# Yogendra Pal Singh v. Hari Singh & Ors

- **Citation:** (2020) 8 ILRA 310
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Second Appeal No. 277 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-pal-singh-v-hari-singh-ors-46043
- **Pages:** 8

## Headnote

(A) Civil Law - Code of Civil Procedure
,1908 - Plaintiffs-respondents filed a suit for
permanent injunction against the defendantappellant - ground - they are the owners of
the property in question - on the basis of a
registered sale deed executed in favour of
their father - defendant-appellant is trying to
dispossess them - trial Court allowed the suit
for injunction - ground - receipt does not
confer any right or title to the defendant -
failed to prove the possession - suit decreed
by the trial Court - appeal filed by the
defendant was dismissed by the lower
appellate court. (para -3)

HELD:- No substantial questions of law arise
in the present second appeal and the other
8 All. Yogendra Pal Singh Vs. Hari Singh & Ors.
311
questions that have been framed in the
memo of appeal are related to the findings of
facts. The findings recorded by the courts
below are not perverse in nature so as to
attract any substantial question of law. (Para
- 23)

Second Appeal dismissed. (E-7)

List of Cases cited:-

## Text

310 INDIAN LAW REPORTS ALLAHABAD SERIES
Madras High Court and we think that
while the view taken by. the Bombay
High Court is rather narrow the one taken
by the former High Court of Nagpur is
too wide. The proper test for determining
whether a question of law raised in the
case is substantial would, in our opinion,
be whether it is of general public
importance or whether it directly and
substantially affects the rights of the
parties and if so whether it is either an
open question in the sense that it is not
finally settled by this Court or by the
Privy Council or by the Federal Court or
is not free from difficulty or calls for
discussion of alternative views. If the
question is settled by the highest Court or
the general principles to be applied in
determining the question are well settled
and there is a mere question of applying
those principles or that the plea raised is
palpably absurd the question would not
be a substantial question of law."
(emphasis supplied)

22. Therefore, it is clear that merely
because in the substantial questions of
law so framed in the memo of appeal
involving interpretation of any particular
provision of the law by itself could not be
substantial questions of law.

23. In the opinion of this Court, no
substantial question of law is involved in
the present appeal, which requires any
interpretation by this Court in view of the
law laid down by Hon'ble Apex Court in
Sir Chunilal vs. Mehta and sons Ltd
(supra) and the questions framed in the
memo of appeal, even if are treated to be
questions of law, they are not open to
interpretation.

24. I have already considered this
issue in the case of (Harihar Tiwari vs.
Kshetriya Sri Gandhi Ashram (Second
Appeal No. 94 of 2020) decided on
27.1.2020.

25.

For
the
discussions
made
hereinabove I find that no substantial question
of law is involved in the present case.

26. The appeal is devoid of merits
and is accordingly dismissed.
----------
(2020)08ILR A310
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Second Appeal No. 277 of 2020

Yogendra Pal Singh ...Appellant
Versus
Hari Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Arjun Singhal, Sri Sunil Kumar Singh

Counsel for the Respondents:
-----

(A) Civil Law - Code of Civil Procedure
,1908 - Plaintiffs-respondents filed a suit for
permanent injunction against the defendantappellant - ground - they are the owners of
the property in question - on the basis of a
registered sale deed executed in favour of
their father - defendant-appellant is trying to
dispossess them - trial Court allowed the suit
for injunction - ground - receipt does not
confer any right or title to the defendant -
failed to prove the possession - suit decreed
by the trial Court - appeal filed by the
defendant was dismissed by the lower
appellate court. (para -3)

HELD:- No substantial questions of law arise
in the present second appeal and the other
8 All. Yogendra Pal Singh Vs. Hari Singh & Ors.
311
questions that have been framed in the
memo of appeal are related to the findings of
facts. The findings recorded by the courts
below are not perverse in nature so as to
attract any substantial question of law. (Para
- 23)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1. St. of U.P. Vs D.J. & ors., AIR 1997
Supreme Court 51

2. M/S Sada Ram Ganga Pd. Vs U.O.I., AIR
1982 Allahabad 246

3. Sir Chunilal vs. Mehta & sons Ltd Vs
Century Spining and Manufacturing Co. Ltd,
AIR 1962 SC 1314

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the
defendant-appellant and perused the
record.

