THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No. 5165 of 2009 (Dated : 02-03-2010) Between: Sri T.L.N.Reddy and others …Petitioners/ Defendants A n d T.Savitri W/o Sri T.Naresh Kumar Hyderabad ….Respondent/ Plaintiff THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No. 5165 of 2009 ORDER: This revision is directed against the order dated 11.9.2009 passed in O.S.No.310 of 2005 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder the learned Additional Chief Judge, sustained the objection raised by the plaintiff with regard to admissibility of the document sought to be received in evidence on behalf of defendants 2 to 5. 2. Background facts in a nutshell leading to filing of this revision by defendants 2 to 5 in O.S.No.310 of 2005 are:- One Padala Ammi Reddy was a former M.L.A. He was a member of Sri Venkateswara co-operative House Building Society for A.P. Legislatures Ltd (hereinafter referred to as `the Society’). He was allotted Plot No.112/A by the Society being its member. The Society executed a registered sale deed dated 30.6.1984 in his favour. He obtained permission, vide sanction plan dated 07.05.1986 from M.C.H for construction of ground and first floor and a room in the second floor and completed the structural work of ground floor as on the date of his death, i.e., on 16.7.1986. He executed a Will dated 9.5.1986. As per the said Will, T.Savitri, the plaintiff became the lawful owner of the said property. As on the date of the death of Ammi Reddy, the plaintiff who is his daughter was aged 19 years and was a student. Brothers of plaintiff were minors and their mother was aged about 39 years. According to the plaintiff, defendants 1 and 2 took control of all the properties with documents of title dated 30.06.1984. The defendants 1 and 2 constructed first and second floors and while living in the first floor, the second floor was permitted to be occupied by the defendant No.3 with her family and got the first floor mutated in the name of defendant No.1 and second floor in the name of defendant No.3. Defendant No.3 having acquired a property of her own vacated the second floor of the plaintiff’s property in the year 2000. Defendant No.3 instead of handing over possession of the second floor to the plaintiff inducted defendants 4 and 5 in the second floor though both of them had their own houses at Hyderabad. The plaintiff, her mother and her brothers have always been under the impression that the defendants are acting for the welfare and benefit of the plaintiff, her mother and brothers. The plaintiff requested the defendants to vacate the premises and handover vacant possession of the same. The occupation of the premises by the defendants 1, 2, 4 and 5 is only permissive one and they have no right, title or interest over the same. The plaintiff revoked the permission to the defendants by way of notice dated 08.08.2005 and called upon them to vacate and handover vacant possession of the premises in their occupation on or before 31.8.2005. The plaintiff also claimed damages at the rate of Rs.20,000/- per month for use of first and second floors from 01.9.2005 till the date of handing over vacant possession of the same. Since the defendants refused to vacate the premises in their occupation, the plaintiff filed suit for recover of possession and perpetual injunction and for future damages and for possession of Documents of title. The reliefs sought for by the plaintiff in the suit are:- “ a) To direct the defendant No.1 and 2 to vacate and hand over vacant possession of First Floor portion bearing H.No.8-2- 293/82/L/112/A/1 described hereunder in `B’ schedule and to direct the defendant No.4 and to vacate and handover vacant possession of Second Floor portion bearing H.No.8-2- 293/82/L/112/A/2 described hereunder in `C’ schedule to the plaintiff. b) To direct the defendant No.1 and 2 to pay a sum of Rs.20,000/- as damages for use and occupation of First Floor portion described hereunder in `B’ schedule from the date of filing of the suit up to the date of vacating and handing over vacant possession to the plaintiff on payment of additional court fee. c) To direct the defendant No.4 and 5 to pay a sum of Rs.15,000/- as damages for use and occupation of Second Floor portion described hereunder in `C’ schedule from the date of filing of the suit up to the date of vacating and handing over vacant possession to the plaintiff on payment of additional Court fee. d) To grant perpetual injunction restraining the defendants, their men and subordinates or any one claiming through or under them from encumbering or making any additions or alterations or changing the nature of Plaint `B’ and `C’ schedule property described hereunder. e) To direct the defendant No.1 and 2 to handover possession of Original Sale Deed with Plan dated 30.6.1984 bearing document No.1489 of 1984 executed by Sri Venkateshwara Co- opearative House Building Society for A.P.Legislatures Ltd., to the plaintiff. f) To award costs of the suit and g) To pass such other relief or reliefs as the Hon’ble Court may deem fit and proper in the circumstances of the case” 3. Defendants 1, 2, 3 and 5 filed written statement. The sum and substance of the written statement is the first floor belongs absolutely to defendants 1 and 2 while the 2nd floor belongs to 3rd defendant and her family. The defendants are in occupation of the said floors as absolute owners thereof, having constructed with their own money under the terms and conditions of the deed of licence. The licence deed dated 27.11.1986 was voluntarily