Sharad Sharma, J
1. This is a defendant’s Second Appeal wherein he has questioned the judgment dated 24.10.2018 as passed by the 1st Additional District Judge,
Dehradun in Civil Appeal No. 174/2015 ‘Vijay Gulati vs. Dhirendra Gupta’. As a consequence thereto, his Civil Appeal stood dismissed
resulting into affirmation of the judgment of the Trial Court dated 21.11.2015 as rendered in Original Suit No. 339/2006 “Dhirendra Gupta vs. Vijay
Gulati’.
2. The brief facts, which has resulted into institution of the Suit by the plaintiff/respondent, was on the ground that a perpetual lease deed was
executed in his favour, by the owner Mr. B.P. Bagchi, of his property bearing No. 9 (New No. 57/31), Laxmi Road, Dalanwala, Dehradun. Out of the
three perpetual leases which were executed, one of them was executed in favour of plaintiff on 8. 04.1992, which was duly registered before the Sub-
Registrar, Dehradun. and under the strength of the registered lease deed, plaintiff contends that he had been placed in possession. He had pleaded in
the Suit that plaintiff normally resides in Chandigarh and when he visited Dehradun on 09.04.2006 after some gap of time, he was shocked to learn
that the defendant had taken undue advantage of his absence and has encroached upon a piece of land measuring 334.44 sq.meter, more particularly,
described at the foot of the plaint by the figure D.E.F.G.C. registered similarly Vivek Sheel and Vineet Sharma were granted perpetual lease for
property shown by figure A B C D of the plaint map and Hari Singh of property marked by letters EFHIJ. Defendants contended to have come in
possession of adjoining property A B C D having acquired lease hold rights from Vineet Sharma and Vivek Sheel. Plaintiff thus contended that
defendant is an encroacher of the land. The said Suit as instituted on 30.04.2006 for following reliefs:
“10. That for the purpose of payment of court fees and jurisdiction, the property in suit is being valued as under:-
a) For relief (a) â€" The annual rent reserved for the property described in the schedule of the plaint in Rs.5 and 30 times thereof comes to Rs.150/-
For relief (a) the suit is being valued at Rs.150/- and the prescribed court fees has been paid thereon.
b) For relief (b) court fees is tentavively being paid on a sum of Rs.4,000/-. Further court fees if required shall be paid at the time of execution.
Total valuation of suit is Rs.4,150/-â€
3. The defendants filed their written statement on 05.10.2000, submitted property shown by A B C D in plaint map they have got it by lease on
15.12.1994, which was registered before Sub-Registrar on 21.12.1994. They submitted that on constitution of joint Hindu family it’s the father of
plaintiff who desired to sell property in dispute to defendant. Hence, they submit that property was agreed to sold for consideration of Rs.5,80,000/-
subject to certain conditions, and defendant had paid Rs.50,000/- in advance in cash and possession was handed over to them. Primarliy defendant
(appellant herein) by filing the written statement and the ground taken by the defendant/appellant in the written statement was that they have claimed
their rights over disputed property DEFGC on the basis of unregistered agreement for sale dated 25.12.1996, which is said to have been executed in
their favour by the father of the plaintiff (respondent herein). Defendant claim protection of Section 53A of Transfer of Property Act, 1882, claimed to
be in possession in part performance of contract or agreement for sale. Defendant further submitted that he is willing to perform his part of act as
agreed on 25.12.1996. In defense they submitted that when plaintiff on 15.06.1997 made an effort to break boundary wall they have lodged an FIR on
15.06.1997 faced with plaintiff and his father ran away.
4. Admittedly, the said document by virtue of which the defendant claims that he has been placed in possession in part performance of contract is an
unregistered document. In support of his contention the plaintiff led evidence by placing the lease deed dated 28. 04.1992 on record as paper No. 28/2,
the information from Thana Dalanwala Paper 28 ga/16, lease deed dated 15.12.1994 Paper No. 28 ga/19, besides other documents by way of proof of
his age at time of execution of lease deed in his favour by Mr. B.P. Bagchi. Besides this, he also led oral evidence and produced himself as PW1,
Pratap Singh as PW2, Gulab Singh as PW3 and Manohar Lal as PW4.
