# Ashok v. Smt. Kusum Devi

- **Citation:** (2024) 7 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-04
- **Case number:** Second Appeal No. 242 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-v-smt-kusum-devi-52289
- **Pages:** 7

## Headnote

Law
-
Title/
Possession/Registration
-
Registration
Act, 1908 - Sections 17(f) & 49 - Indian
Contract Act, 1872 - Section 2(e) -
Transfer of Property Act ,1882 - Section
53-A, amended Section 54 - U.P. Civil
Laws (Reforms and Amendment) Act,
1976 - Section 30 - The title once vests in
plaintiff-respondent has not been divested
by any cogent and legal document and,
therefore, the defendant-appellant cannot
be treated as owner of the property and
even if for some point of time he might
have asserted possession over the same,
the same being patently illegal, no relief
can be granted to the appellant. (Para 21)

It is admitted on record that title in the property
vested in plaintiff-respondent by virtue of
registered sale deed dated 22.10.1999 executed
by Malkhan Singh. There is no other sale
deed conferring title upon the defendantappellant.
The
entire
case
of
the
defendant is based upon the matter
written on the back-side of the registered
sale deed. There is no dispute about the fact
that such writing was not made in the presence
of Sub-Registrar or at the time when the
registered sale deed was executed. This
writing was made two years after the
execution of the registered sale deed. The
same cannot be treated to be a registered
sale deed or even a registered agreement.
The two witnesses of the said writing were also
not produced before the courts for leading
evidence. (Para 12)

The appellant cannot get any benefit of
judgment in case of R. Hemlatha (infra)
inasmuch as the case before the Apex Court had
arisen out of State of Tami Nadu where a
different amendment was dealt with by the
Apex Court. In The provisions applicable in
the State of U.P. as regards mandatory
registration of an agreement were not
dealt by the Apex Court nor was there any
occasion for the same. Further, the matter
before the Supreme Court had arisen out of a
suit for specific performance of an agreement
for sale and facts of the present case are totally
7 All. Ashok Vs. Smt. Kusum Devi
807
different. The Court has already held that the
writing relied upon by the appellant
though termed as "sale" does not satisfy
the parameters even of an agreement and,
therefore,
the
entire
case
of
the
defendant-appellant has no basis at all.
(Para 22)

No substantial question of law arises for
consideration
in
this
appeal.
Second
appeal dismissed. (E-4)

Precedent distinguished:

R. Hemlatha Vs Kasthuri, Civil Appeal No. 2535
of 2023 @ SLP (C) No. 14884 of 2022, decided
on 10.04.2023) (Para 10)

Present appeal challenges two concurrent
decrees
passed
by
judgment
dated
01.02.2024.

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES
be exceptional circumstance warranting
imposition of excessive death penalty
which cannot be reversed.

69. Therefore, the finding of the trial
court on order of sentence is modified as it
is not a "rarest of rare" case, even though
the accused has committed a grave offence
of murder, therefore, we are of the opinion
that the death penalty awarded to the
appellant should be commuted to the life
imprisonment. However, the sentence of
fine imposed by the Trial Court is upheld.

70. With the aforesaid modification,
the appeal against the judgment of
conviction is dismissed, however, the
appeal qua order of sentence is modified
and the reference and jail appeal are
disposed of accordingly.

71. The accused-appellant is in
custody. He will undergo the remaining
sentence in accordance with law.

72. Record and proceedings be sent
back to the Trial Court forthwith.
----------
(2024) 7 ILRA 806
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 242 of 2024

Ashok ...Appellant
Versus
Smt. Kusum Devi ...Respondent

Counsel for the Appellant:
Smt. Kusum Devi

Counsel for the Respondent:
Km. Preete, Sri Amit Saxena

A.
Property
Law
-
Title/
Possession/Registration
-
Registration
Act, 1908 - Sections 17(f) & 49 - Indian
Contract Act, 1872 - Section 2(e) -
Transfer of Property Act ,1882 - Section
53-A, amended Section 54 - U.P. Civil
Laws (Reforms and Amendment) Act,
1976 - Section 30 - The title once vests in
plaintiff-respondent has not been divested
by any cogent and legal document and,
therefore, the defendant-appellant cannot
be treated as owner of the property and
even if for some point of time he might
have asserted possession over the same,
the same being patently illegal, no relief
can be granted to the appellant. (Para 21)