executed by the plaintiff and her mother in her individual capacity as well as in the capacity of guardian for her two minor sons. The same is evident from the letter of the plaintiff dated 02.08.2000 addressed to the defendant No.1 and singed in her nick name as “Nani”. Therefore, the question of said License Deed not conferring any right, title or interest in the said two floors in favour of defendants 1 and 3 does not arise. Paragraph 13 of the written statement needs to be noted and it is thus:- “ The defendants submit that under the said Deed of License, permission was given to defendants No.1 and 3 to raise the construction on the ground floor of the said house with their own monies. The permission is therefore only with respect to raising structures on the ground floor and has nothing to do with ownership rights of the defendant Nos.1 and 3 and over the structures so raised. In that view of the matter the plaintiff cannot say that the occupation of the portions of “her property” by defendants 1, 2, 4 and 5 is only permissive one and that the defendants have jointly and severally no ownership rights or interest in the property, which allegedly belongs to her. As the first and the second floors do not belong to the plaintiff, the plaintiff cannot style herself as the owner of the same. As the first and the second floors belongs to the defendants 1 and 3 respectively, the defendants are entitled to reside therein as long as they please even if some of them acquired another house. The said defendants are also entitled to induct any person into possession of said floors at their sole discretion as they are the absolute owners thereof. In that view of the matter, the plaintiff is not entitled to raise any objection that the defendants inducted the defendants 4 and 5 into the 2nd floor. It may be stated here that the defendants 4 and 5 have nothing to do with the 2nd floor of the said building and have been unnecessarily made parties to the suit. The defendants never misused the close relationship between their family and that of the plaintiff, as alleged. It is unfortunate that the plaintiff lost faith and love in all the defendants for no reason at all. The defendants once again reiterate that the Deed of License is not a created and fabricated document, as alleged and that they are not allegedly avoiding to vacate on the strength of the same.”. 4. The trial Court settled the issues. The plaintiff closed evidence on her behalf. The defendants filed chief affidavit of Dw- 1. An Advocate Commissioner was appointed to record cross examination of Dw-1. When the defendants sought to mark the deed of licence as an exhibit on their behalf through Dw-1, the plaintiff raised an objection with regard to marking of the document on twin reasons. Firstly; the document being insufficiently stamped and secondly; for want of registration. The Commissioner filed a memo before the Court to decide about the admissibility of said deed of licence. Thereupon, both the parties submitted their arguments before the III Additional Chief Judge, City Civil Court, Hyderabad. 5. The plaintiff contended that the document is inadmissible since it is not property stamped and it is a compulsorily registerable document. The defendants contended before the trial Court that the document sought to be marked is only a license deed and therefore, it is not a compulsorily registerable document, as provided under Section 17 of the Registration Act. 6. The trial Court considering the contents of the document sought to be received in evidence came to the conclusion that the document is a compulsorily registerable document and since the same is not registered, it cannot be admitted in evidence. Accordingly, sustained the objection raised by the plaintiff with regard to the admissibility of deed of licence, by order dated 11.9.2009. Hence, this revision. 7. Paragraph 5 of the order impugned in the revision needs to be noted and it is thus:- “ Perused the record. According to the defendants, the document in question i.e, Deed of License needs no registration and the same is to be received in evidence. According to the plaintiff, the document in question i.e. Deed of License needs registration, since interest is created in immovable property under the said document. It is pertinent to see the recitals of the document in question i.e., Deed of License. It is seen from the recitals of the impugned document i.e., Deed of Licence, though it is named as `Deed of Licence’ it is clearly averred in the said document that the parties are permitted to construct first floor on the ground floor and the second and third parties are permitted to get the first and second floors registered in their own names in the municipal records and they shall also sell the first and second floors. Thus, it is clear from the impugned document that interest is created in the parties referred in the document to construct first and second floors and to sell the same. It is well settled that the nomenclature of the document cannot be looked into and the recitals of the document are to be looked into, while deciding about the admissibility of the document. Further, I see the facts and circumstances of the rulings cited by the learned counsel for defendants are not applicable to the facts and circumstances of the case on hand and on the other hand the facts and circumstances of the rulings cited by the learned counsel for plaintiff are more applicable to the facts of the case on hand. Further, it is clear from the provisions of Section 17(1)(b) of the Registration Act that any document in which right, title or interest is created, is compulsorily registrable. As already discussed supra, interest in immovable property is created under the impugned document i.e. Deed of Licence. I am, therefore, of the opinion that the said document i.e. Deed of Licence is compulsorily registrable. Admittedly, the said document of Deed of Licence is not registered. I am, therefore, of the view that the impugned document i.e Deed of Licence is not admissible in evidence and the same cannot be marked as exhibit. Hence, I find the point in favour of the plaintiff and against the defendants.” 