We find from the judgment of the Trial Court and the First
Appellate Court that the respective parties had led evidence of
execution and subsequent registration of the deeds but the first
two courts did not reject the contention of the second set of
defendants that there was no execution by Madegowda (since
deceased) of the deed of sale to Manchegowda (since deceased).
The case has been decided in favour of the plaintiff on the
ground that the buyer was not present at the time of
registration of sale deed. There is evidence to the effect that the
second defendant (Manchegowda) had not come to the office of
the SubRegistrar
at the time of execution of the sale deed. But
as per law as it stood at the material point of time, there was no
necessity of presence of purchaser at the Registration Office
during the registration of sale deed. The deed was executed by
Madegowda and that aspect has not been disputed. The deed in
question does not fall within Sections 31, 88 and 89 of the
Registration Act. Section 32 of the said Act does not require
presence of both parties to a deed of sale when the same is
presented for registration.
(NonReportable)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3975 OF 2010
H.P.Puttaswamy Vs Thimmamma
ANIRUDDHA BOSE,J.
Dated:Dated: 24th January, 2020.
The main dispute involved in this appeal concerns the
question of necessity of presence of a purchaser of immovable
property before the authority under the Registration Act, 1908 at
the time of effecting registration of a deed of conveyance. In the
suit, out of which this appeal arises, the plaintiff claimed
declaration of himself as the lawful owner in possession of the
suit property. The plaintiff is the appellant before us. This suit
was instituted on 31st March 1989 and was registered as Original
Suit No.132 of 1989 in the Court of Civil Judge (Junior Division)
Malavalli. The plaintiff also claimed permanent injunction
against the defendants restraining them from interfering with his
peaceful possession of the suit property and enjoyment thereof.
The property in question comprises of approximately 4500 square
ft. of land in a village by the name of Hittanahalli Koppalu in
Malavallu Taluk in the State of Karnataka. Originally, this
property bore site No.21 which was subsequently numbered 23.
The plaintiff’s case before the Trial court was that this property
was allotted to one Gende Veeregowdana Nathegowda under a
village shifting scheme. In the suit, the plaintiff contended that
he had come in possession of the subject property initially as a
tenant and subsequently as the purchaser thereof. He has run a
case before the Trial Court that he has been in possession of the
suit property for about twenty years prior to filing of the suit.
Respondent Nos. 7 to 9 in this appeal derived their interest in the
property through one Madegowda (since deceased), son of the
original allottee Gende Veeregowdana Nathegowda. In the suit,
these three respondents were defendant Nos.1(a), 1(b) and 1(c).
Their predecessor, Madegowda was originally impleaded as
defendant No.1. The Respondent Nos. 1 to 6 are legal
representatives of one Manchegowda (since deceased), who
contested the claim of ownership of the plaintiff over the subjectproperty.
Said Manchegowda was impleaded as the second
defendant in the suit. On his demise, respondent Nos.1 to 6 were
substituted as defendant Nos.2(a) to 2(f). They have disputed
plaintiff’s possession of the suit property. They claim to be actual
owners of the property through their predecessor.
2. There have been litigations in the past over the same
property among the same set of parties or their predecessors.
Madegowda had instituted a suit for declaration and permanent
injunction against Manchegowda. The earlier suit registered as
O.S. No.675 of 1971, was instituted in the Court of Munsiff at
Mandya in the year 1971 (subsequently renumbered as O.S. No.
61/1974) in the Court of Munsiff, Malavalli. Madegowda had
impleaded the plaintiff and Manchegowda as defendants in the
said suit. Complaint of Madegowda in that suit was disturbance
of his possession. After contest at different levels of the judicial
hierarchy, that suit was ultimately dismissed on 23rd March,
1989 at the instance of the plaintiff Madegowda only. The order
of dismissal was made on as it appears from paragraph 4 of the
plaint of the suit from which the present proceeding originates
records:“
For objection if any objection filed. Heard Sri
N.G., C.S.S. K.S.S. The defts. 2 right as a
4
tenant shall not be affected by disposes of the
suit as per memo filed by plff.
Suit is dismissed without cost.”
(quoted verbatim from the paper book)
3. In the present proceeding, basis of the plaintiff’s claim was
an agreement for sale executed on 10th April, 1981 between the
plaintiff and Madegowda in respect of the same property, which
was followed by execution of a deed of sale on 28th May 1981. We
must point out here that the date of execution of sale deed in
favour of the plaintiff has been referred to in the Trial Court
judgment in some places as 21st May 1981. But that factor does
not have any major impact on the outcome of the case as both
these dates are subsequent to the date on which sale is claimed
to have been executed by Madegowda (since deceased) in favour
of Manchegowda (since deceased). That is the source of dispute in
the subject suit. We shall, however, treat 28th May 1981 as the
date of registration of the said deed as in course of submission,
that was the date referred to by the learned counsel for the
appellant. The subject suit was contested by the two sets of
defendants, being legal representatives of said Madegowda (the
first set) and the legal representatives of Manchegowda (the
5
second set). First set of defendants disputed genuineness of the
sale deed of 28th May 1981 which formed foundation of the
plaintiff’s claim. Plea was taken by the second set of defendants
that the original owner, on 21st April, 1981, had executed a deed
of sale in favour of Manchegowda (since deceased). This set of
defendants have also disputed title of Madegowda over the suit
property. It has been contended on their behalf that the Village
Panchayat had cancelled the allotment to Gende Veeregowdana
Nathegowda and had resolved to issue grant certificate in respect
of the same site on 15th November, 1963 in favour of
Manchegowda and the latter was put in possession thereof.
