Gujarat High Court
Vasim Salauddin Toorbally Through Poa … vs Abdulrehman Gulammohammed Sheikh In … on 17 June, 2025
NEUTRAL CITATION
C/AO/47/2024 ORDER DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 47 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 47 of 2024
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VASIM SALAUDDIN TOORBALLY THROUGH POA MANISH HARIHAR
PANDYA & ANR.
Versus
ABDULREHMAN GULAMMOHAMMED SHEIKH IN PERSONAL CAPACITY
AS WELL AS POA OF JAMEEL AZEEM PALEJVALA & ORS.
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Appearance:
MR JAMSHED KAVINA(11236) for the Appellant(s) No. 1,2
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2
MR NK MAJMUDAR(430) for the Respondent(s) No. 3,4
NOTICE SERVED for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 17/06/2025
ORAL ORDER
1. Heard learned Advocate Mr. S. P. Majmudar with learned
Advocate Mr. Jamshed Kavina for the appellants and learned
Advocate Mr. N. K. Majmudar for the respondent Nos.3 and 4.
Though served, none appears for rest of the respondents. With the
consent of learned Advocates for respective parties, the appeal is
taken up for hearing.
2. The present appeal is filed under Order XLIII, Rule 1(u) of
Civil Procedure Code (hereinafter referred to as “C.P.C.”),
challenging the judgment and decree dated 29 th February, 2024
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passed by 12th Additional District Judge, Vadodara in Regular Civil
Appeal No.261 of 2023, whereby Appellate Court has quashed and
set aside judgment and decree passed by the Trial Court and
remanded the matter back to the Trial Court to re-decide suit filed
by appellants.
3. As far as possible, the parties will be referred to as per their
original position before the Trial Court.
4. The short facts of the case:
4.1. The appellants herein are original plaintiffs, whereas
respondents herein are original defendants. The plaintiffs
had instituted Special Civil Suit No.243 of 2021 against
defendants, seeking declaration and permanent injunction
and so also recovery of suit property owned by them. The
defendant No.1 had appeared and filed his written statement,
but rest of the defendants have chosen not to appear and
contested the suit. After framing of the issues and hearing
the parties and appreciating the evidence on record, the Trial
Court has decreed the suit whereby directed defendants to
hand over the possession of the suit property to plaintiffs.
4.2. The defendant Nos.3 and 4, having aggrieved by such
judgment and decree, filed Regular Civil Appeal No.261 of
2023. After hearing the parties, the Appellate Court vide its
impugned judgment and decree, remanded the matter back
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to the Trial Court as according to Appellate Court one
opportunity of hearing to be given to defendant Nos. 3 and 4
to defend the suit.
4.3. Feeling aggrieved and dissatisfied with the impugned
judgment and decree whereby matter was remanded back to
the Trial Court, original plaintiffs have preferred the present
appeal.
5. SUBMISSION OF THE APPELLANTS/PLAINTIFFS
5.1. Learned Advocate Mr. S. P. Majmudar would submit that the
impugned judgment and decree in the present appeal
patently bad in law, inasmuch as, without appreciating scope
and ambit of power of remand envisaged under Order 41,
Rule 23-A of CPC, the Appellate Court had remanded the
matter back to the Trial Court.
5.2. Learned Advocate Mr. Majmudar would further submit that it
is remained undisputed before the Appellate Court and in
fact recorded that defendant Nos.3 and 4 were served with
the notice/summons of the suit, but chosen not to appear. So,
no indulgence could have been given by the Appellate Court
which was in fact granted in favour of defendant Nos.3 and 4.
5.3. Learned Advocate Mr. Majmudar would further submit that
though no sufficient cause have been made out by defendant
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Nos.3 and 4 for not appearing and contesting the suit, in a
cavalier fashion, the Appellate Court has remanded the
matter back to the Trial Court, dehors the settled principle of
law.
5.4. Learned Advocate Mr. Majmudar would further submit that
defendant Nos.3 and 4 had an ample opportunity to bring
evidence on record and could have contested the suit but
despite opportunities available to defendant Nos.3 and 4,
neither contested the suit nor brought any evidence in
support of their defence before the Appellate Court and in
that factual situation, this Court may interfere with the
judgment and decree passed by the Appellate Court and
restore back judgment and decree passed by the Trial Court.
