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TMI Blog2017 (5) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to their having acquired 1/2 share in the suit land and as such learned first appellate Court erred in while placing reliance upon Ex. P-1, whereby, on the basis of oral Azadinama/relinquishment deed, 1/2 share in the suit land has been ordered to be mutated in the name of defendants. In the instant case, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land - Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein that he is owner in possession of the land measuring 24-17 bighas, comprised in Khatta/Khatauni No. 36/53, Khasra No. 136 and 138, Kitta-2, situated in village Ropa Ghullatar, Pargana Sariun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the 'suit land'). It is alleged by the plaintiff that entries in the revenue record qua the suit land in favour of the defendants are wrong and without having any right, title or interest in the suit land. It is averred by the plaintiff that on 10.3.1995, on the basis of wrong entries in the revenue record, the defendants threatened to interfere with possession of the plaintiff over the suit land. It is further averred by the plaintiff that the suit has been filed for declaration and permanent injunction to the effect that the plaintiff be declared owner in possession of the suit land and the defendants be restrained from interfering with their possession. In this background, the plaintiff filed a suit for declaration, for issuance of permanent injunction restraining the defendants from interfering with the suit land in any manner as well as for possession. 3. Defendants No. 1 and 2, by way of filing written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and decree passed by learned Additional District Judge, Ghumarwin, District Bilaspur, whereby suit of the plaintiff was dismissed with a prayer to quash and set aside the same. 9. This Court vide order dated 10.05.2006 admitted the appeal on the following substantial question of law:- 1. Whether the finding of the first appellate court that respondents/defendants acquired title to the extent of one-half share in the suit property by virtue of Azadinama referred to in the red ink note recorded in the remarks column of Misal Hakiet Ex. P-1, is bad in law on account of no such plea having been raised by the respondents-defendants in the written statement? 10. Mr. G.D. Verma, learned Senior Counsel representing the appellants-plaintiffs, vehemently argued that the impugned judgment passed by the learned first appellate Court is not sustainable in the eyes of law as the same is not based upon the pleadings as well as proper appreciation of evidence adduced on record by the respective parties and as such same deserves to be quashed and set aside. Mr. Verma further contended that bare perusal of the impugned judgment suggests that the learned first appellate Court mis-dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of aforesaid document while deciding the controversy at hand. Learned counsel further contended that the aforesaid document was not required to be considered and looked into by the Court below because Gram Panchayat had no authority to effect the partition of the suit land and houses situated thereon and as such partition deed Ex. DW-3/A, prepared by Gram Panchayat on the directions of A.D.M., Bilaspur, was wrongly taken into consideration by first appellate Court while setting aside the well reasoned judgment passed by the first appellate Court. 12. While concluding his arguments, Mr. Verma contended that there was no occasion, whatsoever, for plaintiff to lay challenge to mutation Ex. DX, whereby defendants were shown to be owners to the extent of 1/2 share on the basis of alleged 'Azadinama' because as per settled law no title could be transferred by way of oral statement, rather, title could only be transferred/relinquished by way of registered document. In the aforesaid background, Mr. Verma, prayed that the judgment and decree passed by learned trial Court below be restored after setting aside the judgment and decree passed by the learned first appellate Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serably failed to take note of relinquishment/'Azadinama' made in favour of defendants and as such learned first appellate Court rightly reversed the findings returned by the learned trial Court, which were admittedly passed without taking note of endorsement with regard to relinquishment made in Missalhaquiat Ex. P-1. Mr. Chauhan further contended that there is no evidence led on record by the plaintiff suggestive of the fact that he had ever taken steps after 12th July, 1968 for laying therein challenge to mutation made in favour of defendants and as such he cannot be allowed to state at this stage that mutation attested in favour of defendants pursuant to statement of plaintiff made on 12.7.1968 cannot be looked into. 15. While concluding his arguments, Mr. Chauhan invited the attention of this Court to the partition deed Ex. DW-3/A to suggest that Gram Panchayat effected partition of suit land and houses situated thereon amongst plaintiff and defendants on 15.4.1994 on the direction of Deputy Commissioner, Bilaspur and at that time no objection, if any, was ever raised by the plaintiff and as such there is no force in the arguments having been made by learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that suit land was granted as Nataur to Munshi Ram in the year 1947 by the Erstwhile Ruler of Bilaspur Estate and since then the suit land is coming into possession of Munshi Ram. 20. DW-3, Basant Singh stated in his statement that plaintiff Munshi Ram had not alienated the suit land nor defendants were having any right, title or interest therein. In his cross-examination he only stated that he had moved an application for partition of their land before the Deputy Commissioner, Bilaspur and Gram Panchayat had effected partition of the ancestral land of the parties. Partition itself was adduced in writing. Similarly, DW-1 Sant Ram stated that defendants were joint owners of 1/2 share of suit land and the Deputy Commissioner had forwarded the application to the Gram Panchayat and Gram Panchayat partitioned the suit land between Munshi Ram and the defendants. DW-3, who happened to be Pradhan of Gram Panchayat, Kuh Majhwar, also stated that Gram Panchayat was ordered to effect partition of the land and houses of the parties and accordingly the Gram Panchayat effected the partition of suit land and houses and partition deed Ex. DW-3/A was scribed by him which was signed by the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to specifically prove that on what basis they became owners to the extent of 1/2 share in the suit land. DW-1, defendant Sant Ram himself admitted that entire suit land was granted as a Nautor to Munish Ram in the year 1947 by erstwhile Ruler of Bilaspur Estate and since then it is coming in the possession of Munshi Ram. Defendant No. 1 also admitted that Munshi Ram had not alienated the suit land. If the aforesaid version of defendant is accepted, there is no explanation worth the name, if any, rendered on record by the defendants that in what manner they came to be owners to the extent of 1/2 share of the suit land. Though it is well settled that Courts below while adjudicating claim of the parties cannot go beyond the pleadings, but, in the instant case learned first appellate Court while holding the defendants to be owners to the extent of 1/2 share of the suit land heavily placed reliance on Ex. P-1. True, it is, that perusal of Ex. P-1 i.e. Misslahaquiat suggests that the plaintiff Munshi Ram had relinquished his 1/2 share of suit land by way of 'Azadinama' in favour of defendants vide mutation No. 148, dated 12.7.1968. The aforesaid factum of having effected mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hundred rupees and upwards, to or in immovable property:] Provided that the [State Government] may, by order published in the [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees. [(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] (2) Nothing in clauses (b) and (c) of sub-section (l) applies to-- (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.... Section 49 of the Registration Act, 1908 reads as under:- 49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[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: 1[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.]... 23. Perusal of aforesaid Section 17 clearly suggests that document/instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. 18. 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 legal importance or relevance by recording them, where people may see the record and enquire 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. 27. It may be true that Respondent No. 1 had constructed some buildings; but it did so at its own risk. If it thought that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn. (p. 2196) 30. In Satyawan and others vs. Raghubir, AIR 2002 Punjab and Haryana, 290, the Hon'ble Court has held as under:- 18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by A with property Y belonging to B . In this manner, the property is received i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby, on the basis of oral Azadinama/relinquishment deed, 1/2 share in the suit land has been ordered to be mutated in the name of defendants. 32. In the instant case, in view of aforesaid discussion having been made hereinabove, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land. 33. Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of the land can only be effected by the authority as prescribed under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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