4. This stand of the second set of defendants was not accepted
by the Trial Court and the First Appellate Court. The Trial Court
sustained the plaintiff’s case primarily on the ground that the
sale deed through which legal representatives of Manchegowda
staked their claim over the property was not genuine. The Trial
Court found that the original defendant No.2 i.e. Manchegowda,
as a purchaser was not present at the time of execution of the
sale deed before the SubRegistrar
and on that count the
aforesaid finding was rendered. Otherwise, the execution of the
6
deed in favour of Manchegowda, as claimed, was prior in point of
time (on 21st April 1981). The Trial Court proceeded on the basis
that the sale deed through which the plaintiff claimed to be the
owner of the property was valid. We find from the judgment of the
Trial Court that the plaintiff had proved the sale deed in course of
the trial. The claim of cancellation of the allotment of the suit
property in favour of Madegowda’s predecessor and subsequent
allotment in favour of Manchegowda was not believed by Trial
Court and the First Appellate Court. The second set of
defendants were unsuccessful before the First Appellate Court.
The First Appellate Court on the whole accepted the reasoning of
the Trial Court. In the appeal filed by the legal representatives of
Manchegowda under Section 100 of the Code of Civil Procedure,
1908, the High Court found the sale deed dated 21st April, 1981
to be valid relying on Sections 32, 34 and 36 of the Registration
Act, 1908 read with Rule 41 and 71, Karnataka Registration Rule
1965. The High Court observed and held:“
14.A combined reading of the above sections
of the Registration Act and the Rules
mentioned above makes it clear that the
presence of the purchaser is not required
when the document is presented for
registration before the SubRegistrar.
The
7
Trial Court has failed to take note of the
aforesaid provision of law of the Registration
Act and has erred in holding that merely
because the defendant was not present the
sale deed in his favour cannot be taken as
valid in law. The said conclusion reached is
contrary to the above mentioned provisions of
the Registration Act and the Rules. As such,
the said finding cannot be sustained in law.
15.Once the sale deed in favour of the
defendant is held to be valid in law and the
said sale deed Ex.D1
being executed earlier
in point of time by the vendor Manchegowda,
the question of the said vendor Manchegowda
retaining any interest in the suit property will
not arise and, as such, he could not have
once again sold the very same property on a
later date i.e. 28.5.1981 in favour of the
plaintiff. Therefore, the substantial question
of law raised is answered in the negative.”
5. On the question of possession of the suit property asserted
by the second set of defendants, however, the High Court held:“
Coming to the possession aspect of the case,
though the learned counsel for the appellants
referred to the evidence of D.W.4 to submit
that the plaintiff was thrown out of the suit
property by the police and the panchayat
members, yet the evidence of the said witness
will have to be assessed in the light of the
other evidence on record and more
particularly, the evidence of the plaintiff
himself. The plaintiff, in the course of his
evidence, has denied all the suggestions put
to him and has reiterated that he has been in
possession of the suit property from a very
long time and right from the agreement of
8
sale. Considering the overall evidence placed
on record, the trial court has held that the
possession has been with as plaintiff and the
lower appellate court also concurred with the
trial court. As such, the said finding, being a
concurrent finding of fact of the courts below
and also not appearing to be either a perverse
finding of a finding based on no evidence, in
so far as the conclusion reached by the trial
court as regards the plaintiff being in
possession of the suit property is concerned,
the said finding requires no interference.”
6. So far as the provisions of Registration Act, 1908 is
concerned, the law requires presentation of the document to be
registered at the proper registration office by following categories
of persons:“
32. Persons to present documents for
registration.—Except in the cases
mentioned in [Sections 31, 88 and 89],
every document to be registered under
this Act, whether such registration be
compulsory or optional, shall be
presented at the proper registration
office,(
a) by some person executing or claiming
under the same, or, in the case of a copy
of a decree or order, claiming under the
decree or order, or
(b) by the representative or assign of such
a person, or
(c) by the agent of such a person,
representative or assign, duly authorised
by powerofattorney
executed and
9
authenticated in manner hereinafter
mentioned.”
7. The plaintiff has not disputed that the vendor or seller i.e.
Madegowda had executed the document (first sale deed) and we
do not find any doubt expressed over his presence before the
Registering Authority. No case has been made out either that
the deed of conveyance carried any collateral obligation on the
part of the purchaser, in this case being Manchegowda (since
deceased). The plaintiff has not made out a case of acquiring
title under the principle of part performance as incorporated in
Section 53 (A) of the Transfer of Property Act, 1882. No pleading
to that effect in the plaint has been made out.
8. We find from the judgment of the Trial Court and the First
Appellate Court that the respective parties had led evidence of
execution and subsequent registration of the deeds but the first
two courts did not reject the contention of the second set of
defendants that there was no execution by Madegowda (since
deceased) of the deed of sale to Manchegowda (since deceased).
The case has been decided in favour of the plaintiff on the
ground that the buyer was not present at the time of
registration of sale deed. There is evidence to the effect that the
second defendant (Manchegowda) had not come to the office of
the SubRegistrar
at the time of execution of the sale deed. But
as per law as it stood at the material point of time, there was no
necessity of presence of purchaser at the Registration Office
during the registration of sale deed. The deed was executed by
Madegowda and that aspect has not been disputed. The deed in
question does not fall within Sections 31, 88 and 89 of the
Registration Act. Section 32 of the said Act does not require
presence of both parties to a deed of sale when the same is
presented for registration. In such circumstances, we do not
find any reason to interfere with the judgment of the High
Court. The present appeal is accordingly dismissed.
…………………………….J.
(Deepak Gupta)
…………………………….J.
(Aniruddha Bose)
New Delhi,
Dated: 24th January, 2020.
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