It is admitted on record that title in the property
vested in plaintiff-respondent by virtue of
registered sale deed dated 22.10.1999 executed
by Malkhan Singh. There is no other sale
deed conferring title upon the defendantappellant.
The
entire
case
of
the
defendant is based upon the matter
written on the back-side of the registered
sale deed. There is no dispute about the fact
that such writing was not made in the presence
of Sub-Registrar or at the time when the
registered sale deed was executed. This
writing was made two years after the
execution of the registered sale deed. The
same cannot be treated to be a registered
sale deed or even a registered agreement.
The two witnesses of the said writing were also
not produced before the courts for leading
evidence. (Para 12)

The appellant cannot get any benefit of
judgment in case of R. Hemlatha (infra)
inasmuch as the case before the Apex Court had
arisen out of State of Tami Nadu where a
different amendment was dealt with by the
Apex Court. In The provisions applicable in
the State of U.P. as regards mandatory
registration of an agreement were not
dealt by the Apex Court nor was there any
occasion for the same. Further, the matter
before the Supreme Court had arisen out of a
suit for specific performance of an agreement
for sale and facts of the present case are totally
7 All. Ashok Vs. Smt. Kusum Devi
807
different. The Court has already held that the
writing relied upon by the appellant
though termed as "sale" does not satisfy
the parameters even of an agreement and,
therefore,
the
entire
case
of
the
defendant-appellant has no basis at all.
(Para 22)

No substantial question of law arises for
consideration
in
this
appeal.
Second
appeal dismissed. (E-4)

Precedent distinguished:

R. Hemlatha Vs Kasthuri, Civil Appeal No. 2535
of 2023 @ SLP (C) No. 14884 of 2022, decided
on 10.04.2023) (Para 10)

Present appeal challenges two concurrent
decrees
passed
by
judgment
dated
01.02.2024.

(Delivered by Hon'ble Kshitij Shailendra, J.)

1. Supplementary affidavit filed
today, is taken on record.

2. Heard Ms. Preete, learned
counsel for the defendant-appellant and Sri
Amit Saxena, learned counsel for the sole
plaintiff-respondent and perused the record.

3. The instant second appeal is
listed for admission under Order 41 Rule
11 CPC.

4. One Malkhan Singh executed a
registered sale deed dated 22.10.1999 in
favour of the plaintiff-respondent Smt.
Kusum Devi. According to the case of the
plaintiff-respondent, she was enjoying
possession over the said property, however,
the defendant-appellant was interfering in
her possession and, consequently, Original
Suit No.375 of 2015 was instituted by her
claiming
a
decree
for
permanent
prohibitory injunction. She got an order of
temporary injunction and, when on a
particular date, the injunction order was not
extended, taking advantage of the same, the
defendant-appellant
took
forcible
possession
over
the
property
and,
consequently, plaint was amended claiming
a decree for possession too. A counter
claim was preferred by the defendantappellant claiming a decree for injunction
on the basis of his possession. The trial
court
decreed
the
original
suit
and
dismissed the counter claim. Two civil
appeals were filed against the said decree,
both were consolidated by the appellate
court and have been dismissed by a
common judgment dated 01.02.2024. Two
concurrent decrees, therefore, are under
challenge in this appeal. Defendant has not
challenged decree of dismissal of his
counter claim.

5. The contention of the learned
counsel for the defendant-appellant is that
though title of plaintiff-respondent is
admitted to the defendant-appellant at the
strength of the sale deed executed by
Malkhan Singh, the plaintiff, by entering
into a "transaction of sale" with the
appellant
on
25.06.2001,
delivered
possession of the property to him in lieu of
a sum of Rs.36,500/-. When asked, the
learned counsel referred to a matter
handwritten on the backside of the
registered sale deed, appended at page 20
of the supplementary affidavit filed today.
The entire defence in the suit as well as the
basis of the counter claim is the said
writing itself, whereas the entire claim and
defence of the plaintiff is the registered sale
deed executed by Malkhan Singh. The
matter written on the backside of the sale
deed, needs reproduction as under:-

 "आज जदनांक 25.6.2001 को श्रीमजत
कुसुम w/o जगदीश जनवासी देवीपुर प्रिम
िालमीजक नगर जजला िुलन्दशहर का प्लाट जो
808 INDIAN LAW REPORTS ALLAHABAD SERIES
िैनामे पर अंजकत है वो मु० 36500/- में श्री
अशोक कुमार s/o श्री छज्जा जन० अकिरपुर
पर० िु० शहर को बेचा गया जजसके आधे
18250/- होते है जो जक मैने नगद प्राि करके
बैिामा सुपुिन कर विया और जलखकर तहरीर
लगा जदया जो वक्त जरूरत काम आये।

