Dismissed

Ganpat Lal v. Lrs of Amba Shankar and Anr.

Rajasthan HC26 Apr 2018EXSA/2/2018

Case brief

AI extract

What is this about?

This second appeal challenged the dismissal of an objection filed by a purchaser claiming title via an unregistered sale deed. The High Court affirmed the lower courts' rejection, holding that an unregistered transfer of immovable property is a nullity and the objection was unsustainable on merit.

What did the court decide?

The appeal under Section 100 CPC was dismissed, affirming the order rejecting the objector's claim based on an unregistered sale deed.

Ganpat Lal Vs Lrs of Amba Shankar and Anr. — Execution and Attachment | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Execution Second Appeal No. 2 / 2018

¶3

Ganpat Lal S/o Shri Bhawani Shankar, B/c Shrimali, Resident of Siwana, Tehsil Siwana, District Barmer (Raj.).

¶4

----Appellant

¶5

Versus

¶6

LRs of Amba Shankar S/o Mithalal Ji, By Caste Shrimali, Since deceased through legal representatives-

¶7

1/1. Smt. Saraswati Devi Widow of Late Shri Amba Shankar Ji, By Caste Shrimali, Resident of Siwana, District Barmer (Raj.). (Delete 10-01-2018)

¶8

1/2. Smt. Sharda W/o Shri Vidhyadhar D/o Late Shri Amba Shankar, By Caste Shrimali, Resident of Near Power House, Chhagan Bhai Ki Jaali Ke Lama Mandir Ke Pass, Sabarmati, Ahmedabad (Gujarat)

¶9

1/3. Smt. Madhubala W/o Shri Babulal D/o Late Shri Amba Shankar, By Caste Shrimali, Resident of 6 Ayodhya Nagar Society, Niranya Nagar, Ahmedabad (Gujarat)

¶10

1/4. Smt. Rama W/o Shri Prakash Chand, D/o Late Shri Amba Shankar, By Caste Shrimali, Resident of Bhavrani, Near Secondary School, District Jalore.

¶11

1/5. Manohar Lal S/o Late Shri Amba Shankar, By Caste Shrimali, Resident of Siwana, District Barmer (Raj.). (Delete 10-01-2018)

¶12

Tara Chand S/o Shri Manak Chand, By Caste Oswal Raka, Resident of Siwana, District Barmer.

----Respondents

(2 of 6)

[EXSA-2/2018]

For Appellant(s) : Mr. V.L. Thanvi

¶17

For Respondent(s) : Mr. Jitendra Chopra

¶18

JUSTICE DINESH MEHTA

¶19

Judgment

¶20

26/04/2018

¶21

The present appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant, laying challenge to an order dated 20.03.2018 passed by learned District Judge, Balotra (hereinafter referred to as the ‘Appellate Court’) whereby order dated 18.09.2017 passed by the learned Judicial Magistrate (hereinafter referred to as the ‘Trial Court’) has been affirmed.

¶22

The facts in brief relevant for the present appeal are that the appellant – Objector - Ganpat Lal filed objection under Order XXI Rule 97 of the Code of Civil Procedure in Execution Case No.1/2016 filed for execution of the judgment and decree dated 08.10.1990 passed in the matter of Tara Chand Vs. Amba Shankar. The present appellant – objector obstructed of the decree interalia contending that he had purchased the disputed shop for a sum of Rs.6,000/- on 08.02.1965 and was in possession of the shop.

¶23

Learned Executing Court rejected appellant’s objection interalia observing that the objector’s case that he had purchased the contentious shop on 08.02.1965 is based upon a document, which was unregistered and an immovable property cannot be treated to have been legally transferred by an unregistered document. The claim of title of the appellant about the ownership

¶24

(3 of 6)

¶25

[EXSA-2/2018]

¶26

of the subject shop was thus rejected. While rejecting the objection, the Executing court further found that the objector has failed to produce any other documentary or other evidence to substantiate the possession and support his objection.

¶27

Appeal filed by the appellant against the order dated 18.09.2017 came to be dismissed by the Appellate court vide its order dated 20.03.2018 reiterating that an unregistered sale deed dated 08.02.1965 cannot be given any credence and the appellant’s purported right emanating from such sale deed cannot be considered.

¶28

The Appellate Court further observed that the appellant’s version that having purchased the property on 08.02.1965, he was in possession of the shop in question and that the decree under consideration, had been passed behind his back without his knowledge and impleading him as a party, is unbelievable.

¶29

Mr. Thanvi, learned counsel for the appellant impeaching the orders dated 18.09.2017 and 20.03.2018, contended that both the Courts have seriously erred in rejecting appellant’s objection. He submitted that it was incumbent upon the Courts below to have framed the issue and given the appellant a liberty to lead evidence in support of his objection.

