Madhya Pradesh High Court
Narendra Kumar vs Devilal And 7 Ors. on 20 July, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 20th OF JULY, 2026
SECOND APPEAL No. 22 of 2014
NARENDRA KUMAR
Versus
DEVILAL AND 7 ORS. AND OTHERS
Appearance:
Shri Mahendra Kumar Jain - Advocate for the appellant.
Shri Ayush Jain - Advocate for the respondents.
Heard on : 29.04.2026
Pronounced on : 20.07.2026
JUDGMENT
This is plaintiff’s appeal challenging the judgment and decree dated
10.10.2013 rendered in Regular Civil Appeal No. 39A/2011 whereby the
judgment and decree of the trial Court passed in Civil Suit No. 38A/2011
was affirmed on the question of title however, on the issue of possession and
consequential relief of permanent injunction, the same was reversed.
2. The facts of the case are that the appellants/plaintiffs filed a suit
for declaration and permanent injunction with respect to suit property
situated in survey No. 1869 (new survey No. 1773) of Village Garod
admeasuring 0.024 aare. The plaintiff and the defendants No. 1 to 6 are
cousins and defendant No. 7 is the wife of nephew of the plaintiff.
3. It was averred in the plaintiff that father of the plaintiff late
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Ramchandraji and late Mangilalji – father of defendants No. 1 to 6 were real
brothers. Ramchandraji died in the year 1970 and Mangilalji in the year of
1978.
4. Late Mangilalji the father of defendants No. 1 to 6 purchased the
suit property around the year 1950 from one Kudrat Khan. After purchase of
the suit property the same was registered in revenue records in the name of
Mangilalji in the year 1951-52 for the reason that he was the elder brother.
5. The said Mangilalji and his son Devilalji (defendant No. 1) along
with other properties sold the suit property to the father of
plaintiff Ramchandraji on 18.07.1958 by executing an agreement on stamp
and since then, Ramchandraji was in possession of the said suit property.
After his death, the property devolved to his wife and son (plaintiff). It was
kept for sustenance of the mother of the plaintiff who had executed a will in
favour of the plaintiff on 02.07.2000. As such, the plaintiff became owner
and possession holder of the suit property.
6. It was also averred in the plaint that since the decade of 1950, the
suit property is in continuous possession of plaintiff /his family. The old car
of his father, some pillars for construction of chattri (Cenotaph), boundary
wall of boulders, agricultural equipment, etc. are kept on the suit property.
There is a big gate and a small door on the west side of the suit property. It is
further averred that there were disputes between the plaintiff, defendants and
neighbour Shiv Narayan regarding the common wall of the suit property.
Thus, complaints were filed before the Revenue Officer from time to time. It
was further averred that though the defendants No. 1 to 6 also admitted to
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possession of the plaintiff, however, due to greed crept in their minds, they
have fraudulently got their names mutated in the revenue records in respect
of the suit property after death of their father Mangilal and thereafter they
had executed a registered sale deed in favour of defendant No. 7 Nirmala on
30.04.2008. It was further averred that earlier defendants No. 1 to 6 had filed
an application before the concerned Tehsildar which was rejected by the
Tehsildar on 30.03.2008 and for this reason they connived with defendant
No.7 and the aforesaid sale deed was executed. It was thus pleaded that the
said sale deed dated 30.04.2008 is not binding upon the plaintiff. In view of
the above pleadings, the relief of declaration of exclusive title, correction of
revenue records, declaration of sale deed dated 30.04.2008 null and void as
well as permanent injunction was sought. The defendants No. 1 to 6 and
defendant No. 7 filed their separate written statements in denial of the
pleadings in the plaint. It was stated by the defendants No. 1 to 6 that the
suit property was purchased by their father Mangilal and it is incorrect to say
that Ramchandraji was having any share in the suit property as it was
purchased by Mangilalji out of his own income.
