RSA No. 1010 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1010 of 2010 (O&M) Date of Decision: 25.4.2011. Kesar Singh .......Appellant Vs. Piara Lal @ Piara ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. G.S.Punia, Advocate for the appellant. Mr. N.K.Verma, Advocate for the respondent. ..... SABINA, J. Plaintiff had filed a suit for permanent injunction. The case of the plaintiff in brief was that he was in possession of the suit property bearing Khasra no. 195 (0-2) situated in village Pabri. The suit property was originally owned by the Panchayat and was allotted to landless owners during consolidation. Defendant had no concern with the suit property but was threatening to raise construction over the same. Hence, the suit for permanent injunction was filed by the plaintiff. Defendant, in his written statement, averred that the plaintiff had sold the suit property to the plaintiff vide agreement to sell dated 18.8.1981 and had handed over the possession of the same to the defendant. RSA No. 1010 of 2010 (O&M) -2- On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is in possession of the property in dispute? OPP 2. Whether plaintiff is entitled to injunction as prayed for? OPP 3. Whether plaintiff has no cause of action to file the present suit? OPD 4. Whether plaintiff has not come to the court with clean hands? OPD 5. Whether full description of the property has not been given? OPD 6. Whether suit of the plaintiff is wrong and frivolous? OPD 7. Whether suit of the plaintiff is not legally maintainable? OPD 8. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 11.8.2008, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 7.4.2009. Hence, the present appeal by the defendant. Learned counsel for the appellant has submitted that the sale deed/agreement (Ex.D-1) could be taken in consideration by the courts below. Learned counsel has submitted that as per Section 49 of the Registration Act, 1908 (hereinafter referred as Act), an unregistered document affecting RSA No. 1010 of 2010 (O&M) -3- immovable property could be read in evidence qua any collateral transaction not required to be affected by registered document. In support of his argument, learned counsel for the appellant has placed reliance on 'Bhaiya Ramanuj Pratap Deo versus Lalu Maheshanuj Pratap Deo and others, AIR 1981 Supreme Court 1937'. Para 22 of the said judgment reads as under:- “22. As regards the second reason, the argument is based on Section 17 read with Section 49 of the Registration Act. Sec. 17 of the Registration Act enumerates the documents requiring registration. Section 49 of the Registration Act provides that 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, (b) ...................., (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of Section 17 of the Registration Act and as the document was not registered it cannot be received as evidence of any transaction effecting such property. Proviso to Section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument.” Learned counsel for the respondent has submitted RSA No. 1010 of 2010 (O&M) -4- that plaintiff was in possession of the suit property. Defendant had no concern with the suit property. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Section 49 of the Act is read as under:- “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 (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: [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.] There is no quarrel with proposition of law that an unregistered document affecting immovable property and required by the said Act or the Transfer of the Property Act to be RSA No. 1010 of 2010 (O&M) -5- registered may be received as evidence of a contract of any collateral transaction not required to be effected by registered document. Appellant had claimed that he had become owner in possession of the suit property on the basis of agreement/sale deed (Ex.D-1). However, the said sale deed is not a registered document. As per Section 17 of the Act, any document purporting to create any right, title or interest in an immovable property valuing more than `. 100/- requires compulsory registration. In the present case, the appellant wanted to prove his title and possession on the basis of Ex.D-1 and the same cannot be said to be a collateral purpose and hence, could not draw any benefit from the proviso to Section 49 of the Act. The argument raised by learned counsel for the appellant that the case of the plaintiff was covered by proviso to Section 49 of the Act is, thus, misconceived and is not tenable. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as it is based on different facts. Plaintiff was in possession of the suit property as per the revenue record. A presumption of truth is attached to the entries in the jamabandi. Defendant, on the other hand, had failed to rebut the said presumption. Defendant had failed to establish that he had purchased the suit property from the plaintiff and was in possession of the suit property on the basis of the sale deed. Plaintiff was in possession of the suit property and was liable to protect the same. In these circumstances, the courts below rightly decreed the suit of the plaintiff. RSA No. 1010 of 2010 (O&M) -6- No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE April 25, 2011 Gurpreet