Delivery of possession of immovable property is not sine qua non for passing the title

Courts below have discussed lot of oral evidence on this issue. It was not necessary to go into oral evidence in view of the documentary evidence as is discussed above. Though for different reasons I concur with the Courts below that the plaintiff had proved the title. The question as to whether possession was or was not delivered to the plaintiff at the time of sale deed is immaterial to decide the question of title. Delivery of possession of immovable property is not sine qua non for passing the title. Even where possession of immovable property is not delivered, a title can pass in favour of the purchaser under the registered sale deed.
Ramesh akarte v baburao jaulkar

Reported in : 2008(3)BomCR56; 2008(4)MhLj314

Judge : C.L. Pangarkar, J.

Subject : Property;Civil

Decided On : Mar-07-2008

Case Number : Second Appeal No. 219 of 1992

Excerpt: 1. This is an appeal by the defendant who was unsuccessful in both the Courts below. 1 clearly averred that the suit house was purchased by Kamlabai's husband Baburao from Krishnarao and his mother 20 to 22 years back and since then Kamlabai is the owner. It may be mentioned further here that it is apparent from the judgments of the Courts below that defendant had failed to examine Kamlabai as a witness though she was brought before the Court under the warrant of arrest. This documentary evidence clearly establishes the title of the plaintiff under the sale deed of 1977. 8. Courts below have discussed lot of oral evidence on this issue. She was the best person available to state whether she had ever claimed hostile title against Krishnarao.

Judgment:

C.L. Pangarkar, J.

1. This is an appeal by the defendant who was unsuccessful in both the Courts below. The parties shall hereinafter be referred to as plaintiff and defendant.

2. The facts giving rise to the appeal are as follows: Plaintiff is the owner of the suit house, the same having been purchased from one Krishnarao Armarkar by a registered sale- deed dated 12.12.1977. Before the sale deed came to be executed there was also an agreement of sale between krishnarao Armarkar and the plaintiff on 09.09.1977. The plaintiff submits that the possession was handed over to the plaintiff. One Kamlabai Rokde was residing in the suit property 3 to 4 years prior to the execution of the sale deed in favour of the plaintiff. The defendant who is the neighboring plot owner, in order to grab the suit property got executed a sale-deed from Kamlabai Rokde in his favour on 30.09.1977. The defendant however could not take possession of the suit property and therefore he got annoyed and caused damage to the wall. There were proceedings under Section 107 of the Criminal Procedure Code against both plaintiff and the defendant. Some proceedings were also initiated against both parties under Section 145 Criminal Procedure Code. The learned S. D. M. appointed the Chief Officer of the Municipal Council as a Receiver and the Receiver took over the possession of the suit property. Plaintiff, therefore, submits that being the owner of the suit property he is entitled to possession of the suit property.

3. The defendant No. 1 filed Written Statement. He admits that he purchased the house from Kamalbai Rokde by sale deed dated 03.09.1977. It is alleged by the defendant that Kamlabai's husband Baburao had purchased the suit property from its original owner Krishnarao Armarkar and his mother. She had purchased the property 20 to 22 years ago. Therefore Baburao and his wife Kamlabai were living in the suit house as owner thereof. Since Kamlabai was not in a position to pay the taxes etc. and maintain the property she sold the suit property to the defendant. It is further contended that Kamlabai was in possession of the suit property as the owner thereof openly and to the knowledge of everybody and, therefore, she had become the owner of the suit property by adverse possession. It is contended that therefore no valid title passed in favour of the plaintiff and in fact defendant had become the owner of the suit property.

4. On these pleadings the learned Judge of the trial Court framed issues. He found that the plaintiff was the owner of the suit property by virtue of the sale deed executed in his favour. Kamlabai was not the owner of the suit house and therefore the defendant No. 1 is not the owner. The appellate Court concurred with the finding of the trial Court and dismissed the appeal.

5. The second appeal was admitted by Deshpande J. on grounds No. 8 and 9 as mentioned in the memo of appeal. Since the grounds are exhaustive the following substantial questions of law are formulated as below:

1. Whether the lower appellate Court fell in error in holding that the title passed in favour of the plaintiff under sale deed dated 12.12.1977 even though vendor himself was not in possession of the property and Kamlabai was in possession?

2. Whether the lower appellate Court ought to have framed a point for determination with regard to adverse possession?

6. The plaintiff/respondent claims to have purchased the suit property from Krishnarao Armarkar by a registered sale deed dated 12.12.1977. It is at (Ex. 67). On the other hand defendant No. 1 claims to have purchased the suit property from Kamlabai by registered sale deed dated 30.09.1977 (Ex. 75). The material question is which of the two i.e. Krishnarao and Kamlabai could pass a valid title in favour of the purchaser. In this regard, it would be first necessary to advert to the pleadings of the defendant No. 1. In para 4 and 9 of the Written Statement, defendant No. 1 clearly averred that the suit house was purchased by Kamlabai's husband Baburao from Krishnarao and his mother 20 to 22 years back and since then Kamlabai is the owner. Obviously, therefore, title of Krishnarao is admitted by defendant-appellant. First thing that therefore defendant will have to prove, is transfer of title by Krishnarao and his mother in favour of Baburao, the husband of Kamlabai. The suit property is an immovable property. It is admittedly worth more than Rs. 100/-

