K.N. Phaneendra, J.
1. This appeal is preferred calling in question the judgment and decree passed in R.A. No. 114/2013 dated 20.11.2014 on the file of the Fast Tract Court, Basavakalyan, wherein the First Appellate Court has set aside the judgment and decree dated 31.10.2013 in O.S. No. 98/2007 and consequently dismissed the suit of the appellant/plaintiff.
2. I have heard the arguments of Sri. Ameet Kumar Deshpande, learned counsel for the appellant. I have carefully perused the judgment of the Trial Court as well as the records of the First Appellate Court. Though there is some legal question raised by the learned counsel, but according to me, it is not a substantial question of law, because the law is already settled in that particular aspect. Therefore, I do not find any strong reasons to frame any substantial question of law in this case. Therefore, the appeal deserves to be dismissed at the threshold at the time of admission for the following reasons:--
3. For the purpose of convenience and proper understanding, I would like to retain the ranks of the parties as per their ranking before the Trial Court.
4. The plaintiff (the appellant herein) filed suit in O.S. No. 98/2007 against the defendants (respondents herein) for declaration of their title and recovery of possession of the suit schedule property, which is an agricultural land bearing Survey No. 45/5 measuring 6 acres 12 guntas situated at Janawada Village.
5. The brief factual matrix as could be seen from the plaint as well as written statement are as follows:
6. It is the case of the plaintiff that father of Defendant Nos. 2 and 3 and father of one Sridevi were distant relatives and their common ancestor is one Manikappa. The great grandfather of defendant Nos. 1 and 2, the said Sridevi and her mother Kashi Bai have divided the properties of the family including the properties since more than 70 to 80 years. It is stated that their family had two lands in Sy. Nos. 44 and 45, out of which Survey No. 44 was fallen to the branch of ''Ancestor'' of Defendant Nos. 1 and 2 and Survey No. 45 was fallen to the Ancestor of Sridevi. It is further contended that the plaintiff used to cultivate the suit land on ''crop share basis and cash basis'' during the life time of one Amruthappa, who was none other than the father of the above noted Sridevci. During the life time of Amruthappa and after his death the plaintiff in fact continued the cultivation and Amruthappa, Kashibai have reposed great trust and confidence in the plaintiff. In this background, it is alleged that when Amruthappa fell ill, the plaintiff has paid Rs. 2,25,000/- as requested by Kasturi Bai and Sridevi on the promise that the said persons will agree to sell the suit land to the plaintiff for Rs. 3,08,400/- and the amount of Rs. 2,25,000/- was treated as earnest money and the balance amount has to be paid to Sridevi and Kashibai. It is stated that the said Kashibai also died later and Kasshibai being the owner of the suit land, during her life time had executed an agreement of sale in favour of the plaintiff on 03.01.2000 and the husband of Sridevi also has agreed to complete the said transaction. It is further stated that defendant Nos. 1 and 2 in order to grab the property, managed to get a compromise decree against the said Sridevi in O.S. No. 45/2003. They made Sridevi to believe that the Court proceeding is necessary to enter her name in the records of rights of the suit land. But subsequently, the plaintiff came to know about the said decree, as such, she filed a suit in O.S. No. 57/2004 for setting aside the said decree as the same is not binding against her and also for specific performance of the agreement executed by Kasturi Bai and others. In fact, Sridevi and her husband came to know about the fraud played by the defendants and they repented themselves for their act and in fact Sridevi executed sale deed for Rs. 3,25,000 on 29.11.2006 in favour of the plaintiffs in respect of the said suit by entering into a compromise in O.S. No. 57/2004. But due to some technical reasons, the sale deed did not came to be registered. Thereafter, the plaintiff has filed the present suit only for declaration of his title for recovery of possession of the suit property from the defendants.
7. The defendants have seriously contested the suit. Though they have admitted the relationship between Sridevi and others, it is stated that the father of Sridevi namely, Amruthappa had not only two lands viz., namely Survey Nos. 44 and 45, but there are some other properties. He denied the case of the plaintiffs and it is stated that the said Sridevi is the only daughter to her parents and after her marriage her mother Kasturibai was residing in Fatimapur. It is further stated that Uncle of defendant No. 1 and father of defendant No. 2 Basavanthraya were the owners in possession of the suit land and the said Basavanthraya died about 45 years ago and Kasturibai was residing in the village called Fathimapur. The step-mother Gundamma and mother of defendant No. 1: Awwamma were looking after Amruthappa by remaining joint in the family. It is the further case of the defendants that the allegations with regard to cultivation of the land as stated by the plaintiff was denied as false and in fact all other allegations with regard to agreement of sale and consent given by Sridevi and her husband, and Kasturibai and execution of agreement by Kasturibai and others are all emphatically denied by the defendants. They sought title on themselves on the basis of the decree granted by the Court in O.S. No. 45/2003. Till today the said decree is not yet set aside. It is urged by the defendants that Sridevi has no right, title and interest over the property by virtue of the decree in O.S. No. 45/2003 as she did not execute any agreement or sale deed in favour of the plaintiffs. More over the plaintiff never acquired any right, title or interest over the property. On the other hand, by virtue of the said decree of the Court in O.S. No. 45/2003, they have been in possession and enjoyment of the property as absolute owners. Therefore, they pleaded for dismissal of the suit.
