TMI Blog2002 (8) TMI 892X X X X Extracts X X X X X X X X Extracts X X X X ..... to execute 'an agreement to sale' of his house situated at Brahman Vaas at Village Dethan. On 29th December, 1962,. a document was executed wherein it is mentioned that the house of the plaintiff, having tin sheets along with Vada is agreed to be sold for a sum of Rs. 1,200.00; and, that Rs. 900.00 is paid as Bana amount and when the remaining amount is paid, the plaintiff will execute a sale deed. It is also mentioned that if the plaintiff repays the amount before execution of the sale deed, this document will not be used by the defendant; the possession of the house was given to the defendant in lieu of interest of Rs. 900.00; and, as no Pakka sale deed was executed, the defendant was served with a notice to act as per agreement dated 29-12-1962. The said notice was replied by the defendant refusing to hand over the possession of the suit-house to the plaintiff, hence, he filed the suit. 3. The controversy involved in the matter is centering around the relief sought for in the plaint. The plaint is produced at Exh. 1, wherein prayer clause, paragraph 7, reads as under : (i) By virtue of the agreement to sale, dated 29-12-1962, on payment of Rs. 900.00, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, submitted that this Second Appeal involves a pure question of law. He submitted that the trial Court had rightly not relied upon the document in question produced at Mark 19/1, as the same is not registered. The learned trial Judge relied upon the document to come to the conclusion that the amount of Rs. 900.00 was paid by the defendant to the plaintiff and, hence, partly allowed the suit of the plaintiff and directed the defendant to hand over the possession of the suit-house to the plaintiff on receipt of Rs. 900.00. 6. The defendant-appellant herein preferred Civil Appeal No. 40 of 1977 before the District Court, Baroda, which came to be dismissed. While dismissing the appeal, the learned first appellate Judge upheld the observations of the learned trial Judge to the effect that the document was a simple agreement and was not a document of mortgage by conditional sale . The learned first appellate Judge observed that, I accept the contention of the learned Advocate for the appellant to hold that the document. Exh. 19/1, dated 29-12-1962 purports to be an agreement to sale of the suit-house and that being so, the document did not require any registration an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sory registration of the document in question. He submitted that the Division Bench of this Court in the matter of Kaushik Rajendra Thakore v. Allied Land Corporation, reported at (1987) 1 Guj LH (UJ) 22, has held as afore- said. The observations of the Division Bench in this regard are as under : The Proviso to Section 49 of the Registration Act makes it abundantly clear that the suit of the plaintiff would not fail on the ground of compulsory registration introduced by amendment to Section 17 by Gujarat Act 7 of 1982. This contention was not originally raised in the trial proceedings, but we permitted the learned advocate for the appellant to argue on this contention, as it is purely a question of law. We reject the same contention, however, by relying on the proviso to Section 49 of the Registration Act, 1908. On scrutiny of the facts of the case before the Division Bench, a suit was filed for specific performance and the document, which was relied upon and of which specific performance was sought, was not registered one. Therefore, the Division Bench on reading the proviso to Section 49 held that the suit of the plaintiff will not fall on the ground of 'compulsory r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 of 1982, relying upon the aforesaid judgment of the Division Bench in the case of Kaushik Rajendra Thakore (1987 (1) Guj LH 22) (supra), held that the suit of the plaintiff, which is filed for specific performance, will not be effected by the fact of non-registration of the documents in question. As discussed hereinabove. as the Division Bench judgment does not help the respondent-original plaintiffs, this judgment also cannot come to the rescue of the respondents. 12. The learned advocate for the respondents also relied upon a judgment of the Honourable Apex Court in the matter between Kolathoor Variath v. Pairaprakottoth Cheriya Kumhahammad Haji, reported at AIR1974SC689 , to contend that in the event of an oral mortgage with possession, the remedy of the mortgagor is to recover the possession on the strength of his title. The proposition of law laid down by the Honourable Apex Court is that if the mortgagor fails to get relief of possession on the basis of his alleged oral mortgage, he can fall back on his title to recover the possession. Paragraph 3 of the judgment of the Honourable Apex Court is relevant, which reads as under : 3. Where a plaintiff cannot regain po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendant is in possession of the suit house by virtue of a document dated 29-12-1962, and relying on the averments of that document, the plaintiff prayed for the decree for possession of the suit house. 14. In view of the aforesaid discussion, the document in question cannot be looked into, as the suit filed by the present plaintiff does not fall in any of the three exceptions culled out in proviso to Section 49. In the result, the suit of the plaintiff is failed. However, it is made clear that failure of plaintiff in this suit does not mean that the plaintiff is rendered remediless. Remedy available under the relevant provisions of law can always be resorted to by the plaintiff for recovering the possession of the suit house, if it is so permissible. The question is as to whether the plaintiff can succeed in the present suit, which is based solely on a document, which is not registered and which is made compulsorily registrable under the Registration (Gujarat Amendment) Act, 1982. The answer is 'No'. 15. In the result, the Second Appeal is allowed. The judgment and decree dated 31st March, 1978 passed in Civil Appeal No. 40 of 1977 by the learned 2nd Extra Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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