जन०अ० कुसुम w/o जगदीश

 1. गवाह- सुरेश कुजलचरन

 2. गवाह- ह० अप० ह० राधेश्याम पुत्र
राम चन्द्र जसंह "

6. Both the courts below have
discarded the factum of entering into any
agreement or transaction of sale between
the parties. In so far as the language
handwritten on the backside of the sale
deed is concerned, it has been found to be
not tenable in the eyes of law for following
multiple reasons:-

 (i)
Factum
of
payment
of
Rs.36,500/- was not proved;

 (ii) Writing does not amount to a
sale though it mentions that the property
has been sold by the plaintiff Kusum to the
defendant Ashok Kumar;

 (iii) Two witnesses of the said
writing, namely, Suresh Kalicharan and
Murari had not been produced as witness;
and

 (iv) Such writing, in absence of a
valid registration, cannot confer any right
upon the defendant-appellant.

7. Learned counsel for the
appellant has vehemently argued that the
said writing should have been read as
evidence of the very agreement in terms of
proviso to Section 49 of the Registration
Act, 1908. The entire Section 49, as
applicable in the State of U.P., reads as
under:-

 "49. Effect of non-registration
of documents required to be registered.-
No document required by section 17 or by
any provision of the Transfer of Property
Act, 1882 (Act No.4 of 1882), or of any
other law for the time being in force, to be
registered shall-

 (a)
affect
any
immovable
property comprised therein, or

 (b) confer any power or create
any right or relationship, or

 (c) be received as evidence of any
transaction affecting such property or
conferring such power, or creating such
right or relationship, unless it has been
registered:

 Provided that an unregistered
document affecting immovable property
and required by this Act or the Transfer
of Property Act, 1882 (Act No.4 of 1882),
to be registered may be received or as
evidence of any collateral transaction not
required to be effected by registered
instrument."

8. The submission is that delivery
of possession in lieu of Rs.36,500/- by the
plaintiff to the defendant was a "collateral
transaction" not required to be effected by
any registered instrument and, therefore,
the courts below have fallen into an error of
law by emphasising upon the requirement
of registration. She has also referred to
definition of "contract" as provided under
7 All. Ashok Vs. Smt. Kusum Devi
809
Section 2(e) of the Indian Contract Act,
1872, which reads as under:-

 "2(e). Every promise and every
set of promises, forming the consideration
for each other, is an agreement"

9. Further submission is that the
suit initially filed was for a decree for
permanent prohibitory injunction, however,
by amendment, its nature was completely
changed and no issue was framed by the
trial court and the appellate court on such
change of nature. Learned counsel further
submits that dismissal of counter claim on
the ground of non-valuation is also an
illegal exercise of power as the defendant
was not granted any opportunity in this
regard.

10. It is also contended that
requirement of registration came into
existence on 24.09.2001, whereas the
agreement was executed on 25.06.2001
and, therefore, even unregistered document
could be read in evidence. In support of her
submission, learned counsel has placed
reliance upon a judgment of the Supreme
Court in the case of R. Hemlatha Vs.
Kasthuri (Civil Appeal No.2535 of 2023
@ SLP (C) NO.14884 of 2022, decided on
10.04.2023) and has referred to paragraph
no.12 of the judgment, which reads as
under:-

 "12. At this stage, it is required to
be noted that the proviso to Section 49
came to inserted vide Act No.21 of 1929
and thereafter, Section 17(1A) came to be
inserted by Act No.48 of 2001 with effect
from 24.09.2001 by which the documents
containing
contracts
to
transfer
or
consideration any immovable property for
the purpose of Section 53 of the Transfer of
Properties Act is made compulsorily to be
registered if they have been executed on or
after 2001 and if such documents are not
registered on or after such commencement,
then there shall have no effect for the
purposes of said Section 53A. So, the
exception to the proviso to Section 49 is
provided under Section 17(1A) of the
Registration Act. Otherwise, the proviso to
Section 49 with respect to the documents
other than referred to in Section 17(1A)
shall be applicable."