¶30

In support of his arguments, Mr. Thanvi relied upon judgment of Hon’ble Supreme court in case of Tanzeem-e-sufia Vs. Bibi Haliman & Ors., reported in Civil Times (SC) 2003 (1) page 115, and drawn my attention toward para No.14 of the judgment aforesaid, which reads thus:-

¶31

“In support of the contention raised on behalf of

¶32

(4 of 6)

¶33

[EXSA-2/2018]

¶34

the appellant Shri Sanyal placed reliance upon a decision of this Court, Shreenath & Anr. Vs. Rajesh & Ors., 1998 (4) SCC 543. It has been held in this case that the term “any person” includes when a person not bound by the decree who shall also be entitled to file objections. It has been so provided to widen the scope of Order 21 Rule 97, so that all such matters may be decided at the execution stage itself to curtail the lengthy procedure of an independent suit claiming a right not to be dispossessed from the property covered by a decree of a Court. Another decision relied upon is Brahamdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr., 1997 (3) SCC 694. It has been held that the Executing Court must first adjudicate upon the objection of the objector on merits under Rule 97(2) of Order 21 CPC. It is also observed that it should not be insisted that possession be handed over first and an application under Order 21 Rule 99 be moved later on complaining above dispossession.”

¶35

Mr. Thanvi has placed before this Court, for perusal, the judgments referred in the aforesaid paragraph being (1998) 4 SCC 543 and (1997) 3 SCC 694 and contended that objection filed by the appellant ought not to have been rejected outrightly.

¶36

Having heard learned counsel for the appellant and upon perusal of the orders impugned and the judgment cited at Bar, this Court does not find any substance in the arguments advanced by Mr. Thanvi and in the case of the appellant.

¶37

It is undisputed that the appellant has claimed title over the shop in question, on the basis of the sale deed dated 08.02.1965, which is not a registered document.

¶38

Needless to observe that the transfer of any immovable

¶39

(5 of 6)

¶40

[EXSA-2/2018]

¶41

property sans registration is a nullity and cannot be given any credence in the eye of law.

¶42

In the present factual backdrop, the appellant’s claim based upon such unregistered document, is baseless and untenable.

¶43

The appellant’s argument that the Trial Court ought to have framed issues and given him liberty to lead evidence is also unsustainable. It is not necessary for the Executing Court to frame issue and give opportunity to lead evidence in each and every case. It is a discretion of the Court to decide as to whether leading of evidence and framing point of issue in a particular case is warranted or not. The Court can take such a call looking at the stand and prima facie case of the objector.

¶44

In the present case, as the stand of the appellant was prima facie untenable, the Executing Court has committed no error of law in not framing points of determination and refusing the parties a chance to lead evidence. The decision impugned is in sync with the judgment of this Court in S.B. Civil Writ Petition No.10272/2016 (Smt. Shanti Devi & Ors. Vs. Chimanaram & Ors.) decided on 08.08.2017.

¶45

As far as the judgment cited by Mr. Thanvi particularly in case of Tanzeem-e-sufia Vs. Bibi Haliman & Ors., reported in Civil Times (SC) 2003 (1) page 115 is concerned, the same has hardly any implication or bearing to the facts of the present case. The judgment cited by Mr. Thanvi is an enunciation by Hon’ble the Supreme Court that the objector’s view point must be taken into account and considered, while holding that any person includes a person having possession of the property.

¶46

(6 of 6)

¶47

[EXSA-2/2018]

¶48

A perusal of the orders impugned reveals that the Courts below have not rejected the objection of the appellant holding it to be not maintainable; rather his objection has been considered on merit and have been rejected finding them to be untenable.

¶49

Both the Courts have considered the case of the appellant on its merit, while observing that no right, property and title have vested in the appellant by virtue of the unregistered document.

¶50

The Courts below have rightly rejected the objection of the appellant, as they were ex-facie sham; superficial, rather worthless.

¶51

This Court does not find any merit in appellant’s appeal. No question of law much less substantial question of law is involved in the present appeal.

¶52

The appeal is thus dismissed.

¶53

(DINESH MEHTA), J.

¶54

Anurag Shukla/40

Ganpat Lal v. Lrs of Amba Shankar and Anr.

Case brief

What is this about?

What did the court decide?

Ganpat Lal v. Lrs of Amba Shankar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mainuddin Vs Gordhan and Ors.

Lrs of Smt. Kamla Devi Vs Lrs of Smt. Laxmi Devi and Ors.

Naresh Kumar Vs Rsrtc and Anr.

Babu Khan Vs Jamila and Ors.

State of Raj. and Anr. Vs M/S Hightech Construction Co.

Ratan Kumar Vs Lrs of Suraj Narayan