7. The execution of agreement on 18.07.1958 was also denied. The
possession of plaintiff and before him his father was also denied. The will
dated 02.07.2000 executed by the mother of the plaintiff in his favour was
also denied by stating that the same is not binding upon the defendants. It
was averred in para 6 of the written statement that the suit property was not
in possession of the plaintiff in fact their father Mangilal had permitted the
father of the plaintiff to park his old car in the suit property due to their
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relationship of being real brothers. However, when the defendants required
the plaintiff to remove the same, he started the dispute. Thus, title and
possession both were denied by the defendants No. 1 to 6. Similarly,
defendant No. 7 also denied the title and possession of the plaintiff. It was
stated that the suit property was purchased by the father of defendants No. 1
to 6 Mangilal out of his own income. The execution of the agreement dated
18.07.1958 was denied and it was stated that Mangilalji – father of
defendants No. 1 to 6 was a habitual alcoholic, the plaintiff and his father
may have got some stamps signed but father of the plaintiff never remained
in possession of the suit property.
8. Based on the rival pleadings, the trial Court framed 4 issues. The
issue Nos. 1 to 3 were substantive issues and issue No. 4 was with respect to
relief and expenses. All the issues were decided against the
plaintiff/appellant and in favour of defendants (present respondents),
however, the trial Court found possession of the plaintiff/appellant. Thus, by
relying on the judgment of the Hon’ble Apex Court in the case of Rame
Gowda (D) By LRs vs. M. Varadappa Naidu (D) By LRs & Anr., 2004 (1)
MPJR 366 protected possession of the plaintiff/appellant by issuing
permanent injunction. As such, the suit of appellant was dismissed with
respect to title however, decree for protecting his possession was passed vide
judgment and decree dated 30.04.2011.
9. The appellant/plaintiff as well as the defendants/respondents being
aggrieved by the aforesaid judgment filed their separate appeals before the
First Appellate Court. The appeal filed by the plaintiff was registered as
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39A/2011 and the appeal filed by the respondents was registered as
40A/2011. The First Appellate Court considered the issue of title of the
plaintiff/appellant from para 11 to 15. The Court after extensive appreciation
of evidence concluded that there is no document showing transfer of title of
the suit property in favour of father of the plaintiff. The Court found that the
agreement (Exhibit P/1) was insufficiently stamped unregistered instrument
which cannot be treated to be an instrument for transfer of immovable
property in view of the clear provisions of Section 17 and 49 of the
Registration Act, 1908. Thus, the Court in para 15 concluded that title of
plaintiff/appellant is not found proved. The Court also considered the issue of
adverse possession and concluded in para 18 that it is the case of plaintiff
himself that his father Ramchandraji entered into possession of the suit
property based on Exhibit P/1 agreement, the as per plaintiff itself the
possession was permissive. The First Appellate Court found that it has not
been pleaded in the plaint as to when this permissive possession turned
hostile. Thus, the Court found that no relief based on adverse possession
could have been granted. Thus, this issue was also decided against the
plaintiff/appellant. The First Appellate Court considered the issue of
possession in para 19 of the impugned judgment and based on Exhibit P/10
as well as P/11 found possession of the appellant/plaintiff on the suit
property. However, the Court considered that the judgment of the Hon’ble
Apex Court in case of Rame Gowda (supra) was later on considered by the
Hon’ble Apex Court in case of Maria Margarida Sequeira Fernandez & Ors.
vs. Erasmo Jack de Sequeira, AIR 2012 SC 1727 . The Hon’ble Apex Court
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in the said case considered the term “due process of law” used in case of
Rame Gowda. The Court concluded that due process means opportunity of
being heard as nobody should be condemned unheard. A person in settled
possession will not be dispossessed except by due process of law and it does
not mean whole trial. Apart from the judgment of Maria Margarida (supra),
the Appellate Court also considered the judgment of the Delhi High Court in
case of Thomas Cook (India) Limited vs. Hotel Imperial, 2006 (88) DRJ 545
and ultimately it concluded that in view of the fact that the appellant failed to
prove his title with respect to suit property, consequentially he is not entitled
for protection of his possession, thus the appeal of the present appellant was
dismissed and the appeal filed by the respondents was allowed vide judgment
dated 10.10.2013. Hence, the present appeal before this Court by the
plaintiff/appellant.
10. Learned counsel for the plaintiff/appellant while arguing on the
question of protection of possession submitted that the First Appellate Court
has grossly erred in reversing the decree of permanent injunction granted by
the trial Court in view of the fact that the Appellate Court itself found
possession of the appellant as concluded by it in para 19 of the impugned
judgment. He submits that once this conclusion was drawn by the First
Appellate Court, it was a bounden duty of the Court to protect the possession
of appellant in view of settled position of law that once a person is found in
settled possession, the same cannot be disturbed without due process of law.
