JUDGMENT
S.T. Kharche, J.
1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the original defendants have filed this second appeal challenging the judgment and order dated 25-9-1987 passed by the Additional District Judge in Regular Civil Appeal No. 60/1982 whereby the Regular Civil Appeal No. 68/1982 filed by the plaintiff came to be allowed and the decree passed by the trial Court dismissing the claim of the plaintiff for declaratory relief is set aside and it was declared by the appellate Court that the plaintiff is the owner of the suit house and he is in possession of the same in his own right as an owner. The appellate Court also dismissed the Regular Civil Appeal No. 68/1982 filed by the original defendants and the decree passed by the trial Court granting permanent injunction was confirmed.
2. Brief facts are required to be stated as under :
The plaintiff instituted the suit for possession on the basis of title on the contentions that the suit house situated in Bhandewadi (Pardi), Ward No. 11, Nagpur, Sheet No. 493, Chalta No. 71 is owned by him and his name has been recorded in the assessment register of the Nagpur Municipal Corporation as an owner. It is contended that the defendants were original owner of this house and they had agreed to sell the suit house by virtue of the agreement dated 21-8-1954 for consideration and deliver the possession on that date in the part performance of the contract. Subsequently on 4-9-1954 the sale deed was executed in favour of the plaintiff but it could not be registered. Taking undue advantage of the fact that the sale deed could not be registered, the defendants made an application to the Superintendent of Land Records (Town Planning in Survey) for getting the suit house recorded in their names and the officer recorded the names of the defendants as title holder in respect of the suit house. The plaintiff preferred appeal to the higher authority against that order which came to be dismissed on 21-7-1976. It is contended by the plaintiff that he is the owner and had been in continuous and uninterrupted possession of the suit house in his own rights as an owner to the knowledge of the defendants and the latter had acquiescence in the title and therefore, now they are estopped under law from disputing the title. It is contended that the plaintiff has also perfected his title by adverse possession on account of his continuous possession since 21-8-1954 and the defendants are trying to disturb the possession on the pretext that the order has been passed by the Superintendent of Land Records in their favour. The plaintiff, after purchase of the suit house, made some construction and spent the amount of Rs. 8,000/-over the construction by obtaining requisite permission from the Municipal Corporation. The defendants were trying to disturb the possession and therefore, the plaintiff was compelled to file the suit for possession based on title and also for consequential relief of permanent injunction restraining the defendants from interfering or disturbing with the peaceful possession of the plaintiff over the suit house. The defendant No. 1 died during the pendency of the appeal before the appellate Court and his legal representatives were brought on record. The defendant No. 1 contested the suit by filing his written statement. He admitted that the plaintiff preferred the appeal before the Supdt. Of Land Records, City Survey, Nagpur and the same was dismissed. He contended that the enquiry officer from the office of Land Records City Survey had on his own held enquiry about the title to the suit house and after verification of the necessary records, he had recorded findings that the defendant No. 1 was the owner of the suit house. It was contended that the signature of the father of the defendants was obtained by the plaintiff on one document by playing fraud upon the defendants and the sale deed was got executed, which is not binding on the defendants. It was further contended that the plaintiff being the relative, i.e., brother in law, was allowed to occupy the suit house as a licensee. He contended that the sale deed in question was absolutely false, illegal and cannot be enforced in law. He contended that the plaintiffs contention that he became the owner by virtue of adverse possession is misconceived and totally false. He contended that in fact the suit house was purchased by him in Court auction in Civil Suit No. 314/1935. The auction was held on 24-9-1942 and the sale was confirmed in his favour on 30-10-1942 and since then the defendant No. 1 is absolute owner of the suit house.