8. Heard Sri C.V.Mohan Reddy, learned Senior Counsel appearing on behalf of the petitioners-defendants and Sri Vinod Kumar Deshpande, learned counsel appearing for the respondent- plaintiff. 9. Learned Senior Counsel submits that the trial Court committed error in adjudicating the issue as to the admissibility of the document at the evidence stage instead of marking the document noting an objection regarding the admissibility and deciding the same at the end of final hearing of the suit. A further submission has been made that the document sought to be marked on behalf of the petitioners-defendants is only a licence deed, which does not require registration and therefore, the finding recorded by the trial Court that there is a transfer of interest in immovable property under the document in question cannot be sustained. The learned Senior Counsel took me to the contents of the document to convince that what is granted under the document is a licence to put up constructions on the ground floor. He would also contend that when the parties to the document clearly understood that what is granted is a licence, it is not for the Court to treat the document as otherwise. Since licence is coupled with transfer of property, it cannot be revoked unilaterally. Reference has been made to Section 60 of the Indian Easements Act, 1882. 10. Learned counsel placed reliance on the decisions of the Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat and another[1] and decisions of this Court in Meda Anjamma v. Vikram China Veeraiah[2] and Kalyanapu Venkatalaxmi v. Kalyanapu Ramudu[3], wherein it has been held that whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration. Learned counsel also relied on the decision in Ram Sarup Gupta v. Bishun Narain Inter College[4], wherein the Supreme Court held that parties by agreement can make licence irrevocable even if it is not covered by clause (a) or (b) of Section 60 of the Easements Act, 1882. 11. Learned counsel appearing for the respondent-plaintiff submits that the document sought to be received in evidence though it is styled as licence, since transfer of interest in immovable property has been effected, it is a compulsorily registrable document and as the document is insufficiently stamped and not registered, the same is inadmissible in evidence and the trial Court having taken note of the contents of the document came to the conclusion that transfer of interest over immovable property has been effected under the document in question and the same is compulsorily registrable under Section 17 of the Registration Act. 12. In Meda Anjamma v. Vikram China Veeraiah and Kalyanapu Venkatalaxmi v. Kalyanapu Ramudu( 2 and 3 supra), the ratio laid down in Bipin Shantilal Panchal’s case ( 1 supra) has been followed. The proposition of law laid down in the latter decisions referred above is that the question as to registration of a document can be decided at the final disposal of suit by marking the document in evidence subject to that objection. In Meda Anjamma’s case (2 supra), this Court held that so far as the stamp duty is concerned, Court has to look to recitals of a document for analyzing the nature of document. Paragraphs 8 and 9 of the cited judgment needs to be noted and they read as hereunder:- “8. Before proceeding further with this case, it is also necessary to point out that when the nature of document is to be analysed either with reference to Stamp Duty or Registration, the Court has to look to the recitals of the document and nay reference or reliance on the pleadings in the case would amount to grave error on the face of record (see V.L.Narasimha Rao v. K.T.Pentaiah [2002(3) ALT 703 (para 8)] and Chintam Kantam v. Dulipudi Venkateswara Rao[ 2004(1) An.W.R.142(A.P.)=2004(1) ALD 380(para11)]. In this case, there is no denial before this Court that the trial Court has referred to the pleadings on record for deciding the nature of the document and this itself is a ground warranting interference under Article 227 of Constitution of India. 9. As noticed supra, the trial Court decided on the question of stamp duty and also the question of Registration. As per the decision of the Supreme Court in Bipin Shantilal v. State of Gujarat (1 supra), the objection by the defendants 4 to 10 need not detain at this stage. The document sought to be marked by the petitioners as Ex.A-1 can be received in evidence recording the objections, and the lower Court can decide the matter as to the evidentiary value and/or admissibility at the time of hearing. Insofar as the question of stamp duty is concerned, the document sought to be marked is dated 04-04- 1979 and at the relevant time, the stamp duty for an agreement of sale being Rs.5/-. Hence, the trial Court cannot reuse to receive the same in evidence. Therefore, the finding of the trial Court that it is improperly stamped cannot be accepted, but the question whether it amounts to sale deed or sale agreement has to await the trial in the suit”. 