8. The Trial Court on the basis of the above pleadings, framed the following issues:--
"i) Whether the plaintiff proves that he is the owner and possessor of the suit land?
ii) Whether the plaintiff proves that the decree in O.S. No. 45/2003 obtained by the lst defendant is an out come of misrepresentation, fraud and not binding on him, as alleged?
iii) Whether the plaintiff proves that he is entitled for the relief of rectification to record of rights in respect of suit land?
iv) Whether the plaintiff proves the alleged interference of the defendants?
v) Whether the defendant No. 1 proves that the plaintiff has brought into existence of false and fictitious sale deed as alleged?
vi) Whether defendant No. 1 proves that the suit of the plaintiff is bad for non-joinder of parties?
vii) Whether the plaintiff is entitled for the reliefs sought for?
viii) What order or decree?"
Additional Issues:
"i) Whether suit is maintainable as contended in Additional Written Statement?
ii) Whether plaintiff is entitled for recovery of possession of suit property?
iii) Whether plaintiff further proves that said Kashibai had executed an agreement of sale dated 03.01.2000?"
9. The plaintiff has examined himself as P.W.1 and got examined the witnesses as P.Ws. 2 to 4 and marked the documents as Exs. P1 to P19. The defendant - 1 was examined as DW. 1 and he also got examined one more person namely Annaraya as DW.2 and also got marked Exs. D1 to D17.
10. The Trial Court after appreciating the oral and documentary evidence has answered Issue Nos. 1, 3 and 7 in the affirmative and Issue Nos. 4, 5 and 6 in the negative and held that Issue No. 2 does not survive for consideration.
11. After going through the evidence on record the Trial Court has come to the conclusion that the said Sridevi had some alienable interest in the property, therefore, the plaintiff has acquired title over the property and he exercised all the rights as if the owner of the said property from the date of sale transaction between the plaintiff and the said Sridevi. Therefore, merely because the sale deed has not been registered, it will not take away the right of the plaintiff who acquired right, title and interest over the suit property. Therefore, the Trial Court has come to the conclusion that the plaintiff has proved the he is the absolute owner of the suit schedule property and granted decree of declaration of his title and also directed defendant No. 1 to hand over the vacant possession of the suit land within two months from the date of the order passed by the Trial Court.
12. Being aggrieved by the said judgment, the defendant has preferred the appeal before the First Appellate Court in R.A. No. 114/2013 questioning the very jurisdiction of the Trial Court to grant such decree without there being a registered sale deed in favour of the plaintiff. Therefore, though many grounds are taken-up by the appellant/plaintiff, they are contested by the defendants before the First Appellate Court. The First Appellate Court considering the grounds of appeal, has formulated three points for consideration, which are as follows:--
"i) Does appellant proves that the finding of Trial Court that, decree in O.S. No. 45/2003 has been obtained by playing fraud and misrepresentation and therefore not binding upon the plaintiff is illegal one?
ii) Does appellant proves that, the finding of the Trial Court that the plaintiff comes absolute owner of the suit property by virtue of execution of unregistered sale deed by the Sridevi during the pendency of earlier suit bearing O.S. No. 57/2004 is against the settled principles of law and therefore, it is illegal?
iii) Does Trial Court judgment and decree under challenge needs to be interfered with?"
13. In my opinion, he second point framed by the First Appellate Court play a dominant role which goes to the root of the case of the plaintiff i.e. to say whether the plaintiff has acquired any right, title and interest over the suit schedule property by virtue of execution of an unregistered sale deed by Sridevi during the pendency of earlier suit proceedings in O.S. No. 57/2004 and whether it is against the settled principles of law and therefore, the said transaction is illegal.
14. Answering the said points in the affirmative, ultimately, the First Appellate Court held that the trial Court has committed serious legal error in granting declaratory nature of decree in favour of the plaintiff. Therefore, it set aside the judgment of the Trial Court and dismissed the suit of the plaintiff. However, the remedy is also kept open by the First Appellate Court by providing opportunity to the said Sridevi to approach the competent Court to challenge the compromise decree in O.S. 45/2003 holding that the plaintiff was not a party to the said O.S. No. 45/2003 and he has no locus-standi to question the said judgment and decree. It is only between Sridevi and others, who can have to locus to question the said judgment and decree passed in the said suit.