5.5. Learned Advocate Mr. Majmudar would further submit that it
remained undisputed even reading memo of appeal of
defendant Nos.3 and 4 that they have not purchased the suit
property from defendant No.2 by way of registered sale deed
and in fact, there was no execution of registered sale deed by
plaintiffs in favour of any of the defendants. Thus, title of suit
properties always remained with plaintiffs. So, there is no
error committed by Trial Court while decree the suit in
favour of plaintiffs
6. To buttress his arguments, he would rely upon the decision as
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per their submission filed, which are as under:
(i) Shivakumar V/s. Sharanabasappa reported in 2021 (11) SCC 277.
(ii) Jaishri and anothher V/s. Maruthi and others reported in 1995 SCC
OnLine Kar 235.
(iii) Vinod Infra Developers Ltd. V/s. Mahaveer Lunia and ors., dated
23/05/2025 passed by Hon’ble Apex Court in Civil Appeal No.7109 of
2025.
7. Making the above submissions, learned Advocate Mr.
Majmudar for the appellants-plaintiffs would request this Court to
allow the present appeal.
8. SUBMISSION OF RESPONDENT NOS.3 AND 4
(ORIGINAL DEFENDANT NOS.3 AND 4)
8.1. Learned Advocate Mr. N. K. Majmudar would submit that as
such there is no error much less any gross error committed
by Appellate Court while quashing and setting aside the
judgment and decree passed by the Trial Court and as such
one reasonable opportunity is given in favour of the
defendant Nos.3 and 4 whereby matter was remanded back
to the Trial Court which may not be interfered with by this
Court while exercising its power under Order XLIII.
8.2. Learned Advocate Mr. Majmudar would further submit that
defendant Nos.3 and 4 have been misled and misguided by
defendant No.2 who assured them to defend the suit on their
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behalf but in fact defendants No.2 did not appear and
contested the suit thereby, defendant Nos.3 and 4, in this
fact situation put into difficult situation and in fact, be fooled
by defendant No.2.
8.3. Learned Advocate Mr. Majmudar would further submit that
when Appellate Court exercised its discreation by remanding
the matter back to the Trial Court, there is no perversity on
the part of the Appellate Court and no interference is called
for by this Court.
8.4. Learned Advocate Mr. Majmudar would further submit that
after paying full sale consideration and having obtained legal
possession from defendant No.2 by entering into sale
agreement, defendant Nos.3 and 4 become owner of suit
property and as such there is illegality committed by the Trial
Court while decree the suit in favour of plaintiffs.
8.5. Learned Advocate Mr. Majmudar would further submit that
judgment of the Hon’ble Supreme Court in the case of
Shivakumar (supra) would be in fact helpful to the case of
defendant Nos.3 and 4 and as such, the order of remand is
passed in the interest of justice, which may not be interfered
by this Court.
9. Making the above submissions, learned Advocate Mr.
Majmudar for the respondents would request this Court to dismiss
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the present appeal. He would request this Court that in a case
where, this Court allow this appeal then please order refund of
amount of cost of Rs. 20,000/ paid by defendant No.3 & 4 to
plaintiffs.
10. No other and further submissions are made.
11. POINT FOR DETERMINATION
11.1.Whether in the facts and circumstances of the case, is there
any serious error of law committed by Appellate Court while
remanding matter back to Trial Court or not?
ANALYSIS
12. The facts which are enumerated hereinabove are not in
dispute. The plaintiffs having titled over the suit property filed suit
for declaration, injunction and seeking possession of the suit
property from the defendants. As suit was not contested by
defendant No.2 to 4, it proceeded ex parte against them and
defendant No.1 though filed written statement but later on, having
disappear and he did not contest the suit or brought any oral or
documentary evidence to dispute the fact narrated in the suit.
