumar Singh Vs. Smt.Hardayal Kaur and Others 2005 (3) RCR (Civil 124), wherein the Hon'ble Delhi High Court was pleased to lay down, that where the plaintiff is in possession, his suit cannot be rejected only on the ground, that the agreement was not registered. Finally, learned senior counsel for the respondents contended, that in the Revision Petition No.5842 of 2001 titled Malkiat Kaur Vs. Ajmer Singh & Anr. Decided 10.5.2010, this court has not taken note of the delivery of possession without registration, but did not accept the plea raised by the petitioner. On the basis of contentions referred to above, it was contended that the judgment passed by the learned lower appellate court does not call for any interference, in exercise of revisional jurisdiction. On consideration, I find force in the contentions raised by learned counsel for the plaintiff/petitioner. In the case in hand it is proved, that the plaintiff/ petitioner is owner of the property by virtue of registered sale-deed executed in his favour. It is also proved by way of revenue record, that possession was that of plaintiff/petitioner and attempts made by the defendant/respondents to get the revenue entries changed, failed. The endorsement made on agreement to sell, under which the possession was claimed as part performance of agreement to sell, could not CR No.3006 of 2006 8 be read in evidence for want of registration. This view finds support from the judgment of the Hon'ble Supreme Court in the case of Suraj Lamp & Industries (P) Ltd. Thru DIR Vs. State of Haryana & Anr. 2010(1) RCR (Civil) 46, wherein Hon'ble Supreme Court has been pleased to lay down as under : “7. What we are concerned is extension of the concept of such 'Power of Attorney Sales' by execution of SA/GPA/Will with reference to freehold properties. 8. 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. 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. 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. CR No.3006 of 2006 9 Registration of a document gives notice to the world that such a document has been executed. 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 the legal importance or relevance by recording them, where people may see the record and inquire 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.” CR No.3006 of 2006 10 Similar view is expressed by Hon'ble Andhra Pradesh High Court in the case of Sanjeeva Reddi Vs. Johanputra Reddi 1972 Andhra Pradesh 373, wherein the Hon'ble Andhra Pradesh High Court has been pleased to lay down as under: “9. While considering the scope of Section 35 of the Indian Stamp Act we cannot bring in the effect of non-registration of a document under Section 49 of the Indian Registration Act. Section 17 of the Indian Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non- registration of the document which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an CR No.3006 of 2006 11 unstamped instrument is admitted for a collateral purposes, it would amount to receiving such a document in evidence for a purpose which section 35 prohibits. There is nothing in the case of B.Rangaiah V. B.Rangaswamy, (1970) 2 Andh. WR 181 which supports the contention of the petitioner. That was a case as pointed out by Kappuswami, J., where there were two instruments though contained in one document one a settlement in favour of the 4th defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein It was for that reason that the learned Judge said that Sec. 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matters would not at all be chargeable under the Act as in the case before him.” The possession claimed on the basis of endorsement to protect possession, therefore, cannot be said to be for collateral purposes. Learned lower appellate court was wrong in non-suiting the plaintiff/petitioner on the ground, that there was an admission, that possession was handed over to defendant No.2, as the plaintiff/petitioner cannot be said to be guilty of concealment of facts, nor it could be treated to be admission, because of the fact that attorney of Amarjit Singh acted against the interest of the principal, specially when he was aware that the CR No.3006 of 2006 12 steps are being taken to revoke his authority. The fact also cannot be ignored, that attempt was also made to falsely implicate the mother and sister of the petitioner, in order to put pressure. The FIR was found to be false and cancellation report was submitted. The defendant/respondents also cannot take any benefit of judgments on which reliance was placed, as this court in the case of Balraj Singh Vs. Pritam Singh (supra) held that the document which is not in dispute can be seen for collateral performance, but endorsement was in dispute. The document can be relevant at the time of leading evidence of possession, but it could not be read in evidence for forming a prima facie view, while deciding application under Order 39, Rules 1 and 2 of the Code. The judgment of Hon'ble High Court of Delhi in the case of Arvindra Kumar Singh Vs. Smt.Hardayal Kaur and Others (Supra) is also not relevant, as the question considered in that case was regarding rejection of the plaint. Judgment of Hon'ble Supreme Court in the case of S.Kaladevi Vs. V.R.Somasundaram & Ors. (supra) on which reliance was placed, does not help the case of the petitioner, as the Hon'ble Supreme Court categorically held, that unregistered document, cannot be read into evidence to prove the contents of document for want of registration, but only for collateral purposes. The endorsement dated 9.5.2010 was not pressed into service for proving the possession, but was relied upon to prove the plea that in CR No.3006 of 2006 13 part of performance of agreement, the possession was handed over. The agreement to sell under which possession is handed over, is required to be compulsorily registered. Similarly, any document/ endorsement which though written subsequently on the agreement of sale would be in furtherance of the said object, which would also need registration. Therefore, the endorsement dated 9.5.2010, could not be read in support of possession of defendant No.2, against positive stipulation in agreement to sell, as also the revenue record. For the reasons stated, the judgment of the learned lower appellate court being perverse, deserves to be set aside, and that of the learned trial court restored. Ordered accordingly. Petitioner shall also be entitled to the costs of this revision petition which are assessed at Rs.10,000/- (Rupees -ten thousand only). 26.05.2010 (Vinod K.Sharma) rp Judge