In support of his submission he has placed reliance on the judgment passed
in case of Rame Gowda (supra) .
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11. The learned counsel also placed reliance on the judgments of
Hon’ble Apex Court as well as this Court rendered in the case of Balu vs.
Ummed Singh & Ors. reported in 1990 RN 172; Gajendra Sing vs. Mansingh
& Ors., 2000 (2) MPLJ 316; Dhansingh vs. Ganguba, AIR 1992 MP 311;
Rameshwar vs. Smt. Alka, 2012(1) JLJ 443 as well as Puran Singh & Ors.
vs. The State of Punjab, AIR 1975 SC 1674.
12. The learned counsel for the appellant apart from the above also
stressed upon the fact that the Appellate Court and even the trial Court erred
in law while denying decree of title based on adverse possession. His
submission is that the plea of adverse possession need not be specifically
pleaded. It is included in the plea of title and for this proposition, he has
placed reliance on the judgment of this Court rendered in the case of
Chandasingh vs. Kalyansingh, 1981 (2) Weekly Note 257 . He further
submitted that even if the agreement (Exhibit P/1) was an unregistered
instrument, still based on the same the appellant and his family entered into
possession and considering that they are in long-standing possession of the
property, they have perfected their title based on this unregistered deed. In
support of this proposition, he has placed reliance on the judgment rendered
in case of Karamsingh vs. Surajmal Rameshchandra (Firm), 1979 M.P.
Weekly Note 57 . Learned counsel thus submits that the appeal involves
substantial questions of law hence, deserves to be admitted for hearing.
13. Per contra, learned counsel for respondent No. 7 opposed the
appeal on several grounds. His first contention is that findings regarding
possession are in fact wrongly construed by the appellant. What has come to
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the fore from the findings of the trial Court in view of the documents Exhibit
P/10 and P/11 is that some of the artifacts/things of the appellant are lying on
the suit property and not that entire suit property is in possession of the
appellant. His second contention is that even if it is accepted for the sake of
argument that the appellant is in possession of the suit property, the same
cannot be protected after a full-fledged trial before the competent Court of
law when the judgment and decree of the civil Court was assailed before the
Appellate Court wherein the appellant has miserably failed on both
occasions to establish his title on the suit property. He submits that this
process has satisfied the requirement of due process of law. As such, the law
as laid down in the case of Rame Gowda (supra) will not come to rescue the
appellant and thus, the appeal deserves to be dismissed.
14. In support of his submissions, learned counsel for the
respondents has placed reliance on the judgment of this Court in case of
Suleman vs. Narendra Kumar in Second Appeal No. 1258/2021 dated
15.09.2023 as well as in case of Maria Margarida (supra).
15. Apart from the above, learned counsel submitted that in fact
there is another aspect of the matter in as much as the relief of permanent
injunction was not the main relief in the suit. He submits that what was
sought by the appellant in the suit was declaration of title and based on such
title, the consequential relief of permanent injunction was prayed for. He
submits that once the main relief was denied by the trial Court, the
consequential relief of permanent injunction could not have been granted.
For this proposition, he places reliance on the judgment of the Hon’ble Apex
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Court in case of Padhiyar Prahladji Chenaji vs. Maniben Jagmalbhai, (2022)
12 SCC 128. He, thus, supports the impugned judgment and decree and
prays for dismissal of the appeal.
Heard learned counsel for the parties. Perused the record.
16. As far as the issue of adverse possession is concerned, a perusal
of the entire plaint would show that what was pleaded by the plaintiff before
the trial Court was existence of his title based on Exhibit P/1. According to
the plaintiff himself, his father entered into an agreement with the father of
defendants No. 1 to 6 pursuant to which agreement was executed and his
father became title holder of the suit property on 18.07.1958 and after the
death of his father, he and his mother became the title holder of the suit
property. The submission of the learned counsel for the appellant that plea of
adverse possession is included in the plea of title is not sustainable in the
facts of the present case. It has now been settled by the Hon’ble Apex Court
in a catena of judgment that plea of adverse possession is a plea where the
rightful owner of the property is deprived from his rights on the property.