13. The Trial Court, after appreciating the evidence on record,
decided the suit in favour of the plaintiffs, thereby, decreed the suit
as prayed for. As per decree, defendants were directed to hand
over the possession of suit property in favour of the plaintiffs. The
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defendant Nos.3 and 4 only have chosen to file regular appeal
challenging the judgment and decree passed by the Trial Court.
The grounds, which are set out in appeal would not have any
whisper, that defendant Nos.3 and 4 have purchased the suit
properties from defendant No.2 by way of registered sale deed. The
defendant No.2 alleged to have a power of attorney of plaintiffs
having executed the sale agreement in favour of defendant Nos.3
and 4, have inducted defendant Nos.3 and 4 in suit properties and
might have profited sale consideration from them. But, fact
remained that defendant Nos.3 and 4 have not brought on record
at least before Appellate Court by way of an additional evidence
that they have paid sale consideration to defendant No.2 as a
power of attorney holder of plaintiffs and insisted for execution of
registered sale deed in their favour.
14. Further, it has not come on record that, at any given point of
time, defendant Nos.3 and 4 have called upon plaintiffs to execute
sale deed in their favour, having paid sale consideration in favour
of their attorney. No suit for specific performance has been filed by
defendant Nos.3 and 4 against plaintiffs and/or defendant No.2.
15. All these factors would suggest that defendant Nos.3 and 4
might have entered into a sale agreement in relation to suit
properties but it is settled legal position of law that such sale
agreement has no evidentiary value in eye of law, inasmuch as by
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way of such agreement, no right, title and interest would transfer
in favour of defendant Nos. 3 and 4 being unregistered one. [See –
Suraj Lamp and Industries Pvt. Ltd. V/s. State of Haryana
reported in (2012) 1 SCC 656].
16. When the defendant Nos.3 and 4 is not having right, title and
interest in the suit property in as much as they are not become title
holder of suit properties, could not prevent plaintiffs to get back
possession of the suit properties. As such, there is no explanation
coming forth from defendant Nos.3 and 4 by not appearing before
the Trial Court but blamed only defendant No.2 who according to
defendant Nos.3 and 4 assured them to defend the suit. The
explanation coming forth from the side of defendant Nos.3 and 4 is
nothing but an excuse of not appearing and defending the suit on
their own.
17. Without appreciating all these factors into account and in
very cavalier manner, the Appellate Court has interfered with the
judgment and decree passed by the Trial Court by allowing
defendant Nos.3 and 4 to defend the suit. Unless the case made out
by appellants-defendant Nos.3 and 4 that they were prevented by
any sufficient reason and made out any strong prima facie case in
their favour, whereby on satisfying such facts, if the Appellate
Court exercised its power, in a given set of facts and
circumstances, it would have remanded the matter back to the
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Trial Court by affording an opportunity of hearing to appellants
concerned but not otherwise in a routine manner remanded matter
as done in present case.
18. In any case, when it has come on record that despite valid
service of notice upon defendant Nos.3 and 4 and as such, they
were not prevented by any sufficient cause or reason not to contest
the suit in accordance with law, the indulgence shown by Appellate
Court is nothing but an erroneous approach on the part of the
Appellate Court which requires interference by this Court while
exercising its limited power under Order XLIII, Rule 1 of C.P.C.
19. The scope of remand of matter to the Trial Court as the case
may be, is now well settled. In a case of Shivakumar (supra), the
Hon’ble Appellate Court observed as under:
“25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as
also contours of the powers of remand that when the available evidence is sufficient to
dispose of the matter, the proper course for an Appellate Court is to follow the mandate
of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases
where the decree in challenge is reversed in appeal and a re-trial is considered
necessary that the Appellate Court shall adopt the course of remanding the case. It
remains trite that order of remand is not to be passed in a routine manner because an
unwarranted order of remand merely elongates the life of the litigation without serving
the cause of justice. An order of remand only on the ground that the points touching
the appreciation of evidence were not dealt with by the Trial Court may not be
considered proper in a given case because the First Appellate Court itself is possessed
of jurisdiction to enter into facts and appreciate the evidence. There could, of course,
be several eventualities which may justify an order of remand or where remand would
be rather necessary depending on the facts and the given set of circumstances of a
case.”