3. On the aforesaid pleadings, the trial Court framed several issues for consideration. The parties adduced evidence and relied on oral as well as documentary evidence produced on record. The trial Court on consideration of the evidence recorded the finding that the plaintiff did not establish his title to the suit house, that the contract of sale is binding on the defendant No. 1, the trial Court negatived the contentions of the defendants that the plaintiff is occupying the suit house as a licensee and that the plaintiff has become owner by virtue of adverse possession and consequently held that the plaintiff is not entitled to the declaration sought for title. However, the appellate Court, was of the view that since the plaintiff was in possession, he was entitled to the claim permanent injunction and consequently he decreed the suit for permanent injunction restraining the defendants permanently from disturbing the possession and dismissed the suit of the plaintiff so far as the claim for declaration of title is concerned. The plaintiff being aggrieved by the judgment and decree passed by the trial Court preferred appeal which came to be registered as Regular Civil Appeal No. 60/1982 whereas the defendants also filed Regular Civil Appeal No. 68/1982 in the District Court against the same judgment and decree. The learned Additional District Judge on hearing the learned counsel for the parties, dismissed the Regular Civil Appeal No. 68/1982 filed by the defendants and confirmed the judgment and decree passed by the trial Court granting permanent injunction whereas the appellate Court allowed Regular Civil Appeal No. 60/1982 filed by the plaintiff and set aside the judgment and decree passed by the trial Court dismissing the claim of the plaintiff for declaratory relief and instead passed the decree and declared that the plaintiff is the owner of the suit house and is in possession of the same in his own rights as an owner. This judgment and decree passed by the appellate Court is under challenge in this second appeal.
4. Mr. Lambat, the learned counsel for the defendants contended that fraud was practiced and the sale’ deed dated 4-9-1954 was got executed by obtaining the signature of the deceased defendant No. 1 and the sale deed is not enforceable in law, it being unregistered document. He contended that the contents of the sale deed are not proved and cannot be admitted in evidence for collateral purposes. He contended that possession of the suit house was never delivered to the plaintiff at any time and the finding of the appellate Court that the status of the plaintiff in the suit house is that of a licensee is totally incorrect. He contended that no evidence has been adduced by the plaintiff to show that he has perfected his title by virtue of adverse possession. He contended that the officer from the Land Records City Survey held enquiry into the title to the suit house and recorded findings in favour of the defendants. The plaintiff being aggrieved by the order passed by the said officer had preferred appeal before the Superintendent of Land Records, City Survey and the appeal was dismissed. He contended that in such a situation, the plaintiff could not successfully prove his title and that he has become owner by virtue of adverse possession. He contended that the suit house is self acquired property of deceased defendant No. 1 and no one had any authority to challenge it in any way and it is the defendant No. 1 who had paid all municipal taxes as owner of the house. Therefore, the suit is liable to be dismissed.
5. Mr. Paunikar, the learned counsel for the plaintiff contended that there is concurrent findings of both the Courts below about the possession. He contended that the agreement of sale was executed by the defendant No. 1 on 21-8-1954 in favour of the plaintiff and though the agreement of sale was not executed on a duly stamped paper, it did not follow that defendant No. 1 did not agree to sell the suit house. He contended that the defendant No. 1 executed the sale deed on 4-9-1954 which could not be registered. He contended that the sale deed though not registered, can be admitted in the evidence for co-lateral purposes. He contended that the possession of the suit house was delivered on the date of execution of the sale deed i.e. on 4-9-1954 and since then the possession of the plaintiff is continuous, uninterrupted, peaceful and without any obstruction by virtue of the contents of the sale deed and therefore, the plaintiff has perfected the title by adverse possession. He pointed out that Shivnarayan admitted in his cross-examination that the plaintiff is residing in the suit house since the year 1954 and that he has paid the municipal taxes. He contended that the appellate Court was perfectly justified in granting decree for declaration of title and also consequential relief of permanent injunction restraining the defendant from interfering or obstructing the peaceful use and enjoyment of the suit house. In support of these submissions he relied on the decision of Supreme Court in the case of Bondar Singh v. Nihal Singh, .
6. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the deceased defendant No. 1 is original owner of the suit house. The perusal of the agreement of sale dated 31-8-1954 would reveal that the defendant had agreed to self the suit house for consideration of Rs. 200/- to the plaintiff as he was in need of the said house and the plaintiff was his relative and therefore, the suit house was given in his possession for residence as he had no any other residential accommodation at Pardi Bhandewadi. Stipulation in agreement of sale would further reveal that the sale deed was agreed to be executed within 15 days and that the possession has been delivered on that date. This agreement of sale was reduced in writing on a plain paper and therefore, it was got impounded in the trial Court and consequently the said agreement of sale has been exhibited by the trial Court through the evidence of plaintiff Sukhdeo (P.W.-1). This agreement of sale was not duly stamped and hence the trial Court put endorsement on it that it was impounded by the order dated 20-11-1981 and as such rightly made admissible in evidence.