Thus, there is no equity in favour of the person who pleads adverse
possession and it is a burden very heavy upon that person to prove as to when
the possession has become hostile to the true owner of the property.
17. In the present case, contrary has been pleaded. In the present
case, it has been placed that father of defendants No. 1 to 6 executed
agreement and with his consent, father of the plaintiff entered into
possession of the suit property. Even the written statement of the defendants
would show that they pleaded that father of the plaintiff was permitted to
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park his car in the suit property. Thus, there is complete absence of any
pleading and evidence for establishing that possession of the plaintiff became
hostile on a particular date and in absence of which no decree of declaration
of title based on adverse possession could have been granted by the trial
Court. The Hon’ble Supreme Court in the case of Narasamma v. A.
Krishnappa, (2020) 15 SCC 218 held in para 30 to 38 as under:
30. We may also note that on the one hand, the appellants herein have sought
to take a plea of bar of limitation vis-Ã -vis the original defendant claiming that
possession came to them in 1976, with the suit being filed in 1989. Yet at the
same time, it is claimed that the wife had title on the basis of these very
documents. The claim of title from 1976 and the plea of adverse possession
from 1976 cannot simultaneously hold. On the failure to establish the plea of
title, it was necessary to prove as to from which date did the possession of the
wife of the defendant amount to a hostile possession in a peaceful, open and
continuous manner. We fail to appreciate how, on the one hand the appellants
claimed that the wife of the original defendant, Appellant 1 herein, had title to
the property in 1976 but on their failure to establish title, in the alternative, the
plea of adverse possession should be recognised from the very date.
31. We also find that the reliance placed by the learned counsel for the
appellants in Ravinder Kaur Grewal [Ravinder Kaur Grewal v. Manjit Kaur,
(2019) 8 SCC 729 : (2019) 4 SCC (Civ) 453] is also misplaced. The question
which arose for consideration before the three-Judge Bench was whether, a suit
could be maintained for declaration of title and for permanent injunction
seeking protection on a plea of adverse possession, or that it was an instrument
of defence in a suit filed against such a person. In fact, if one may say, there
was, for a long time a consistent view of the Court that the plea could only be
of shield and not a sword. The judgment changed this legal position by opining
that a plea to retain possession could be managed by the ripening of title by
way of adverse possession. However, to constitute such adverse possession, the
three classic requirements, which need to co-exist were again emphasised, nec
vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec
precario i.e. adverse to a competitor, in denial of title and his knowledge.
32. The question which confronts us is not the aforesaid, but whether
simultaneously a plea can be taken of title and adverse possession i.e. whether
it would amount to taking contradictory pleas. In this behalf, we may refer to
the four judgments cited by the learned counsel for the respondent herein,
which succinctly set forth the legal position.
33. In Karnataka Board of Wakf case [Karnataka Board of Wakf v. Union of
India, (2004) 10 SCC 779, para 11] , it has been clearly set out that a plaintiff
filing a title over the property must specifically plead it. When such a plea of
adverse possession is projected, it is inherent in the nature of it that someone
else is the owner of the property. In that context, it was observed in para 12
that “… The pleas on title and adverse possession are mutually inconsistent
and the latter does not begin to operate until the former is renounced.”
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34. The aforesaid judgment in turn relied upon the judgment in Mohan
Lal [Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639] , which observed in
para 4 as under: (SCC pp. 640-41)
“4. As regards the first plea, it is inconsistent with the second plea. Having
come into possession under the agreement, he must disclaim his right
thereunder and plead and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his successor-in-title or
interest and that the latter had acquiesced to his illegal possession during the
entire period of 12 years i.e. up to completing the period of his title by
prescription nec vi, nec clam, nec precario. Since the appellant’s claim is
founded on Section 53-A, it goes without saying that he admits by implication
that he came into possession of the land lawfully under the agreement and
continued to remain in possession till date of the suit. Thereby the plea of
adverse possession is not available to the appellant.”
35. In order to establish adverse possession an inquiry is required to be made
into the starting point of such adverse possession and, thus, when the recorded
owner got dispossessed would be crucial. [P.T. Munichikkanna
Reddy v. Revamma, (2007) 6 SCC 59]
36. In the facts of the present case, this fact has not at all been proved. The
possession of Smt Narasamma, the wife of the defendant, is stated to be on
account of consideration paid. Assuming that the transaction did not fructify
into a sale deed for whatever reason, still the date when such possession
becomes adverse would have to be set out. Thus, the plea of adverse possession
is lacking in all material particulars.