11. Per contra, Sri Amit Saxena,
learned counsel for the plaintiff-respondent
submits that the matter written on the
backside of the registered document has no
sanctity and, even otherwise, when the
plaintiff appeared in the witness box and
original sale deed was shown to her, she
denied her thumb impression on the writing
terming the same as forged and also refused
to identify the witnesses of the said writing.
As regards the amendment, it is argued by
him that once the amendment application
was allowed and no challenge was made
upto the appellate stage, such an argument
cannot be accepted at the second appellate
stage.

12. Having heard learned counsel
for the parties, the Court finds that it is
admitted on record that title in the property
vested in plaintiff-respondent by virtue of
registered sale deed dated 22.10.1999
executed by Malkhan Singh. There is no
other sale deed conferring title upon the
defendant-appellant. The entire case of the
defendant is based upon the matter written
on the back-side of the registered sale deed.
There is no dispute about the fact that such
writing was not made in the presence of
Sub-Registrar or at the time when the
registered sale deed was executed. This
writing was made two years after the
execution of the registered sale deed. The
810 INDIAN LAW REPORTS ALLAHABAD SERIES
same cannot be treated to be a registered
sale deed or even a registered agreement.
The two witnesses of the said writing were
also not produced before the courts for
leading evidence.

13. In so far as provisions
regarding sale are concerned, it is observed
that in U.P., U.P. Civil Laws (Reforms and
Amendment) Act, 1976, (U.P. Act No. 57
of
1976) has
been
enforced,
w.e.f.
1.1.1977. By virtue of Section 30 of this
Act, Section 54 of Transfer of Property Act
has been amended as follows:

 "30. Amendment of Section 54 of
Act 4 of 1882 - In Section 54 of the Transfer
of Property Act, 1882, hereinafter in this
Chapter referred to as the principal Act, -

 (a) In the second paragraph, the
words "of the value of one hundred rupees
and upwards" shall be omitted;

 (b)
the
third
and
fourth
paragraphs shall be omitted;

 (c) after the last paragraph, the
following paragraph shall be inserted,
namely: -

 "Such contract can be made only
by a registered instrument."

14. Similarly, by Section 32 of this
Act, Section 17 of the Registration Act has
been amended and Clause (f) has been
inserted in it.

 32. Amendment of Section 17 of
Act 16 of 1908 - In Section 17 of the
Registration Act, 1908, hereinafter in this
Chapter referred to as the principal Act -

 (a) In Sub Section (1) -
 (i) In clause (b) the words "of the
value of one hundred rupees and upwards",
shall be omitted;

 (ii) In clause (e) the words "of the
value of one hundred rupees and upwards",
shall be omitted;

 (iii)after clause (e), the following
clause shall be inserted, namely:

 (f) any other instrument required
by any law for the time being in force, to be
registered."

15. By virtue of the aforesaid
amendments w.e.f. 1.1.1977, an agreement
to sell of the immovable property is a
compulsorily registrable document in U.P.
and no un-registered agreement to sell can
be executed nor it can be taken in evidence
in view of Section 49 of the Registration
Act.

16. The definition of "sale" as per
Section 54 of Transfer of Property Act,
1882 reads as under:-

 "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 immoveable
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
immoveable 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.
7 All. Ashok Vs. Smt. Kusum Devi
811
 Delivery of tangible immoveable
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 immoveable 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."

17. It is, therefore, clear that
transfer of any tangible immoveable
property of the value of Rs.100/- and
upwards can be made only by a registered
instrument.

18. A perusal of the handwritten
matter shows that it is termed as a "sale of
immovable
property"
by
plaintiffrespondent Kusum Devi in favour of
defendant-appellant
Ashok
Kumar.
Admittedly, it is not a registered instrument
and, therefore, it cannot be treated as a sale
deed.

19. In so far as the submission that
the document does not require registration,
this Court is not in a position to accept the
same and proviso to Section 49, as
applicable in the State of U.P., does not
come for the rescue of the defendantappellant as transfer of property and also
delivery of possession cannot be treated as
a collateral transaction not required to be
effected by registered document.

20. The argument of the learned
counsel for the appellant based upon the
amendment made by Act No.48 of 2001 in
Registration
Act
with
effect
from
24.09.2001 does not impress the Court,
inasmuch as, in the State of U.P.,
requirement of registration, even of a
contract of sale is in force with effect from
01.01.1977. Irrespective of the same, the
matter written on the backside can neither
be treated to be a sale deed nor even an
agreement as it does not satisfy the
requirement of any of the two.