5. On the other hand, defendant produced the receipt of part consideration paid to the father of plaintiff as Paper No. 26 ka, as a proof to show that
possession stood handed over to them and paper No. 27ga report to police station and produced himself in witness box as DW2.
5. The said Suit proceeded and after the exchange of pleadings the learned Trial Court vide order dated 23.03.2011 had framed the following issues:
“1- D;k oknh oknxzLr lEifRr dk dCtk izfroknh ls okil izkIr djus dk vf/kdkjh gS\
2. D;k oknh izfroknh ls oknxzLr lEifRr dk fjDr v/;klu izkIr djus rd gtkZ bLrseky izkIr djus dk vf/kdkjh gS\ ;fn gka rks fdl nj lsA
3. D;k oknh oknxzLr lEifRr dks izfroknh dks foØ; djus gsrq RkS;kj Fkk rFkk mldk dCtk izfroknh dks iznku dj fn;k Fkk\
4. D;k izfroknh oknxzLr lEifRr dk dCtk lEifRr vUrj.k vf/kfu;e dh /kkjk 53, ds vUrxZr izkIr djus dk vf/kdkjh gS\
5- oknh fdl vuqrks’k dks izkIr djus dk vf/kdkjh gS\â€
6. The Suit proceeded and the Court of Civil Judge (S.D.), Dehradun vide its judgment dated 21.11.2015 while primarily dealing with issue nos. 1, 2, 3
& 4 had come to a conclusion that the plaintiff was the lease holder and he was placed in possession after the execution of the registered lease deed
dated 08.04.1992, and the father of the plaintiff at the time of agreement for sale dated 25.12.1996 did not have any authority to execute the said
agreement for sale because at that point of time the plaintiff has already attained majority.
7. The learned Trial Court further held that since the document i.e. so called Agreement for Sale dated 25.12.1996 executed by father of plaintiff was
not validly executed and, rather if at all it was executed, it was executed by a person holding no authority. No benefit or right could be derived by the
defendant by interpreting the implications of Section 53A of the Transfer of Property Act, 1882.
8. Plaintiff in his affidavit in examination in chief Paper No. 60ka reiterated the plaint case and submitted that lease dated 8. 04.1992 in his favour was
signed by his father as his guardian as he was minor. The case of the plaintiff was supported by PW2, who was clerk in Registrar’s office, and
fortified the fact that the lease dated 8. 04.1992 was registered. Thus considering the finding recorded by the Trial Court based on oral testimony of
PW2 and PW3 to part of execution and registration of lease deed dated 08.04.1992 was proved. Even from the map which constituted part of lease
deed shows property DEFG was received by plaintiff through his father, which was having an area of 344.44 sq.meters.
9. Another important fact which has wide a bearing over the controversy is the age of the plaintiff and its impact on the agreement dated 25.12.1996
executed by father of plaintiff in favour of defendant. As per evidence brought on record that is the High School Certificate as on 25.12.1996, the
plaintiff was shown to be of 18 years 8 months of age, hence, was major, hence, the receipt Paper No. 26kaI was sole document which was taken to
be basis of right by defendant could not have been read in evidence since being void and nonest document, besides it does not contain any description
of property.
10. The learned Trial Court also considered the effect of non registration of document, in light of Section 54 of Transfer of Property Act, 1882, and
effect of Registration and Other Related Laws (Amendment) Act, 2001, i.e. Act No. 48 of 2001, as well as, Section 49 of Registration Act, 1908.
11. Hence, the Suit was decreed by judgment dated 21. 11.2015 with the direction to the petitioner to hand over the possession of
the property described as D.E.F.G.C. and simultaneously there was a direction issued to pay more profits at the rate of Rs. 2,000/- per month.