37. The possession has to be in public and to the knowledge of the true owner
as adverse, and this is necessary as a plea of adverse possession seeks to defeat
the rights of the true owner. Thus, the law would not be readily accepting of
such a case unless a clear and cogent basis has been made out [M. Siddiq (Ram
Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] .
38. We may also note another judicial pronouncement in Ram Nagina
Rai v. Deo Kumar Rai [Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC
324 : (2018) 5 SCC (Civ) 722] dealing with a similar factual matrix i.e. where
there is permissive possession given by the owner and the defendant claims
that the same had become adverse. It was held that it has to be specifically
pleaded and proved as to when possession becomes adverse in order for the
real owner to lose title 12 years hence from that time.
18. As such, in view of the above position of law, the case of
Chandansingh (supra) as cited by the learned counsel for the appellant with
respect to adverse possession will not held him. The trial Court as well as the
First Appellate Court in para 18 of the impugned judgment has rightly
concluded against the appellant on this issue.
19. As far as the title of the plaintiff based in Exhibit P/1 is
concerned, the first Appellate Court has correctly concluded in para 15 that
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Exhibit P/1 is an unregistered document which cannot confer any title of an
immovable property having value more than Rs. 100/- on the father of the
plaintiff. In the considered view of this Court, there is no infirmity in this
conclusion of the First Appellate Court. The provisions of Registration Act,
1908 and the Transfer of Property Act enjoins upon each and every person
for executing instrument in accordance with the provisions of the said Acts
for effecting sale of an immovable property. In the present case, the same is
completely absent. Neither there is registration nor proper stamping on the so
called agreement (Exhibit P/1). Thus, on this issue also the findings of both
the Courts below are confirmed. The Hon’ble Apex Court in the case
of Appineni Vidyasagar v. State of A.P. , (2004) 11 SCC 186 held in para 5
to 7 as under:
5. Learned counsel for the appellant submitted that the appellant having
purchased the land, though not under a registered sale deed, did acquire title
though imperfect. All the same, he was in possession of the land in question
and, therefore, according to him, the landlord could not have surrendered the
land in possession of the appellant, and he should have been compelled to
surrender other lands which were in his personal possession in excess of the
ceiling limit. He drew our notice to Section 10(5) of the A.P. Land Reforms
(Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as “the
Act”) and submitted that since there was an encumbrance on the land in
question on account of the unregistered sale deed executed in favour of the
appellant, the Tribunal ought to have rejected the surrender made by the
landlord of the land in question, and ought to have compelled him to surrender
other lands which were not involved in dispute of any kind as contemplated by
sub-section (5) of Section 10 of the Act.
6. The High Court having considered the orders of the Land Reforms Tribunal
and the Land Reforms Appellate Tribunal, came to the conclusion that both the
Tribunals had fully considered the matter and had reached the right conclusion
that the land, of which the appellant may have been in possession for some
time, could be surrendered because in the absence of valid transfer of title the
land formed part of the holding of the owner. The courts below have also relied
upon the judgment of this Court in State of A.P. v. Mohd. Ashrafuddin [(1982)
2 SCC 1] in which it was observed as follows: (SCC p. 4, para 9)
“9. It is by now well settled that a person in possession pursuant to a contract
for sale does not get title to the land unless there is a valid document of title in
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came into possession in pursuance of an agreement for sale but no valid deed
of title was executed in his favour. Therefore, the ownership remained with the
respondent transferor. But even in the absence of a valid deed of title the
possession pursuant to an agreement of transfer cannot be said to be illegal and
the transferee is entitled to remain in possession. If per chance he is
dispossessed by the transferor, he can recover possession. The transferor
cannot file any suit for getting back possession but all the same he will
continue to be the owner of the land agreed to be transferred. The respondent,
in our considered opinion, satisfies the conditions contemplated by the
definition of the term ‘holding’ and the land transferred by him under a
defective title deed will form part of his holding. The High Court, therefore,
erred in holding that the land in possession of the transferee cannot be taken to
be a part of the holding of the respondent transferor.”