2. Present appeal has been filed
challenging the judgement and decree
dated 17.1.2020 passed by Additional
District Judge, Amroha in Civil Appeal
No. 78 of 2018 by which appeal filed by
the defendant-appellant, arising out of
judgement and decree dated 25.8.2018
passed by the Civil Judge (Sr. Division),
Amroha decreeing the suit of the
plaintiff-respondent, was dismissed.

3. The plaintiffs-respondents filed a
suit for permanent injunction against the
defendant-appellant on the ground that
they are the owners of the property in
question on the basis of a registered sale
deed dated 13.9.1971 executed in favour
of their father and the defendantappellant is trying to dispossess them.
The defendant-appellant came out with a
case that half of the property was sold by
father of the plaintiffs-respondents to the
father of the defendant-appellant and a
receipt dated 6.12.1971 was executed. It
was asserted that the possession was
handed over to the defendant-appellant
and he is in possession over the property
in question. The registered sale deed
dated 13.9.1971 was filed by the
plaintiffs-respondents and the defendantappellant
filed
the
receipt
dated
6.12.1971, for a sum of Rs. 520/- which
is also on record as paper no. 22-Ga. The
boundaries of the property have been
shown in the receipt. The trial Court
allowed the suit for injunction on the
ground that the receipt does not confer
any right or title to the defendant and he
has also failed to prove the possession. It
was asserted that the documentary
evidence in respect of the possession i.e.
photographs and other receipts etc. could
not prove that the same are in respect of
the property in question as it was
admitted by the defendant that he has
several properties in the village and the
electricity bill and other connection
receipts etc. could not establish their
possession over the property in question
or that they are in respect of the property
in question. It was also found that the
defendant is alleging the transfer of the
immovable property, however, alleged
receipt dated 6.12.1971, which is being
claimed to be a sale deed, is not
registered as required under Section 17 of
the Indian Registration Act, 1908 and
therefore, the same is not a valid
document in law regarding transfer of
immovable property for consideration.
The suit was decreed by the trial Court
and the appeal filed by the defendant was
dismissed by the lower appellate court.

4. Challenging the impugned
judgment, submission of learned counsel
312 INDIAN LAW REPORTS ALLAHABAD SERIES
for the appellant is that the defendantappellant is in possession over the
property in question since 6.12.1971 and
he has been residing there since then. He
further submits that the courts below
have committed gross mistake of law in
rejecting and discarding receipt the paper
no. 22-Ga dated 6.12.1971, which was
about 30 years old. The possession over
the property in question has been duly
proved. Submission is that the findings
recorded by the courts below are wholly
perverse in nature. Attention was also
drawn to the substantial questions of law
framed in the memo of appeal. In support
of the arguments the provisions of
Sections 17 and 49 of the Indian
Registration Act, 1908 and Section 53-A
of the Transfer of the Property Act, 1882
were also referred to. Submission is that
even if the document / receipt dated
6.12.1971 is not a registered document,
still in view of the provisions of Section
49 of the Indian Registration Act, 1908,
the same can be looked into as evidence
of any collateral transaction not required
to be effected by registered instrument.
He submits that the defendant-appellant
is in possession since 6.12.1971 and his
possession cannot be disturbed by the
plaintiffs-respondents
and
the
said
document is binding on the parties. He
has placed reliance on a judgement of
Hon'ble Apex Court rendered in the case
of State of Uttar Pradesh vs. District
Judge and others, AIR 1997 Supreme
Court 51 (paragraph 6). He further
submits that issue regarding possession
of the defendant-appellant should have
been framed and thus, the matter is liable
to be remanded back for framing such
issue and deciding the same on merits. In
support of this argument, he has placed
reliance on a judgment of Hon'ble Single
Judge of this Court in M/S Sada Ram
Ganga Pd. vs. Union of India AIR 1982
Allahabad 246.