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“25.6. The present case had clearly been the one where the parties had adduced all their
evidence, whatever they wished to; and it had not been the case of the plaintiff-appellants
that they were denied any opportunity to produce any particular evidence or if the trial
was vitiated because of any alike reason. As noticed, there had been several suspicious
circumstances surrounding the Will in question, some of which were noticed by the Trial
Court but were brushed aside by it on untenable reasons. The High Court has
meticulously examined the same evidence and the same circumstances and has come to a
different conclusion that appears to be sound and plausible, and does not appear
suffering from any infirmity. There was no reason or occasion for the High Court to
consider remanding the case to the Trial Court. The contention in this regard is required
to be, and is, rejected.”
(emphasis supplied)
19.1 Likewise in the case of Jaishri (supra), the Hon’ble
Karnataka High Court has observed as under:
“5. It is well-settled law that an appeal Court is within its discretion to remand a
proceeding if the Court is satisfied that there is sufficient justification for doing so and
one of the paramount considerations in such cases is the question as to whether the
party that is complaining was precluded or prevented from either taking part in the
proceeding or from leading evidence or from either prosecuting or defending the
proceeding. If it is demonstrated on the other hand to the appeal Court that an
opportunity was made available and that the opportunity was not availed of, then to my
mind, a remand is not only contra-indicated, but a remand would be totally precluded
in law insofar as it is not the scheme of judicial proceedings that litigants and those
who represent them be afforded multiple opportunities and that litigation be re-routed
in circles regardless of the effect that this procedure would have on the opposite party.
The law must always bear in mind that in showing indulgence to one side, that a Court
cannot do violence or injustice to the opposite party. On the facts of the present case,
there is absolutely nothing before this Court to indicate that the defendants were
precluded from establishing their defence. They filed a detailed written statement, they
have taken part in the proceedings, it is not as though the learned Trial Judge has
disposed of the suit hurriedly, there were several defendants and even if one of them was
ill, there were several others capable of instructing their learned Advocates. Also, I
refuse to accept the position that if a learned member of the bar is handicapped through
a prolonged illness, that alternate arrangements were impossible. Nothing of this sort
has been demonstrated and in the absence of any such material, it would be incorrect for
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handicapped in the course of the trial before the lower Court.”
“6. Another aspect of the matter that looms large is the fact that no material has been
put forward in support of the defence that was pleaded even at this stage. As regards the
plea of self-acquisition, no documents are forthcoming to indicate the source of the
funds, dates of the transactions etc. all of which would have been reflected from the
relevant records. As regards the grave allegations against the plaintiff are concerned, to
my mind, these are the commonplace accusations that are unfortunately made in a large
number of similar proceedings and which ought not to be done because, to my mind, it
was quite obvious that even though such allegations were made, the defendants would
never have been able to substantiate them. In this background, it would not only be a
miscarriage, but a travesty of justice if the matter were to be remanded to the Trial Court
to provide an opportunity to the defendants to repeat such charges and attempt to
humiliate the plaintiff in a futile attempt to sustain them. The nature of the material that
is contained in the written statement is an additional ground that would impel any Court
to refuse any discretionary order to the party rather than to grant it. These are serious
considerations which an appeal Court has to bear in mind because, applications for
remand are loosely made, but they can only be granted in the rarest of the rare cases. I
have already observed that as far as the cross appeal is concerned, the ground on which
the rectification in the decree is sought is fully justified and therefor, the second of these
two appeals will have to be allowed.”