7. We have perused the orders of the Land Reforms Tribunal as well as the
Land Reforms Appellate Tribunal and we find no reason to take a different
view. It cannot be disputed that the land in question had not been validly
transferred in favour of the appellant and, therefore, the erstwhile owner in the
absence of a valid sale deed continued to be the holder of the land. The matter
has also been examined from another angle, namely, whether the appellant
acquired title to the land in question by adverse possession. Even that has been
answered against the appellant. In these circumstances, the High Court has
rightly dismissed the CRP preferred by the appellant.
20. This Court in the case of Kamal Singh v. Sharif Khan, 2024 SCC
OnLine MP 1522 has considered the issue of transfer of title by an
unregistered document. After considering the statutory provisions the court
held in para 8 to 12 as under:
8. On perusal of the document Ex. P-1 it is found that this document is an
agreement to sell and it is an unregistered document. Section 54 of the Transfer
of Property Act defines the sale which reads as under:–
Section 54 defines the “Sale” of immovable property.-Sale is a transfer of
ownership in exchange for a price paid or promised or part-paid and part-
promised.
Sale how made — Such transfer, in the case of tangible immovable property of
value of one hundred rupees and upwards, or in the case of a reversion or other
intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred
rupees, such transfer may be made either by a registered instrument or by
delivery of the property.”
9. In the case of Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 it is
held that an agreement to sell does not create any right or title in favour of the
intending buyer. In the case of Suraj Lamp and Industries Pvt Ltd. v. State of
Haryana, JT (2011) 12 SC 654 it is held that transfer of immovable property by
way of sale can only be by a deed of conveyance (sale deed). In the absence of
a deed of conveyance (duly stamped and registered as required by law) no
right, title or interest in an immovable property can be transferred.
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10. Section 17 of the Registration Act, 1908 also provides the registration of
document. Section 17 reads as under:–
17. Documents of which registration is compulsory. —
(1) The following documents shall be registered, if the property to which they
relate is situate in a district in which, and if they have been executed on or after
the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866,
or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or
this Act came or comes into force, namely:–
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate 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 one hundred
rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of
any consideration on account of the creation, declaration, assignment,
limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding
one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order
of a Court or any award when such decree or order or award 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
one hundred rupees and upwards, to or in immovable property:
11. Section 49 of the Registration Act, 1908 reads as under:–
“49. Effect of Bosa-registratioii 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 adopts 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]
12. So on perusal of the provisions of Section 54 of the Transfer of Property
Act, Sections 17 and 49 of the Registration Act it is clear that no right, title or
interest in immovable property can be transferred without registration of the
sale deed.
As such, the appellant cannot claim title based on an unregistered
instrument, moreover in the present case, the said instrument is only a
purported agreement to sale and not even an unregistered sale deed.
21. This brings us to the last issue i.e. protection of possession of the
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appellant. The fulcrum of the argument of learned counsel for the appellant
on this issue is that the First Appellate Court in para 19 of the impugned
judgment has concluded that appellant is in possession of the suit property.
His submission is that same was the finding of the trial Court. Thus, the trial
Court correctly protected the possession of the appellant and Appellate Court
has illegally reversed that finding. This argument is based on the proposition
as laid down by the Hon’ble Apex Court in the case of Rame Gowda
(supra). However, the learned counsel for the appellant has completely
ignored the subsequent judgment of the Hon’ble Apex Court passed in case
o f Maria Margarida (supra). In the said case, the Hon’ble Apex Court
explained the purport of due process of law. A careful reading of the said
judgment would show that filing of the suit by the appellant/plaintiff for
declaration of title and consequential decree denying relief of title after
giving full trial in which full opportunity to lead evidence and prove his case
was given by the trial Court are sufficient compliance of the said
requirement. Thus, the appellant here is not being condemned unheard. It is
also to be kept in mind that even the revenue authority did not entertain the
application of defendant No. 1 to 6 only for the reason that dispute of title
was pending. It is not even the case of appellant / plaintiff that the defendants
are using force against them. As such, in the considered view of this Court,
the First Appellate Court has correctly reversed the judgment and decree of
the trial Court with respect of permanent injunction.
22. There is yet another reason for reaching to this conclusion. A
perusal of the plaint would show that the case was brought by the appellant
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for declaration of title and consequential relief of protection of possession.