5.

I
have
considered
the
submissions of learned counsel for the
defendant-appellant and perused the
record as well as the substantial questions
of law framed in the memo of appeal,
which are quoted as under:

"(A)
Whether
a
suit
of
injunction can be decreed in the events
the plaintiff has failed to prove and
establish
averments
regarding
his
possession and ownership over land in
dispute made in plaint and courts below
have committed illegality in decreeing
the suit.

(B) Whether plaintiff who has
not come with clean hands in filing
injunction
suit
against
defendant,
miserable failing in establishing prima
facie case, balance of convenience and
irreparable
injury,
the
decree
of
injunction passed by courts below is
sustainable in the eyes of law.

(C) Whether section 17 of
Indian Registration Act 1908 completely
prohibits
reliance
on
unregistered
document as has been observed by court
below
and
the
decree
passed
in
consequence is sustainable.

(D) Whether the defendant
appellant's possession for about 30 years
over land in dispute, which has been duly
proved and established can be ignored in
passing decree of injunction against him.

(E) Whether the decree passed
by courts below based on misreading and
misinterpreting of evidence placed on
record is sustainable in the eyes of law.

(F) Whether the burden of
proving plaintiff case having been
wrongly shifted on defendant and decree
passed
thereafter
is
liable
to
be
sustained.
8 All. Yogendra Pal Singh Vs. Hari Singh & Ors.
313

(G)
Whether
the
suit
of
injunction preferred after 30 years is
barred by limitation and decree passed is
liable to be sustained."

6. That apart, learned counsel for
the appellant further submits that one
more substantial question of law arises in
the present case is as to whether the
possession of the defendant-appellant can
be disturbed in view of provisions of
Section 53-A of the Transfer of Property
At, 1882?

7. In the present case, the execution
of the registered sale deed dated
13.9.1971 executed in favour of the
father of the plaintiffs-respondents is not
in dispute. The case of the defendantappellant is that he is owner in
possession on the basis of the receipt
dated 6.12.1971 paper no. 22-Ga. The
case of the plaintiffs-respondents is that
by registered sale deed, which is more
than
30
years
old,
the plaintiffsrespondents are the owners in possession.
The defendant-appellant claims that half
of the property as per boundaries shown
in the receipt dated 6.12.1971 was sold
by Rampal Singh, Nathhu Singh and Hari
Singh s/o Bannu Singh, father of the
plaintiffs-respondents to Shiv Nath singh,
father of the defendant no. 2 for a sum of
Rs. 520/-. Thus, according to him, the
receipt dated 06.12.1971 is, in fact, a sale
deed though unregistered, by which
specific
property
was
sold
for
consideration.

8. Before proceeding further, it
would be relevant to take note of certain
provisions of law.

9. Section 53-A of the Transfer of
Property Act, 1882 is quoted as under:

"53-A.
Part
performance-
Where any person contracts to transfer
for
consideration
any
immovable
property by writing signed by him or on
his
behalf
from
which
the
terms
necessary to constitute the transfer can
be ascertained with reasonable certainty,

and the transferee has, in part,
performance of the contract, taken
possession of the property or any part
thereof, or the transferee, being already
in possession, continues in possession in
part performance of the contract and has
done some act in furtherance of the
contract,

and
the
transferee
has
performed or is willing to perform his
part of the contract,

then,
notwithstanding
that
where there is an instrument of transfer,
that the transfer has not been completed
in the manner prescribed therefor by the
law for the time being in force, the
transferor or any person claiming under
him shall be debarred from enforcing
against the transferee and persons
claiming under him any right in respect
of the property of which the transferee
has taken or continued in possession,
other than a right expressly provided by
the terms of the contract :

Provided that nothing in this
section shall affect the rights of a
transferee for consideration who has no
notice of the contract or of the part
performance thereof."