(emphasis supplied)
19.2. Recently also, Hon’ble Apex Court in the case of Vinod Infra
Developers Ltd. (supra) held thus:
“9.2. Additionally, Section 54 of the Transfer of Property Act, 1882, categorically
provides that a contract for the sale of immovable property does not, by itself, create any
interest in or charge on such property. In the present case, the appellant has contended
that the agreement to sell dated 24.05.2014 was, in substance, a transaction executed as
security for the loan amount received from Respondent No. 1, and was effectively in the
nature of a mortgage, and they are now ready and willing to repay the loan amount and
redeem the mortgaged property. As already stated, the agreement to sell, power of
attorney, and other connected documents relied upon by Respondent No. 1 were
unregistered, and therefore, in law, cannot confer any title, interest, or ownership
rights in respect of the subject property. It is also significant to note that these
documents were expressly revoked by the appellant on 24.05.2022 and 27.05.2022 –
prior to the execution of the impugned sale deeds. Moreover, Respondent No. 1 has notPage 12 of 19
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filed any suit for specific performance of the alleged agreement to sell, which further
renders his claim untenable. In the absence of a suit for specific performance, the
agreement to sell cannot be relied upon to claim ownership or to assert any
transferable interest in the property. This legal position has been conclusively laid
down by this Court in Suraj Lamp & Industries (P) Ltd. v. State of Haryana , wherein,
it was held that unregistered agreements to sell, even if coupled with possession, do not
convey title or create any interest in the immovable property. It was further clarified
that such documents are insufficient to complete a sale unless duly registered and
followed by appropriate conveyance. The relevant paragraphs of the said judgment are
extracted below:
“16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale
does not, of itself, create any interest in or charge on such property. This Court in Narandas
Karsondas v. S.A. Kamtam and Anr., 1977 3 SCC 247, observed: (SCC pp.254-55, paras 32-33
& 37)
“32. A contract of sale does not of itself create any interest in, or charge on, the property.
This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran
Prasad v. Ram Mohit Hazra, 1967 1 SCR 293. The fiduciary character of the personal
obligation created by a contract for sale is recognised in Section 3 of the Specific Relief
Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a
contract of sale is described in Section 40 of the Transfer of Property Act as an obligation
arising out of contract and annexed to the ownership of property, but not amounting to an
interest or easement therein.
33. In India, the word ‘transfer’ is defined with reference to the word ‘convey’. The word
‘conveys’ in Section 5 of Transfer of Property Act is used in the wider sense of conveying
ownership…
37….that only on execution of conveyance, ownership passes from one party to another….”
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra, 2004 8 SCC 614 this Court
held:
“10. Protection provided under Section 53-A of the Act to the proposed transferee is a
shield only against the transferor. It disentitles the transferor from disturbing the
possession of the proposed transferee who is put in possession in pursuance to such an
agreement. It has nothing to do with the ownership of the proposed transferor who remains
full owner of the property till it is legally conveyed by executing a registered sale deed in
favour of the transferee. Such a right to protect possession against the proposed vendor
cannot be pressed in service against a third party.”
18. It is thus clear that a transfer of immovable property by way of sale can only be by a
deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and
registered as required by law), no right, title or interest in an immovable property can be
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transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance
(deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and
will not confer any title nor transfer any interest in an immovable property (except to the
limited right granted under Section 53-A of the TP Act). According to the TP Act, an
agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of the TP Act enacts that sale of immovable property can be made only by a
registered instrument and an agreement of sale does not create any interest or charge on its
subject-matter.
Scope of power of attorney
20. A power of attorney is not an instrument of transfer in regard to any right, title or
interest in an immovable property. The power of attorney is creation of an gency whereby
the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor,
which when executed will be binding on the grantor as if done by him (see section 1A and
section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time
unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does
not have the effect of transferring title to the grantee.
21. In State of Rajasthan v. Basant Nehata, 2005 12 SCC 77, this Court held:
“13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act.
By reason of a deed of power of attorney, an agent is formally appointed to act for the
principal in one transaction or a series of transactions or to manage the affairs of the
principal generally conferring necessary authority upon another person. A deed of power of
attorney is executed by the principal in favour of the agent. The agent derives a right to use
his name and all acts, deeds and things done by him and subject to the limitations contained
in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is
well known, a document of convenience.
…
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also
the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is
executed by the donor so as to enable the donee to act on his behalf. Except in cases where
power of attorney is coupled with interest, it is revocable. The donee in exercise of his
power under such power of attorney only acts in place of the donor subject of course to the
powers granted to him by reason thereof. He cannot use the power of attorney for his own
benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter
between the donor and the donee.” An attorney holder may however execute a deed of
conveyance in exercise of the power granted under the power of attorney and convey title
on behalf of the grantor.