12. This judgment of the learned Trial Court was put to challenge by the appellant herein in a regular First Appeal under Section 96 of the Code of
Civil Procedure, which was registered as Civil Appeal No. 174/2015 ‘Vijay Gulati vs. Dhirendra Gupta’. As would reveal from records that the
Appeal was instituted on 17. 12.2015 and its proceedings were directed to be expedited by the Hon’ble High Court vide its judgment dated
14.09.2018 passed by this Court in Writ Petition No. 2770/2018 ‘Dhirendra Gupta vs. Vijay Gulati’. It was thereafter, that almost after three
years of filing of the Appeal, the appellant has filed an application Paper No. 38C invoking order 41 Rule 25 read with 151 of the Code of Civil
Procedure praying for framing of as many as eight additional issues. This application thus preferred on 15.10.2018 remains pending and the grievance
of the petitioner is that even at the time when the Appeal itself was finally adjudicated no orders is passed under Order 41 Rule 25 even as reflected
from the proceedings as held on 16.10.2018.
13. Having considered this argument and seeing the order sheet, the argument of learned counsel for the appellant may not be sustained because the
application under Order 41 Rule 25, which was filed belatedly on 15.10.2018 the application was considered and Court in post-lunch session on
considering the fact that all relevant issues have been framed rejected the application under Order 41 Rule 25, and the matter was fixed for
24.10.2018 as already scheduled by the order passed in the pre-lunch session.
14. To point out the procedural flaw the learned counsel for the appellant submits that after the conclusion of the arguments of the Appeal on
16.10.2018 in the pre-lunch session thereafter the application under Order 41 Rule 25 was placed before the Court in the post-lunch session and it has
been rejected. This argument for above reason is absolutely misleading and unsustainable.
15. The Appellate Court vide judgment dated 24.10.2018 had dismissed the Appeal and the judgment of the Trial Court dated 21. 11.2015 was
affirmed. Hence, the present Second Appeal.
16. In the present Second Appeal the learned counsel for the appellant has pressed upon the substantial questions of law as framed under the
memorandum of Appeal to the following effect:
“A. Whether judgment and decree passed by the lower appellate court without stating and rendering its decision on points for determination
following the mandate of Order 41 Rule 31 C.P.C., is vitiated and is a judgment within the meaning of section 2(9) C.P.C. and decree within the
meaning of section (2) C.P.C.
B. Whether an agreement for sale for the purposes of section 53A of Transfer of Property Act, on being mandatorily required to be registered only
w.e.f. 24.09.2001 i.e. coming into force of provisions of The Registration and other related laws (amendment) Act 2001 (Act No. 48 of 2001),
contract executed on 25.12.1996 was rightly held to be inadmissible in evidence ignoring section 12 of the Act no. 48 of 2001.
C. Whether the suit for possession instituted by plaintiff/respondent based on the lease hold rights under perpetual lease deed could have been decreed
without framing and deciding the issue as regards the ownership, title and alleged rights of plaintiff and without the proof of validity and contents of
alleged lease deed dated 08.04.1992 being basis of the suit.
D. Whether the suit for possession instituted by plaintiff alleging trespass, based on previous possession was maintainable after period of six months
from date of dispossession in view of section 6(2) of Specific Relief Act 1963.
E. Whether on attaining age of 18 years by plaintiff as on 25.121996 i.e. date of contract between defendant and father of plaintiff, right of Shri
Shyam Kumar Gupta ceased to enter into contract with defendant qua the property alleged to be taken on lease by himself as natural guardian of
plaintiff that too plaintiff till delivery of defense in suit by defendant never objected to the said contract and acquiesced the same.
F. Whether once the appeal was post for delivery of judgment vide order dated 16.10.2018, learned lower appellate court having become functuous
officio could have taken up the pending application under order 41 rule 25 CPC of defendant/appellant for disposal thereafter and reject the same by
cryptic and unreasoned order taking away the valuable right of defendant/appellant.â€
17. Learned counsel for the appellant had harped upon the provisions contained in Order 41 Rule 31 of CPC, wherein, he contends that it is mandatory
for the Appellate Court to deal with all the issues, which was required to be considered for adjudication of the Appeal and, since the said provision
was not complied with, it would vitiated the Appellate Court’s judgment. The provisions of Order 41 Rule 31 provides as under:
“31. Contents, date and signature of judgment- The judgment of the Appellate Court shall be in writing and shall state-
(a) the points of determination.