However, the trial Court as well the First Appellate Court did not find the
title of the appellant on the suit property. Thus, on this issue both the Courts
concurrently dismissed the suit of the appellant and once the suit for
substantive/main relief was dismissed, it was imperative for both the Courts
below that the suit for consequential relief of permanent injunction should
also be dismissed. The Hon’ble Apex Court in case of Padhiyar Prahladji
(supra) has held in para 28 to 30 as under :
“28. In the said decision in Maria Margarida (supra), this Court has approved
the following findings of the High Court of Delhi in Thomas Cook (India) Ltd.
v. Hotel Imperial (supra)“28. The expressions “due process of law”, “due course of law”
and “recourse to law” have been interchangeably used in the
decisions referred to above which say that the settled possession of
even a person in unlawful possession cannot be disturbed
“forcibly” by the true owner taking law in his own hands. All these
expressions, however, mean the same thing-ejectment from settled
possession can only be had by recourse to a court of law. Clearly,
“due process of law” or “due course of law”, here, simply mean
that a person in settled possession cannot be ejected without a
court of law having adjudicated upon his rights qua the true
owner.
Now, this “due process” or “due course” condition is satisfied the
moment the rights of the parties are adjudicated upon by a court of
competent jurisdiction. It does not matter who brought the action
to court. It could be the owner in an action for enforcement of his
right to eject the person in unlawful possession. It could be the
person who is sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for enforcement of
a right (recovery of possession) or protection of a right (injunction
against dispossession), is not of much consequence. What is
important is that in either event it is an action before the court and
the court adjudicates upon it. If that is done then, the “bare
minimum” requirement of “due process” or “due course” of law
would stand satisfied as recourse to law would have been taken. In
this context, when a party approaches a court seeking a protective
remedy such as an injunction and it fails in setting up a good case,
can it then say that the other party must now institute an action in
a court of law for enforcing his rights i.e. for taking back
something from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action must grant an
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injunction anyway? I would think not. In any event, the “recourse
to law” stipulation stands satisfied when a judicial determination is
made with regard to the first party’s protective action. Thus, in the
present case, the plaintiff’s failure to make out a case for an
injunction does not mean that its consequent cessation of user of
the said two rooms would have been brought about without
recourse to law.”
29. Applying the law laid down by this Court in the aforesaid decision to the
facts of the case on hand and once the rights of the parties are adjudicated and
Defendant 1 is held to be the true owner on the basis of the registered sale deed
and on payment of full sale consideration, it can be said that due process of law
has been followed and thereafter the plaintiff is not entitled to any permanent
injunction against the true owner.
30. In view of the above discussion and for the reasons stated above, all the
courts below have erred in granting permanent injunction in favour of the
plaintiff and against Defendant 1, who is the true owner. After having held that
the plaintiff had no title and after dismissing the suit qua the cancellation of the
registered sale deed and the declaration, the plaintiff is not entitled to relief of
permanent injunction against Defendant 1 – the true owner.”
23. As far as the reliance placed by the learned counsel for the
appellant on the judgment of the Hon’ble Apex Court in case of Rame
Gowda (supra) and Dhansingh (supra) are concerned, in view of the above
analysis and the law as laid down by the Hon’ble Apex Court while
considering the judgment of Rame Gowda (supra) in the case of Maria
Margarida (supra), the requirement of due process of law has been satisfied.
Thus, the same will not come to rescue the appellant in the present case. As
regards the judgment in case of Balu Singh (supra) what was held in the said
case is that the possession could not have been disturbed in absence of due
process of law. As regards the orders passed by this Court and relied upon by
the learned counsel for the appellant, in view of the above discussion, the
judgments of the Hon’ble Apex Court in the case of Maria Margarida (supra)
a n d Padhiyar Prahladji (supra) would show that in the present case, the
requirement of due process of law has been satisfied. Thus, these cases will
also not come to the rescue of the appellant.
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21. In view of the above analysis of facts and the position of law,
this Court is of the considered view that the First Appellate Court has
correctly recorded its findings and there is no perversity or infirmity in the
same. The appeal is bereft of any substantial question of law. Thus, the
same is hereby dismissed.
No order as to cost.
Record of the Courts below be sent back.
(PAVAN KUMAR DWIVEDI)
JUDGE
vidya
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