Scope of Will
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22. A will is the testament of the testator. It is a posthumous disposition of the estate of the
testator directing distribution of his estate upon his death. It is not a transfer inter vivos.
The two essential characteristics of a will are that it is intended to come into effect only
after the death of the testator and is revocable at any time during the life time of the
testator. It is said that so long as the testator is alive, a will is not be worth the paper on
which it is written, as the testator can at any time revoke it. If the testator, who is not
married, marries after making the will, by operation of law, the will stands revoked. (see
sections 69 and 70 of Indian Succession Act, 1925). Registration of a will does not make it
any more effective.
Conclusion
23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any
interest in an immovable property. The observations by the Delhi High Court, in Asha M.
Jain v. Canara Bank, 2001 94 DLT 841, that the “concept of power of attorney sales have
been recognized as a mode of transaction” when dealing with transactions by way of
SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general
public into thinking that SA/GPA/WILL transactions are some kind of a recognized or
accepted mode of transfer and that it can be a valid substitute for a sale deed. Such
decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded
transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully
transferred/conveyed only by a registered deed of conveyance. Transactions of the nature
of ‘GPA sales’ or ‘SA/GPA/WILL transfers’ do not convey title and do not amount to
transfer, nor can they be recognized or valid mode of transfer of immoveable property.
The courts will not treat such transactions as completed or concluded transfers or as
conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53-A of
the TP Act. Such transactions cannot be relied upon or made the basis for mutations in
Municipal or Revenue Records. What is stated above will apply not only to deeds of
conveyance in regard to freehold property but also to transfer of leasehold property. A
lease can be validly transferred only under a registered assignment of lease. It is time that
an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA
sales.”
“9.3. This Court reaffirmed the same position in Cosmos Co. Operative Bank Ltd v. Central
Bank of India & Ors, where it was reiterated that title and ownership of immovable property can
only be conveyed by a registered deed of sale. The following observations are significant:
“25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also
relevant.
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26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel
Ahmed v. Syed Akhlaq Hussain,2023 SCCOnLineSC 1526 wherein the Court after referring
to its earlier judgment held that the person relying upon the customary documents cannot
claim to be the owner of the immovable property and consequently not maintain any claims
against a third-party. The relevant paras read as under:-
“10. Having considered the submissions at the outset, it is to be emphasized that irrespective
of what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that
no title could be transferred with respect to immovable properties on the basis of an
unregistered Agreement to Sell or on the basis of an unregistered General Power of
Attorney. The Registration Act, 1908 clearly provides that a document which requires
compulsory registration under the Act, would not confer any right, much less a legally
enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the
Agreement to Sell and the Power of Attorney were registered, still it could not be said that
the respondent would have acquired title over the property in question. At best, on the basis
of the registered agreement to sell, he could have claimed relief of specific performance in
appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the
Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred
without a registered document. Even the judgment of this Court in the case of Suraj Lamps
& Industries (supra) lays down the same proposition. Reference may also be made to the
following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar, 2018 7 SCC 639
(ii). Balram Singh v. Kelo Devi Civil Appeal No. 6733 of 2022
(iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra, SLP(C) No. 15774 of
2022.
12. The embargo put on registration of documents would not override the statutory provision
so as to confer title on the basis of unregistered documents with respect to immovable
property. Once this is the settled position, the respondent could not have maintained the suit
for possession and mesne profits against the appellant, who was admittedly in possession of
the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps &
Industries (supra) would be prospective is also misplaced. The requirement of compulsory
registration and effect on non-registration emanates from the statutes, in particular the
Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries
(supra) only approves the provisions in the two enactments. Earlier judgments of this Court
have taken the same view.”