21. I have carefully examined the
findings recorded by the courts below on
the case of the parties as well as
interpretation of the writing in dispute.
Both the courts below have critically
examined
the
oral
and
documentary
evidence and each and every feature of the
said writing has been discussed at length.
Provisions of Section 53-A as argued by
the defendant-appellant before both the
courts below have also been rightly
interpreted. This Court is of the considered
opinion that title once vests in plaintiffrespondent has not been divested by any
cogent and legal document and, therefore,
the defendant-appellant cannot be treated as
owner of the property and even if for some
point of time he might have asserted
possession over the same, the same being
patently illegal, no relief can be granted to
the appellant.

22. The appellant cannot get any
benefit of judgment in case of R.
Hemlatha (supra) inasmuch as the case
before the Apex Court had arisen out of
State of Tamilnadu where a different
amendment was dealt with by the Apex
Court. The provisions applicable in the
State of U.P. as regards mandatory
registration of an agreement were not dealt
by the Apex Court nor was there any
occasion for the same. Further, the matter
before the Supreme Court had arisen out of
a suit for specific performance of an
agreement for sale and facts of the present
812 INDIAN LAW REPORTS ALLAHABAD SERIES
case are totally different. The Court has
already held that the writing relied upon
by the appellant though termed as "sale"
does not satisfy the parameters even of an
agreement and, therefore, the entire case
of the defendant-appellant has no basis at
all.

23. No substantial question of law
arises for consideration in this appeal and
summoning of lower court record for
further consideration is not required as
sufficient material is already appended
along with memo of appeal and the
supplementary affidavit filed today.

24. The instant second appeal has
no force and is, accordingly, dismissed.
----------
(2024) 7 ILRA 812
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Second Appeal No. 450 of 2024

Rambhool ...Appellant
Versus
Sheeshpal & Ors. ...Respondents

Counsel for the Appellant:
Sri Avadh Pratap Singh Shishodia, Sri Rahul
Kumar Tyagi

Counsel for the Respondents:

A. Civil Law - Second Appeal- Sale deed
executed by plaintiff-appellant sought to be
cancelled on the ground of fraud-sale deed
invalid for want of permission from the
Competent Authority.

B. No pleading in the plaint that the plaintiffappellant
belongs
to
Scheduled
Caste
Community- no pleading that permission under
Section 157-AA was required- No application for
additional evidence under Order 41 Rule 27 read
with Order 42 CPC filed- caste certificate cannot
be read in the present proceedings- argument
regarding non-compliance of Section 157-AA has
no force. (Paras 5 and 6)

HELD:
As far as the first argument based upon Section
157-AA of the Act, 1950 is concerned, the Court
finds that there was no pleading in the plaint
that the plaintiff-appellant belongs to Scheduled
Caste Community. The plea of permission from
the Competent Authority was taken in paragraph
no.10 of the plaint but it was not stated that
permission, as contemplated under Section 157AA, was required and even though it was not
necessary to plead any section of the Statute,
the pleading was to the effect that the property
was given on lease by the State Government
and, therefore, in absence of permission from
the Competent Authority/ District Magistrate,
sale could not be effected and the sale deed is
void. (Para 5)

Sri Tyagi has drawn attention of this Court
towards
Annexure
no.1
to
the
affidavit
supporting stay application, which is a photostat
copy of caste certificate dated 26.03.2021
demonstrating the alleged status of the plaintiffappellant as a person belonging to Scheduled
Caste Community. Admittedly, this document did
not form part of the record of the courts below
nor has any application for additional evidence
under Order 41 Rule 27 read with Order 42 CPC
by which the provisions of Order 41 have been
made applicable to second appeals, been moved
before this Court. Therefore, the photostat copy
of the document filed as Annexure no.1 cannot
be read in the present proceedings. Therefore,
argument on non-compliance of Section 157-AA
has no force. (Para 6)

C. Plea of fraud- presumption of validity of
instrument-consonant
with
provisions
of
Sections 58, 59 and 60 of the Registration Act,
1908-
rebuttable
presumption-no
cogent
evidence was led by plaintiff-appellant to rebut
the said presumption- Effect of acquisition
proceedings by U.P. Avas Vikas Parishad-
Sections 189 (c) and 190 (1)(d) of the UPZALR
Act, 1950-rights of tenure holder would extinct-