(Emphasis supplied)

10. Section 49 of the Registration
Act is quoted as under:

"49. Effect of non-registration
of documents required to be registered.-
No document required by section 17 [or
314 INDIAN LAW REPORTS ALLAHABAD SERIES
by any provision of the Transfer of
Property Act, 1882 (4 of 1882)], to be
registered shall-

(a)
affect
any
immovable
property comprised therein, or

(b) confer any power to adopt,
or

(c) be received as evidence of
any transaction affecting, such property
or conferring such power,

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 (4 of 1882), to be
registered may be received as evidence of
a contract in a suit for specific
performance under Chapter II of the
Specific Relief Act, 1877 (3 of 1877) or
as evidence of any collateral transaction
not required to be effected by registered
instrument.]

(Emphasis supplied)

11.

State
Amendment
(Uttar
Pradesh) of the Registration Act, 1908 is
also quoted as under:

(i) in the first paragraph, after
the words "or by any provision of the
Transfer of Property Act, 1882", insert
the words "or of any other law for the
time being in force."

(ii) for clause (b), substitute the
following clause, namely

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

(iii) in clause (c), after the
words "such power", insert the words "or
creating such right or relationship";

(iv) in the proviso, omit the
words "as evidence of a contract in a suit
for specific performance under Chapter
II of the Specific Relief Act, 1877, or".

(vide Uttar Pradesh Act 57 of
1976, sec. 34 (w.e.f. 1.1.1977).

(Emphasis supplied)

12. It would be relevant to note that
the words " or by any provision of the
Transfer of Property Act, 1882" were
added by Act 21 of 1929 (Section 10).

13. It would be pertinent to note
that the words, "or as evidence of part
performance of a contract for the
purposes of Section 53-A of the Transfer
of Property Act 1882" were omitted by
Act 48 of 2001 section 6 (w.e.f.
24.09.2001).

14. It is not in dispute that this
receipt is not a registered document.
Undisputedly, the defendant-appellant is
claiming that this is in fact a sale deed
although not registered. It is also not in
dispute that this receipt is for a sum of
Rs. 520/- and is allegedly for a sale of
immovable property worth above Rs.
100/-. In case it is a receipt for
transaction towards sale of immovable
property, the document was required to
be registered under Section 17 of the
Indian Registration Act, 1908.

15. Thus, clearly, reference to
Section 49 of the Registration Act 1908
is of no help to the defendant-appellant.

16. Insofar as Section 53-A of the
Transfer of Property Act, 1882 is
concerned, it clearly provides that where
any person contracts to transfer for
consideration any immovable property by
writing signed by him or on his behalf
from which the terms necessary to
constitute the transfer can be ascertained
with
reasonable
certainty
and
the
8 All. Yogendra Pal Singh Vs. Hari Singh & Ors.
315
transferee has, in part performance of the
contract, taken possession of the property
or any part thereof.

17. It would be appropriate to note
the contents of receipt dated 6.12.1972,
which are quoted as under:

मैं नक आज बर्तारीख 6 नदसोंबर 1972 ई0
क रामपाल नसोंह व ित्थ नसोंह व हरी नसोंह पुत्र बन्न
नसोंह कौम चौहाि पेिा खेर्ती ग्राम गजािा परगिा
अमर हा नजला मुरादाबाद िे बदस्त निविाथ नसोंह पुत्र
जगर्त नसोंह कौम चौहाि पेिा खेर्ती ग्राम गजािा के
हाथ 520 पाोंच सौ बीस नजसके आिे द सौ साठ 260/-
रु0 ह र्ते है िकद रु0 वस ल पाकर यह रसीद नटकट
चस्पा नलख दी नकवत्ता पर काम आवे और सन्द ह
नजसका हट व चौहदी आिी इस प्रकार है प रब का
नहस्सा-रामपाल नसोंह व ित्थ नसोंह व हरर नसोंह-पनश्चम
में नवश्व िाथ नसोंह का नहस्सा है। चौहद्दी-उत्तर जालम
नसोंह का बाग