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“9.4. Furthermore, in M.S. Ananthamurthy v. J. Manjula, this Court undertook a
comprehensive analysis of the statutory provisions and precedents, and reaffirmed that an
unregistered agreement to sell does not and cannot by itself create or transfer any right, title,
or interest in immovable property. The following paragraphs are pertinent in this regard:
“47. It is a settled law that a transfer of immovable property by way of sale can only be by a
deed of conveyance. An agreement to sell is not a conveyance. It is not a document of title or
a deed of transfer of deed of transfer of property and does not confer ownership right or
title. In Suraj Lamp (supra) this Court had reiterated that an agreement to sell does not meet
the requirements of Sections 54 and 55 of the TPA to effectuate a ‘transfer’.
…..
51. Section 17(1)(b) prescribes that any document which purports or intends to create,
declare, assign, limit or extinguish any right, title or interest, whether vested or contingent,
of the value of one hundred rupees and upwards to or in immovable property is compulsorily
registerable. Whereas, section 49 prescribes that the documents which are required to be
registered under Section 17 will not affect any immovable property unless it has been
registered. …
53. Even from the combined reading of the POA and the agreement to sell, the submission of
the appellants fails as combined reading of the two documents would mean that by executing
the POA along with agreement to sell, the holder had an interest in the immovable property.
If interest had been transferred by way of a written document, it had to be compulsorily
registered as per Section 17(1)(b) of the Registration Act. The law recognizes two modes of
transfer by sale, first, through a registered instrument, and second, by delivery of property if
its value is less than Rs. 100/-.”
Accordingly, it is abundantly clear that the unregistered agreement to sell dated 24.05.2014
cannot, under any circumstance, create or convey any right, title or interest in favour of
Respondent No.1 under Section 54 of the Transfer of Property Act, 1882. The subsequent
revocation of authority further nullifies any claim to title based on such documents.”
(emphasis supplied)
20. Thus, a conjoint reading of all these judgments and keeping
in mind the facts on hand would suggest that the Appellate Court
has exceeded its jurisdiction by remanding the matter back to the
Trial Court in as much as defendant No.3 & 4 neither made out a
case of remand nor able to prove that they are title holder of suit
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properties having not proved on record that they have purchased
suit properties through registered sale deed.
21. Normally, in such type of factual situation, when this Court
would arrive at a conclusion that the Appellate Court could not
have remanded the matter back to the Trial Court and ought to
have decided appeal on its merit, after quashing and setting aside
such judgment and decree of Appellate Court, in a given case,
directed the Appellate Court to decide appeal on its merit. But, in
light of the aforesaid peculiar facts and circumstances of the
present case and when, defendant Nos.3 and 4 have not availed
such opportunity to lead appropriate evidence before Appellate
Court by filing any application under Order XLI Rule 27 of C.P.C.
and so also, it remained undisputed that defendant Nos.3 and 4
having not put in possession by way of execution of registered sale
deed either by plaintiffs and/or their alleged power of attorney
holder i.e. defendant No.2, no fruitful purpose would be served by
remanding the matter back to the Appellate Court to decide the
appeal on its merit. Thus, considering these peculiar facts and
circumstances, I would like to pass following order.
CONCLUSION
22. In view of the aforesaid reasons, it is hereby held that
Appellate Court has committed a serious error of law by remanding
the matter back, whereby erroneously and arbitrarily quashed and
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set-aside well reason judgement/decree passed by the Trial Court.
Thus, the judgement/decree impugned in the present appeal is
hereby quashed and set-aside. Consequently, the judgment and
decree passed by the Trial Court is restored back.
23. As this Court has set aside the judgement/decree of remand
passed by Appellate Court and as such the defendant Nos.3 and 4
were directed by the Appellate Court to deposit/pay Rs.20,000/- as
costs to be paid to original plaintiffs and it is reported to this Court
that as such the amount of costs is already deposited/paid by
defendant Nos.3 and 4 to plaintiffs, then in view of above, if such
amount either deposited by defendant Nos.3 and 4 lying with
Appellate Court and/or Trial Court and or paid to plaintiffs, such
amount shall be refunded to defendant Nos.3 and 4 either by
plaintiffs and or by the Court concerned upon proper verification.
24. Accordingly, the present appeal is allowed to the aforesaid
extent. No order as to costs. In sequel, Civil Application is also
disposed of.
(MAULIK J.SHELAT,J)
Nilesh
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