Dismissed

Prem Chand and Ors. v. Smt Hem Kunwar and Anr.

Rajasthan HC8 Jan 2018CSA/468/2017

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal. It held that a registered sale deed for property exceeding Rs. 100/- is valid upon execution and consideration without actual physical delivery. The court found no substantial question of law as the validity of the sale deed was not struck below.

What did the court decide?

The second appeal was dismissed with no substantial question of law made out.

Prem Chand and Ors. Vs Smt Hem Kunwar and Anr. — Property and Title | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 468 / 2017

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Prem Chand S/o Late Shri Jagannathji,

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Daya Krishna S/o Late Shri Jagannathji,

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Susheel Kumar S/o Late Shri Jagannathji, , Aged About 60 Years,

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Rajendra Kumar S/o Late Shri Jagannathji,

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All by Caste Brahmin, R/o Near Jankinath Ji Temple, Nayapura, Kota Rajasthan

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----Appellants

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Versus

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Smt. Hem Kunwar W/o Shri Radhakrishna,

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Radhakishan S/o Ramratan,

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All by Caste Kumawat, R/o Ummaid Park, Nayapura, Kota, Rajasthan

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----Respondents

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For Appellant(s) : Mr. JP. Goyal, Sr. Counsel with Mr. Abhi Goyal For Respondent(s) : Mr. Rinesh Gupta

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HON'BLE MR. JUSTICE ALOK SHARMA

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Judgment

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08/01/2018

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Heard the counsel for the defendants-appellants

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(hereafter ‘the defendants’) as also the plaintiffs-respondents

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(hereafter ‘the plaintiffs’) and perused the impugned judgment

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dated 16.5.2017 passed by Addl. District Judge No.4, Kota in Civl

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Appeal No. 22/2011 affirming the judgment and decree dated

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5.3.2011 passed by Civil Judge (Jr. Division) North, Kota in Civil

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(2 of 4)

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[CSA-468/2017]

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Suit No. 455/1992 whereby the plaintiffs‘ suit for possession and mesne profit was decreed.

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Mr. J.P. Goyal appearing for the defendants submitted

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that the judgments passed by the courts below are vitiated in law, wholly perverse and liable to be set-aside. Mr. J.P. Goyal submitted that the plaintiffs’ ownership of the suit property on the basis of registered sale deed dated 3.3.1981 purportedly in favour of the plaintiffs was no event as it was in cross-hairs of Section 54 of the Transfer of Property Act accompanied as it was not by the plaintiffs’ being put in actual physical possession of the suit property. It was submitted that the plaintiffs’ therefore had no legal right over the suit property and hence the suit for possession and mesne profits at their instance was not itself maintainable.

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Considered.

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For one, a perusal of the impugned judgment indicates

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that no issue as to the legality and validity of the registered sale deed dated 3.3.1981 executed by the erstwhile owner in favour of plaintiffs’ was struck before the trial court and cannot be allowed to be agitated in this second appeal. Aside of the aforesaid, I find no force in the contention of Mr. JP Goyal that a registered sale deed in respect of immovable property of over Rs. 100/- remains

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(3 of 4)

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[CSA-468/2017]

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incomplete and invalid without actual physical delivery thereof to the vendee by the vendor. Reliance by Mr. JP Goyal on Section 54 of the Transfer of Property Act with reference to second part thereof is misdirected and of no avail. Actual delivery of property is essential to an oral sale recognized under Section 54 of the Transfer of Property Act in respect of a immovable property less than Rs. 100/- in value, but there can be constructive delivery in a sale of immovable property over Rs. 100/- by a registered sale deed.

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The Apex Court in the case of Hamda Ammal Versus Avadiappa Pathar and others (1991) 1 SCC 715 has held that with the execution of a registered sale deed with consideration all the ingredients of a valid sale under Section 54 of the Transfer of Property Act are fulfilled.

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The trial court as also the appellate court have come to a finding that the plaintiffs’ were the owners of the suit property by virtue of the registered sale deed dated 3.3.1981 for valuable consideration and even though the case set up by them that the defendants’ license had been revoked was not made out, held that they were in law and equity entitled to a decree of possession of the suit property for reasons analogous to those obtaining in the

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(4 of 4)

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[CSA-468/2017]

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facts of the case reported in AIR 1986 (Raj.) page 187 – Smt. Pushpa Sharma Versus Gopal Lal Rawat, where in a suit for eviction, the plaintiff owner despite not establishing landlord tenant relationship was held entitled to possession as the defendant had no legally recognized and established right to retain possession. Such a situation also has been concurrently found for the plaintiffs by the courts below holding that they were the owners of the suit property and the defendants had no right to retain possession thereof.

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In the circumstances, no substantial question of law, as sought to be agitated by the defendants within the scope of their

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defence and the issues before the trial court as also the first appellate court is made out in this second appeal.

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There is no force in the appeal. Dismissed.

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Prem Chand and Ors. v. Smt Hem Kunwar and Anr.

Case brief

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Prem Chand and Ors. v. Smt Hem Kunwar and Anr.

Case brief

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