दनक्षण रास्ता

पन्धिम- गौकहा नसोंह ग्राम समाज

प रब-नसपाही नसोंह

18. A bare glance over the receipt
would clearly reflects that the terms
necessary to constitute the transfer are
not ascertainable. There is not a single
word
that
any
property
is
being
transferred and the receipt is towards the
consideration received for transfer of
certain property. In other words, receipt
could have been given for any purpose
whatsoever, may be for covering a loan
taken by persons who have executed the
receipt. Neither the term sale nor any
term indicating handing over of the
possession have been mentioned in the
aforesaid receipt. It is noticeable that
case of the defendant-appellant is that he
is in possession of the property in
question since 06.12.1971 (i.e. the date of
receipt) when possession was handed
over to him. This receipt is, therefore, on
a plain reading, does not refer to any
transaction or contract to transfer any
immovable property. The word 'sale' is
nowhere mentioned in the receipt and
there is no mention of handing over of
the possession of the property mentioned
in the receipt. Therefore, the provisions
of Section 53-A of the Transfer of
Property Act,1882 are not attracted in the
present case as the necessary ingredients
thereof are clearly missing in this case.

19. Insofar as the possession is
concerned, a categorical case of the
plaintiffs-respondents is that they are in
possession over the property in dispute
through a registered sale deed dated
13.9.1971 executed in favour of their
father. Various documents in the shape of
electricity connection and other receipts
filed before the trial Court by the
defendant-appellant were disbelieved by
the trial Court on the ground that the
defendant-appellant has himself admitted
that he has several properties in the village
and this receipt filed by the defendantappellant are not indicative of the fact that
they are in respect of the property in
dispute. Even otherwise, such receipts,
bills etc. are not conclusive proof of actual
possession. Therefore,
clearly, while
deciding the issue no. 1, whether the
plaintiffs are owner in possession of the
property in question, it was rightly held
that plaintiffs are in possession over the
property
in
dispute.
The
question,
therefore, in respect of the possession of
the defendant over the property in dispute,
has been duly considered by the trial court
while deciding the issue no. 1 by
disbelieving the evidence, documentary as
well as oral given by the defendantappellant and this finding has been rightly
affirmed by the lower appellate court.
316 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Insofar as other questions involved
in the present case is concerned, much
emphasis was given before this Court as to
whether this receipt was necessarily required
to be a registered document or not. This
question has already been decided against the
defendant-appellant by both the courts below.
However, in view of the fact that the alleged
receipt dated 6.12.1971, which was being
claimed by the defendant-appellant to be a
sale deed, nowhere mentions that it is a sale
deed and the property in question is being
transferred for consideration to the father of
the
defendant-appellant.
Therefore,
the
reference to question relating to Section 17 of
the Indian Registration Act, 1908 cannot be
said to be substantial question of law
involved in the present case. From the alleged
receipt, nature of the transaction is not at all
clear and it cannot presume or could not be
proved by any other document that this
transaction was in fact a transaction of sale
for consideration or even the possession of
the property in dispute was handed over to
the father of the defendant-appellant.

21. A Constitutional Bench of 5
Judges of Hon'ble Apex Court in Sir
Chunilal vs. Mehta and sons Ltd vs. Century
Spining and Manufacturing Co. Ltd AIR
1962 SC 1314 has considered the question
'as to what is the substantial question of law'.
Various judgments of High Courts and Full
Bench were considered by the Hon'ble
Constitutional Bench and it was held that if
the question is settled then it would not be a
substantial question of law. Paragraph 6 of
the aforesaid judgment is quoted as under:-

"6. We are in general agreement
with the view taken by the Madras High Court
and we think that while the view taken by. the
Bombay High Court is rather narrow the one
taken by the former High Court of Nagpur is
too wide. The proper test for determining
whether a question of law raised in the case is
substantial would, in our opinion, be whether
it is of general public importance or whether it
directly and substantially affects the rights of
the parties and if so whether it is either an
open question in the sense that it is not finally
settled by this Court or by the Privy Council or
by the Federal Court or is not free from
difficulty or calls for discussion of alternative
views. If the question is settled by the highest
Court or the general principles to be applied
in determining the question are well settled
and there is a mere question of applying those
principles or that the plea raised is palpably
absurd the question would not be a substantial
question of law." (emphasis supplied)

22. Therefore, it is clear that merely
because in the substantial questions of
law so framed in the memo of appeal
involving interpretation of any particular
provision of the law by itself could not be
substantial questions of law.