15. Being aggrieved by the said judgment of the First Appellate Court, the present second appeal is preferred.
16. In view of the above said circumstances and the pleadings of the parties and the observations made by the Trial Court and the First Appellate Court, it is quite curious to note here the only point that would arise for consideration, which is as under:--
"Whether the First Appellate Court has committed any serious error in holding that the plaintiff has not acquired any right, title and interest over the property by means of any registered document".
17. The First Appellate Court in fact has relied upon Section 47 of the Registration Act and also several rulings of this Court, particularly in a decision reported in ILR 2008 KAR 2245 (C) [Binnimil Labour Welfare House Building Cooperative Society Ltd. v. D.R. Mruthyunjaya Aradhya], wherein it was held that,
"........non-registration of an instrument-provisions of Sections- 47, 48 and 49 - Registration of an instrument-Effect of non registration- Transfer of title-Legality of transaction - HELD, A combined reading of Sections- 47, 48 and 49 makes it clear that, an instrument which purports to transfer title to the property requires to be registered, the title does not pass until registration has been effected."
18. I will go one step further to ascertain, whether this observation of the First Appellate Court is proper or not?
19. The Transfer of Property Act recognize several modes of transfers. I do not venture upon to discuss with regard to the other modes of transfers except the sale which is involved in this particular case. The Transfer of Property Act deals with the sale of immovable properties. It is worth to note hear the provision of Section 54 of the T.P. Act, which reads as under:--
"Sec. 54. "Sale" defined.--"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 the 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.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale,- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property."
20. A perusal of Section 54 of the T.P. Act clearly indicates that the sale is nothing but the transfer of ownership in exchange of a price paid or promised or part paid or part promised.
21. This Section clearly mandates that the ownership can only be acquired over the property in exchange of price paid or promised only on the basis of transfer recognized under the T.P. Act. Further, it is clarified in the said provision that such transfer if it is in the case of tangible immovable property of value of Rs. 100/- and onwards the transaction can be made only by a registered instrument. Rest of the provision is not necessary to be discussed.
22. Therefore, on a meticulous reading of this provision, the words used ''such transfer'' refers to transfer of immovable property and only on the basis of such transfer the ownership will be conferred on the property. Therefore, a combined reading of Section 54 of the T.P. Act coupled with the Registration Act indicates that, a particular thing has to be done in a particular manner in accordance with the statute. If it is not done in such a manner, it will be a nullity. Therefore, under Section 54, if sale transaction is taken place, then only operation of transfer comes into play.
23. Section-8 of the T.P. Act further clarifies that unless different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee with all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
24. There is no necessity to discuss what are the legal incidents. But the proviso clearly indicates that once the transfer is effected in accordance with Section 54 of the T.P. Act and Registration Act, then only the transferee will get all the right, title and interest which were vested in the previous owner and it will be divested in favour of the transferee.
25. Therefore, looking to the above facts and circumstances of this particular case, the unregistered deed, at any stretch of imagination, will not confer any right, title or interest over the property in order to claim declaration of title over the suit property. The Judicial Courts always require a party to prove his case in accordance with the law of the land recognized.
26. Learned counsel for the appellant further argued that there is no dispute between the previous owner and the plaintiff. The previous owner has admitted the title of the plaintiff in O.S. No. 57/2004. Therefore, there is no dispute between the previous owner and the plaintiff with regard to the title. But here, it is to be specifically noted that the plaintiff is not claiming his title over the previous owner. It is a suit against the 3rd party, who claims to have acquired title over the property by some other way. It is not the case of the defendant that the defendant has sought for any decree against the plaintiff. It is the plaintiff who claimed decree against the defendant, it is the burden on him to establish before the Court that the title acquired by him under the modes recognized by any Statute for the time being in force which will confer any right, title and/or interest over the property. In that context, even if the plaintiff has been exercising his right as if owner or the previous owner by virtue of an admission and accepted the title of the plaintiff, such modes are not recognized under the Statute. Therefore, at any stretch of imagination, it can be said that the plaintiff has acquired the suit schedule property under any Statute for the time being in force.
27. Looking to the above said circumstances, I am of the opinion that the First Appellate Court has not committed any error though some legal aspects are raised and discussed, but it cannot be said that it is a substantial question of law involved in this case. Hence, the appeal filed by the appellant deserves to be dismissed. Accordingly, the appeal is dismissed.