13. Learned counsel appearing for the respondent-plaintiff submits that a plain reading of the document sought to be received in evidence on behalf of the petitioners-defendants indicates that there is transfer of interest over the immovable property and in which case it is a compulsorily registrable document under Section 17 of the Registration Act, 1908. A further submission has been made that in Bipin Shanitlal’s case (1 supra), the Supreme Court held that objections regarding deficiency of stamp duty of a document has to be decided before proceeding further. Learned counsel laid much emphasis on paragraph 14 of the cited judgment, which reads as hereunder: “14. Whenever an objection is raised during evidence- taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view, there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).” 14. Learned counsel would contend that there is no error resulting in miscarriage of justice in the finding recorded by the trial Court with regard to admissibility of the document sought to be received in evidence on behalf of the petitioner-defendant and in which case, the finding recorded by the trial Court does not warrant interference by this Court in exercise of powers under Article 227 of the constitution of India. In support of his submissions, reliance has been placed on the following decisions: 1. Gopal Das v. Sri Thakurji[5] 2. Devasikamani Goundar v. Andamuthu Goundar[6] 3. The Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao[7] 4. R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and another[8] 5. Telugu Kishna Mohan and another v. Boggula Padmavathi and others[9] 6. Chinnan and others v. Ranjithammal[10] 7. Binodlal Sagarmal, Hydeabad and others v. Prem Prakash Gupta and others[11] 8. Municipal Corporation of Hyderabad, Hyderabad v. Philomena Education Foundation of India, Hyderabad[12] 15. I do not wish to burden the order by referring the propositions of law laid down by various Courts in the above- referred judgments. It is suffice to say that the issue as to whether the document requires registration or not can be decided at the last stage in the final judgment. However, if the objection relates to deficiency of stamp duty of a document, Court has to decide the objection before proceeding further, as per the proposition of law laid down by the Supreme Court in Bipin Shantilal’s case ( 1 supra). 16. The issue that call for adjudication is whether the document sought to be received in evidence on behalf of the petitioners- defendants conveys transfer of interest over immovable property? 17. Though the document is styled as licence, the contents of the document are required to be noted to know whether the interest over the immovable property is transferred under the said document. Clause (5) of the document sought to be received in evidence on behalf of the petitioners-defendants reads as hereunder:- “ 1. The parties of the First Part hereby grant licence to the party of the Second part, consideration being only love and affection, to construct the first floor on the ground floor of the building constructed on the plot of land allotted to late Padala Ammireddy by Sri Venkateswara Co-operative House Building Society. 2. The party of the Second Part, who has already taken up the construction, shall complete the same at her own cost. 3. The party of the third part is no other than the youngest sister of the Serial No.1 of the first party and aunt of Nos.2, 3 and 4 of the first part(her husband Chandramohan Reddy has been looking after the construction of the ground floor of the building devoting all his time and keeping proper accounts, he being chartered Accountant) out of love and affection the parties of the first part hereby grant licence to the property of the third part, consideration being only love and affection to construct the second floor on the first floor with his own monies. 4. The parties of the Second and Third Part would also take necessary steps to get the first and second floors respectively registered in their own names in the Municipal Records so that they alone would be responsible to pay the property tax and other taxes payable to the municipality with regard to the first floor and the second floor. 5. The parties of the Second and Third part shall sell the first and second floors construction made by them in the event of their desiring to sell the same to the parties of the first part collectively or individually at the prevailing market rate. This grant of licence is executed by the parties of the first part out of their free will and volition without any compulsion whatsoever and the parties of the Second and Third part have agreed to the terms under which the licence is granted”. 18. The terms of the agreement do not give any room for doubt that power to sell the 1st and 2nd floor has also been transferred. Unless title over the 1st and 2nd floors is transferred, the question of 2nd and 3rd party getting power to sell the 1st and 2nd floors does not arise. It is clear that interest in immovable property has been transferred under the document sought to be received in evidence on behalf of the petitioners-defendants. When once the plaintiff raised an objection with regard to the admissibility of the document on the ground that it is insufficiently stamped, as held by the Supreme Court in Bipin Shantilal’s case (1 supra), the objection relating to deficiency of stamp is required to be adjudicated as and when the same is raised and it cannot be postponed till the