RSA No.1732 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1732 of 2009 (O&M) Date of Decision: 29.05.2009 Paramjit Kaur & Ors. ..Appellants Vs. Avtar Singh & Anr. ...Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Jai Bhagwan, Advocate, for the appellants. Mr.R.K.Singla, Advocate, for respondent No.1. Ms.Sushma Chopra, Advocate, for respondent No.2. --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgment and decree dated 3.3.2009 passed by the learned courts below dismissing the suit filed by the plaintiff for permanent injunction. The plaintiff brought a suit for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit RSA No.1732 of 2009 2 property on the grounds that the plaintiff and his brothers purchased the possessory rights of the taur in dispute from Gurdip Singh son of Gulzar Singh measuring 6 marlas on 3,8.1998 and paid Rs.60,000/- and possession was delivered to the plaintiff. The plaintiff also purchased 2 marlas of land from Mohan Singh son of Gulzar Singh for a sum of Rs.15000/- and document in the shape of agreement was executed. The plaintiff also purchased 1½ marlas of land adjoining the plot already purchased by the plaintiff from Balbir Singh son of Gulzar Singh on 20.12.2001 for a sum of Rs.35000/-. The plaintiff claimed that plaintiff/appellants were in possession, and that defendants had no right to interfere in the possession of the plaintiff. On notice suit was contested. Besides, taking preliminary objections it was pleaded that the plaintiff had no locus standi to file the present suit. Plea of estoppel was raised. It was also claimed that the suit was bad for mis-joinder and non-joinder of necessary parties. On merit, averments made in the plaint were denied. Documents relied upon were said to be forged and fabricated, and executed without consideration and any legal right. The suit property was said not to be evacuee property. Possession of the plaintiff was also denied. It was claimed that the defendants were tethering their cattle in the property in dispute and also stored their Dher. Plaintiff and his brothers were said to be never in possession of the suit property. Learned courts below on appreciation of evidence recorded a concurrent finding of fact that the plaintiff/appellants were not in possession RSA No.1732 of 2009 3 of the property, therefore, not entitled to injunction. One of the grounds for rejection of the case set up by the plaintiff/appellants was that the documents Ex.P.1 to P.3 i.e. the agreements to sell could not be read in evidence for want of registration. The learned courts further held that the documents were not even proved in accordance with law. Learned counsel for the appellants contends that this appeal raises the following substantial questions of law for consideration by this court:- 1. Whether the learned courts below committed an error in rejecting the admissible evidence, for want of registration? 2. Whether the findings recorded by the learned courts below are the outcome of misreading of evidence, thus perverse? In support of the substantial questions of law raised, learned counsel for the appellants vehemently contended that documents Ex.P.1 to P.3, proved on record, showed that the plaintiffs had purchased the possessory right, therefore, their possession was duly proved. The judgment and decree, therefore, was the outcome of misreading of evidence. This plea of the learned counsel for the appellants cannot be accepted. The question involved would be whether in the absence of any title in the property the person could sell only possessory rights to transfer any interest in the property. However, this question need not be gone into, in the present case as the plaintiff failed to prove the possession of his RSA No.1732 of 2009 4 vendor or their possession, therefore, no fault can be found with the judgment and decree passed by the learned courts below. Learned counsel for the appellants contended that the learned courts below committed an error in rejecting the documents Ex.P.1 to P.3 for want of registration. Argument raised was that as it was not a sale deed, therefore, it did not require registration, as only possessory right was transferred. In support of this contention learned counsel for the appellants placed reliance on the judgment of Hon'ble Andhra Pradesh High Court in the case of Dadi Reddy Sivanarayana Reddy Vs. Kasi Reddy Chinnamma 2001 (1) CCC 610, wherein it was held as under:- “16. It is well settled that where the document is to be construed, the document itself should be looked into to gather the intention of the parties. The document has to be construed as a whole and no clause can be read in isolation in an attempt to resort to extraneous inquiry as to what the parties thought or intended. If there is any ambiguity in the language employed it is however permissible to look to the surrounding circumstances to determine what was intended. The document in question purports to convey immovable property to the plaintiff with all rights of sale, gift etc. One should ask a question whether on the basis of the suit document the plaintiff can validly convey title of the property to third parties, that is to say whether the plaintiff has a marketable title vesting in him (see Section 49(a) and whether the agreement has extinguished RSA No.1732 of 2009 5 the right in the defendant. As per Sec. 17 (2)(v) of the Act when a document creates right, title or interest in one party and extinguishes any right, title or interest in the other party, then only it is registrable. In this case, the heading as well as the last clause in the agreement describes the document as sale agreement. It further says that the Vendor shall execute another document at the Office of the Sub-Registrar as and when required. In the light of these compelling circumstances, the clause that vendor sold the property to be enjoyed by the plaintiff and his heirs does not conclusively extinguish the rights in defendant and hence does not require registration. Not only explanation to section 17 but proviso to Section 49 of the Registration Act comes into play.” On consideration of the matter, this court finds that this judgment goes against the appellants. Reading of the documents Ex.P.1 to P.3 shows that the interest in immovable property worth more than Rs.100/- was transferred by way of Exs.P.1 to P.3. In case, for the sake of argument, it is held that possessory right could be transferred then also the documents were required to be registered, as the vendor of the plaintiff was not to do anything further in pursuance to the agreements Ex.P.1 toP.3. Learned lower appellate court was, therefore, right in rejecting Exs.P.1 to P.3 for want of registration. Any document which transfers right in immovable property worth more than Rs.100/- can only be by a registered deed. RSA No.1732 of 2009 6 It is also the contention of the learned counsel for the appellants that Ex.PX i.e. report of local commissioner showed the plaintiff/appellants were in possession. This plea also deserves to be rejected as the local commissioner did not record the finding qua possession of the plaintiffs but merely described the situation at the spot wherein it was alleged that bricks and bajri etc. were lying. It is well settled law that merely placing of some bricks or bajri cannot lead to a conclusion that the property is in possession of a person as it is to be treated as vacant land, possession of which goes with ownership. The substantial questions of law raised are, therefore, answered against the appellants. The appeal is accordingly dismissed in limine. 29.05.2009 (Vinod K.Sharma) rp Judge