It could therefore be transferred by a registered instrument only. It was, therefore, necessary for the defendant to have produced the document i.e. the sale deed said to be executed by Krishnarao and his mother in favour of Baburao. It is not difficult to obtain a certified copy of the sale deed if such document is at all executed. No such document has been placed on record at all. In the circumstances it could not be said that Krishnarao had transferred the property in favour of Baburao. Consequently no title is therefore shown to have passed in favour of Baburao husband of Kamlabai. Resultantly, Kamlabai did not get any title upon death of Baburao. She could not therefore transfer any title in favour of defendant by a registered sale deed. On the other hand the plaintiff has purchased the suit property from Krishnarao under registered sale deed (Ex. 67). Since defendant admits title of Krishnarao as original owner, Krishnarao had every right to transfer the property. He was not divested of the title in the suit property since there is no proof that Krishnarao and his mother had executed any sale deed in favour of Baburao, husband of Kamlabai. He could therefore certainly pass title which he had in favour of plaintiff/respondent.

7. Further the plaintiff has placed on record a copy of the assessment register of Municipal Council at (Ex. 66). It shows that suit property is registered in the name of Krishnarao and Kamlabai is shown merely as an occupant. This position seems to have continued upto 1978. Obviously had Baburao or Kamlabai purchased the property their names would have been registered as owner in the Municipal Record. This document in fact corroborates the version of the plaintiff. It may be mentioned further here that it is apparent from the judgments of the Courts below that defendant had failed to examine Kamlabai as a witness though she was brought before the Court under the warrant of arrest. The learned Judge has rightly drawn an adverse inference against the defendant that had she been examined she would not have supported the case of the defendant.

This documentary evidence clearly establishes the title of the plaintiff under the sale deed of 1977.

8. Courts below have discussed lot of oral evidence on this issue. It was not necessary to go into oral evidence in view of the documentary evidence as is discussed above. Though for different reasons I concur with the Courts below that the plaintiff had proved the title. The question as to whether possession was or was not delivered to the plaintiff at the time of sale deed is immaterial to decide the question of title. Delivery of possession of immovable property is not sine qua non for passing the title. Even where possession of immovable property is not delivered, a title can pass in favour of the purchaser under the registered sale deed.

9. It was contended that the Courts below did not raise an issue of adverse possession. Although there is a pleading of the defendant to that effect no specific issue is raised is a fact, but then defendant did cross examine the plaintiff's witness Krishnarao, the original owner on this aspect. The cross examination itself shows that bearing in mind that plea the witness was cross examined. For instance it is elicited in cross examination that the witness did not raise any objection even when Kamlabai sold the house nor did he take any action against her. He further elicited that on the date of sale deed in favour of the defendant Kamlabai was in possession. It is, therefore, apparent that the parties did go to trial with an understanding that plea of adverse possession is set up. Therefore, even if issue is not there, the parties did lead evidence on that question. It would, therefore, be not necessary to remit the case back to the trial Court to have evidence on the said question.

10. Main evidence that needs to be considered is that of P. W. 2 Krishnarao alone, being the owner before the sale in favour of the plaintiff. It has come in the cross examination of P. W. 2 Krishnarao that one Malav Talathi was living in the suit house upto the year 1967 and thereafter the house was vacant for 5 years. It has come in evidence that there after Kamlabai started residing in the suit house. It is stated by P. W. 2 Krishnarao in examination-in-chief itself that she started residing in the house with his permission. To this statement there is no rebuttal or cross examination. It therefore appears that her first hostile act was only when she sold the house. It is not elicited that there was any dispute between Kamlabai and Krishnarao over the ownership and that she asserted her hostile title as against Krishnarao any time. Basic ingredient of adverse possession is assertion of hostile possession and title to the knowledge of the real owner. As said earlier there is no evidence to that effect. Assuming for the sake of argument that time had began to run against Krishnarao, let us see if 12 years period was completed. We have seen that it is elicited in the cross examination of Krishnarao that one Malav Talathi was living in the suit house upto the year 1967 and thereafter the house was vacant for 5 years. Therefore, it can be said that Kamlabai had come to reside in the suit house in the year 1973. She was, therefore, in possession from 1973. Even if we assume that time had begun to run from 1973 the suit has been filed in the year 1982, therefore, the period of 12 years had not expired when the suit was filed. For extinguishment of the title hostile possession must be for a period of 12 years. Again here also an adverse inference has to be drawn against the defendant in not examining Kamlabai. She was the best person available to state whether she had ever claimed hostile title against Krishnarao. Had she been examined she would not have supported the case of the defendant is the only inference that can be drawn. Since the period of 12 years had not expired the plaintiff's title was not extinguished. The substantial questions of law are therefore answered accordingly and the appeal is dismissed.

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