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall be at the time it is pronounced be
signed and dated by the Judge or by the Judges concurring therein.â€
It lays modalities which the Court has to adhere to adjudicate a controversy so as to make it an absolute judgment as defined under Section 2(a) of
Code of Civil Procedure.
18. The learned Trial Court while considering the fact that issue nos. 1, 2, 3 & 4 as involve a consideration of common fact and law consolidated and
decided the same by common reasoning and appreciation of evidence and logic, the Appellate Court too while deciding the Appeal had comparatively
recorded his finding on these issues, together and has vividly dealt with the same, thus there had been an adherence of provisions of Order 41 Rule 31
of Code of Civil Procedure, and Appellate Court has elaborately dealt with the issues. Relevant paragraph of which is quoted hereunder:
“11- voj U;k;ky; dh i=koyh ds voyksdu ls ;g rF; fofnr gksrk gS fd voj U;k;ky; }kjk cuk;s x;s okn fcUnqvksa dk fuLrkj.k ,d lkFk fd;k x;k gSA vr,o
mijksDr vihy ds fuLrkj.k gsrq voj U;k;ky; ds er dks /;ku esa j[kk tkuk vkoâ€;d gSAâ€
19. The Appellate Court too in paragraph-14 of the judgment while considering the propriety of the deed dated 25.12.1996, which was an agreement
held that on the basis of Paper No. 67ka, which the High School certificate of the plaintiff as on date of execution of the deed he was major as his
date recorded in the High School certificate was 28.04.1978. The Appellate Court also considered the statement of PW3-Gulab Singh, who works as
Assistant in Municipal Corporation, Chandigarh and PW4- Manohar Lal, who works as Junior Assistant in Punjab School Education Board and they
proved the age of plaintiff.
20. The Appellate Court had in paragraph-13 of the judgment had considered the implications of Section 54 of Transfer of Property Act and the
necessity of mandatory registration of deed for agreement of sale, as provided by U.P. Act of 1976, thereby holding that in view of Section 49 of
Registration Act Paper No. 56ka cannot be accepted as document conferring any right or title.
21. Further, he submits that at the time when the agreement for sale was executed on 25.10.1996 was executed in view of the provisions contained
under The Registration and Other Related Laws (Amendment) Act 2001, in particular, the provisions as contained under Section 12, which is to be
read with in consonance to Section 26 of the said Amendment Act, as a matter of fact, he submits that as on 25.10.1996 no registration was required
to be mandatorily made for agreement for sale executed in his favour by the father of the plaintiff/respondent for purpose of deriving benefit of
Section 53 of the Transfer of Property Act and, hence, he submits that once the registration was not mandatory, the same could be read in evidence
for the purposes to show that the possession of the property in question stood transferred to him under Section 53 of the Transfer of Property Act.
This argument of learned counsel for the appellant is unsustainable because by Section 6 of Amending Act the proviso to Section 49 of Registration
Act has been omitted, this will not made an unregistered void document to be valid to be read in evidence.
22. After having gone through both the judgments concurrently hold that the agreement for sale dated 25.12.1996 could not have been validly executed
by the father of the plaintiff/respondent because on the date of its execution, the plaintiff has already attained majority and father could not have
executed the deed dated 25.12.1996 and no right would be conferred upon defendant/appellant by virtue of the said document both the Courts had
rightly concurrently decreed the Suit of the plaintiff, as no right or title validly flowed by him.
23. Considering the arguments of the parties, who are present before this Court through their counsel, this Court is of the view that both the judgments
are concluded by the concurrent findings of facts recorded by both the Courts below and is of the view that there is no substantial question of law
involved in the present Second Appeal. Consequently, the Second Appeal fails and is, accordingly, dismissed. There will be no order as to cost.