7. Now coming to the sale deed, it would reveal that the sale deed has been executed on 4-9-1954 in respect of the suit house on receiving the consideration of Rs. 200/- by deceased defendant No. 1 and the sale deed has been exhibited by the trial Court though it is unregistered document written on stamp paper. Recitals of the aforesaid two documents would clearly reveal that the possession of the suit house was delivered to the plaintiff on 21-8-1954 and the defendant Shivnarayan, son of deceased defendant No. 1 admitted in his cross examination that the plaintiff Sukhdeo is residing in the suit house since 1954 and he has also looked after the repairs of the house. There is further admission by the defendant that the plaintiff was paying municipal taxes since the year 1954. He unequivocally admitted that since the year 1954 the suit house is in exclusive possession of the plaintiff and his family members.
8. It is settled law that the admission of a witness can be considered as a substantive evidence and therefore, in the present case, it is crystal clear that the plaintiff and his family members are residing in the suit house since the date of execution of the sale deed. Though the sale deed was not registered document, it could be made admissible in evidence for co-lateral purposes.
9. In the case of Bondar Singh and Ors. v. Nihal Singh and Ors., the Hon’ble Supreme Court while dealing with Article 65 of the Limitation Act (36 of 1963) considered the facts and circumstances of that case and observed in para No. 6 that; “It appears that having failed to obtain possession of the suit land through lawful means, the defendants tried to dispossess the plaintiffs forcibly which led to the present suit being filed on 15-4-1972. The claim of the defendants regarding taking possession of suit land from plaintiffs in 1957-58 having been found to be false, it follows that the defendants never came into possession of the suit land. Another significant conclusion which follows from these facts is that the defendants started asserting their title to the suit land since at least 1956 when they issued the notice Exhibit P.6 while the plaintiffs have been denying their title to the suit land and were setting up their own title to the same. This lends support to the plea of adverse possession set up by the plaintiffs. It will be seen from this clear and clinching evidence on record that the plaintiffs were in continuous and uninterrupted possession of the suit land since 1931 and they had been setting up a hostile title thereto as against the defendants. The defendants were asserting their title to the land since 1956. They had however failed to get possession of the suit land. The plea of adverse possession raised by the plaintiff is thus clearly established.”
10. The Supreme Court also held that, the contents of the unregistered sale deed can be looked into for co-lateral purposes such as to see the nature of possession of the party over the suit property. These observations would be clearly applicable to the facts and circumstances of the present case. Here also the sale deed though executed on 4-9-1954, it was not registered, but there is clear stipulation in the agreement of sale that the possession was delivered and the defendant No. 1, son of Sukhdeo clearly admitted in his cross examination that plaintiffs and his family members are residing in the suit premises since the year 1954. Therefore, it is obvious that the appellate Court was perfectly justified in coming to the conclusion that the plaintiff has perfected his title to the suit house by virtue of adverse possession and there is no reason for this Court to take a different view of the matter.
11. The learned counsel for the defendant contended that the title to the suit house was determined by the officer from the office of the City Survey against which the plaintiff had filed appeal before the higher authority and it was dismissed and therefore, the defendant No. 1 is the owner of the house and the title did not pass on to the plaintiff by virtue of the unregistered sale deed dated 4-9-1954. It is settled law that whenever there is dispute of title to the property, the same can be adjudicated only by the Civil Court and not by any executive assuming the jurisdiction of the Civil Court. In the present case, the officer from the City Survey office had no jurisdiction to enquire into the title of the parties and therefore, the order declaring the title of the defendant to the suit house by the officer of the City Survey is clearly without jurisdiction and in such a situation it is apparent that the contentions of the learned counsel for the defendant No. 1 that the title of the suit house has been decided, is totally misconceived and is liable to be rejected.
12. The plaintiff was stated to be the tenant/licensee in the suit premises but no evidence has been adduced in proof of these contentions and by no stretch of imagination it can be said that the plaintiff was either inducted as tenant in the suit premises or that his status after the execution of the sale deed on 4-9-1954 was that of a licensee. The plaintiff has perfected his title by virtue of the adverse possession as is observed above, and therefore, this Court is of the considered opinion that there is no merit in this appeal and no case has been made out for interference into the impugned judgment passed by the appellate Court. There is no error or illegality in the same and therefore, the appeal is dismissed with cost throughout.