23. I have already noticed and has
also gone through substantial questions
of law framed in memo of appeal. I find
that no substantial questions of law arise
in the present second appeal and the
other questions that have been framed in
the memo of appeal are related to the
findings of facts and I do not find that the
findings recorded by the courts below are
perverse in nature so as to attract any
substantial question of law.

24. I am of the opinion that no
substantial question of law is involved in
the present second appeal and the case is
covered by the concurrent findings of
fact recorded by the courts below.

25. Appeal is devoid of merit and is
accordingly dismissed at the admission stage itself.
----------
8 All. Indraj Singh Vs. Kashi Ram
317
(2020)08ILR A317
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 567 of 1995

Indraj Singh ...Appellant
Versus
Kashi Ram ...Respondent

Counsel for the Appellant:
Sri H.N. Sharma, Sri Akhtar Ali, Sri Anupam
Kulshreshtha, Sri Manish Mishra, Sri Ram Lal Mishra

Counsel for the Respondent:
Sri Pramod Jain, Sri R.P. Srivastava

(A) Civil Law - Code of Civil Procedure
,1908 - Section 100 CPC - case of an
opportunity lost - Suit for Specific
Performance - Order LXI Rule 11, -
Specific Relief Act - Section 26(1)(b) &
(c) read with sub-Sections (2) and (4) of
Section 26 - Indian Evidence Act -
Section 92 - Limitation Act of 1908 -
Order XLI Rules 23 - Remand of case by
Appellate Court and Rules 23-A -
Remand in other cases - Order XLII Rule
1, read in conjunction with Order XLI
Rules 16 and 31 CPC. - Indian Evidence
Act - Section 92, Section 101 - no law
that makes it incumbent upon the Lower
Appellate Court to decide the point
relating to rectification, in terms of the
order of remand, which the appellant
did not urge . (Para-47)

Suit for Specific Performance of an agreement
to reconvey the suit property and recovery of
possession - defendant is the appellant before
the Lower Appellate Court - unsuccessful in
the first instance before the Lower Appellate
Court - carried a second appeal to this Court -
secured a remand with a direction to decide
the point regarding his plea relating to
rectification of the contract, subject matter of
action - plea was to be decided bearing in
mind the provisions of Section 26 of the
Specific Relief Act and Section 92 of the
Indian Evidence Act. - At the hearing, the
defendant who secured the order of remand
in the earlier second appeal did not address
the Court on the point that the Lower
Appellate Court was ordered to decide -
Rather, he appears to have addressed the
Court on other points, all of which were
decided against him. (Para - 47)

HELD:- It is, therefore, not open to the
defendant to ask this Court to decide those
substantial questions of law, based on a point
that he did not at all canvass at the hearing
of the appeal before the Lower Appellate
Court. Indeed, it is a case of an opportunity
lost. This Court, therefore, refrains from
answering the two substantial questions of
law under reference. (Para - 48)

Second Appeal dismissed. (E-7)

List of Cases cited:-

1. St. of Mah. Vs Ramdas Shrinivas Nayak &
anr., AIR 1982 SC 1249.

2.
Konappa
Mudaliar
Vs
Kusalaru
@
Munuswami Pillai, AIR 1970 MAD 328

3. Nair Service Society Ltd. Vs K. C. Alexander
& ors., AIR 1968 SC 1165

4. Rama Kant Vs Board of Revenue & ors.,
2005 1 AWC 929 All

5. Bal Govind Lohia Vs Narayan Prasad Lohia
& ors, (2009) 17 SCC 349

6. A.P. SRTC Vs S. Jayaram, (2004) 13 SCC 792

7. Thakur Sukhpal Singh Vs Thakur Kalyan
Singh & anr., AIR 1963 SC 146

(Delivered by Hon'ble J.J. Munir, J.)

1. ''You can lead a horse to water
but you can't make it drink'. The facts of
this case bear reaffirming testimony to
the wisdom of this proverb.