Uttarakhand High Court
Krishna Pal Sharma …Appellant/ vs Jagatnarayan Dwivedi on 10 July, 2025
2025:UHC:6203
HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No.89 of 2022
Krishna Pal Sharma ...Appellant/ Defendant
Versus
Jagatnarayan Dwivedi ...Respondent/Plaintiff
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Presence:-
Ms. Prabha Naithani, Advocate for the appellant
Mr. D.C.S. Rawat, Advocate for the respondent
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Hon'ble Shri Justice Subhash Upadhyay, J.
Present second appeal has been filed against the
judgment and order dated 24.03.2021 passed by learned 1st
Additional District Judge, Rishikesh, District Dehradun in
Civil Appeal No.20 of 2017 “Krishna Pal Sharma Vs.
Jagatnarayan Dwivedi” and judgment and order dated
28.02.2017 passed by Civil Judge (Junior Division), Rishikesh,
District Dehradun in O.S. No.04 of 2006, “Jagatnarayan
Dwivedi Vs. Krishna Pal Sharma and Others”.
2. An Original Suit No. 4 of 2006 was filed by the
respondent/plaintiff against the appellant/defendant with
following contentions:-
“a) Property no. 384/3, Haridwar Road (Old No.86
Haridwar Road) was purchased by
1
2025:UHC:6203respondent/plaintiff on 17.10.2002 from Ishwar Das
Kalra through registered sale deed which was
registered in Sub-Registrar Office, Rishikesh and by
supplementary registered sale deed the roof rights
were also sold to the respondent/plaintiff.
b) Appellant/defendant who is the neighour of the
respondent/plaintiff and is residing as a tenant in the
accompanying building is using the roof right illegally
and is trying to raise construction over the roof.
c) The appellant/defendant has opened a window
towards the property of the respondent/plaintiff and
the alleviation(NTTkk) on the window has also been
constructed which is extended/encroached towards
the roof of the plaintiff as such the same may be
demolished.”
3. The appellant/defendant filed a written statement
and did not disputed the fact of the purchase of the property
and its ownership by the respondent/plaintiff but contended
that the property was not sold with roof rights and on the
contrary, submitted that by a pronote dated 03.10.2006 and
an agreement Ishwar Das Kalra intended to sell the said roof
rights to him.
4. The learned Trial Court and the learned Appellate
Court on the basis of the pleadings of the parties and the
evidence adduced came to a conclusion that on the basis of the
registered sale deed the respondent/plaintiff became the owner
of the property along with roof rights and the pronote could
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2025:UHC:6203
not have been executed by Ishwar Das Kalra subsequently for
roof rights to the appellant/defendant once he had sold the
property with roof rights to the respondent/plaintiff through
registered sale deed dated 17.10.2002. This fact was also
considered by the learned Trial Court as well as the learned
Appellate Court that the agreement and the pronote which was
made sole basis for claiming roof right by the
appellant/defendant was an unregistered document. Learned
Trial Court as such recorded the finding that the
appellant/defendant could not claim any roof right on the
basis of the said unregistered document and also could not
prove that the alleviation constructed over the window which
was extended towards the property of the respondent/plaintiff
was completed prior in time to the date of registered sale deed.
5. Thus, the learned Court below decreed the suit of
the respondent/plaintiff and passed an order directing the
appellant/defendant to remove the alleviation raised towards
the property of the plaintiff.
6. The said finding of facts were also reiterated by the
learned Appellate Court. Section 17(1-A) of the Registration
Act, 1908 deals with the situation where a person claims
ownership over the property on the basis of an unregistered
document. The Hon’ble Apex Court in the case of Ameer
Minhaj Vs. Dierdre Elizabeth (Wright) Issar and Others,
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2025:UHC:6203
(2018) 7 SCC 639 has considered the effect of an unregistered
document and in para 9 to 12 of the said judgment held as
hereunder:-
“9. Section 17(1-A) of the 1908 Act reads thus:
“17. Documents of which registration
is compulsory.-(1) The following documents
shall be registered, if the property to which they
relate is situate in a district in which, and if they
have been executed on or after the date on
which, Act 16 of 1864, or the Indian Registration
Act, 1866 (20 of 1866), or the Indian
Registration Act, 1871 (8 of 1871) or the Indian
Registration Act, 1877 (3 of 1877), or this Act
came or comes into force, namely-
(1-A) The documents containing contracts
to transfer for consideration, any immovable
property for the purpose of Section 53-A of the
Transfer of Property Act, 1882 (4 of 1882) shall
be registered if they have been executed on or
after the commencement of the Registration and
Other Related Laws (Amendment) Act, 2001 and
if such documents are not registered on or after
such commencement, then, they shall have no
effect for the purposes of the said Section 53-A.”
10. On a plain reading of this provision, it is
amply clear that the document containing contract to
transfer the right, title or interest in an immovable
property for consideration is required to be registered,
if the party wants to rely on the same for the
purposes of Section 53-A of the 1882 Act to protect its
possession over the stated property. If it is not a
registered document, the only consequence provided
in this provision is to declare that such document
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2025:UHC:6203
shall have no effect for the purposes of the said
Section 53-A of the 1882 -Act. The issue, in our
opinion, is no more res integra. In S. Kaladevi v. V.R.
Somasundaram (2010) 5 SCC 401 this Court has
restated the legal position that when an a
unregistered sale deed is tendered in evidence, not as
evidence of a completed sale, but as proof of an oral
agreement of sale, the deed can be received as
evidence making an endorsement that it is received
only as evidence of an oral agreement of sale under
the proviso to Section 49 of the 1908 Act.
11. Section 49 of the 1908 Act reads thus:
“49. Effect of non-registration of
documents required to be registered.-No
document required by Section 17 or by any
provision of the Transfer of Property Act, 1882 (4
of 1882), to be registered shall-
(a) affect any immovable property
comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any
transaction affecting such property c or
conferring such power,
unless it has been registered:
Provided that an unregistered document
affecting immovable property and required by
this Act or the Transfer of Property Act, 1882 (4
of 1882), to be registered may be received as
evidence of a contract in a suit for specific
performance under Chapter II of the Specific
Relief Act, 1877 (1 of 1877). or as d evidence of
any collateral transaction not required to be
effected by registered instrument.”
12. In the reported decision, this Court has
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2025:UHC:6203
adverted to the principles delineated in K.B. Saha &
Sons (P) Ltd. v. Development Consultanı Lid. and has
added one more principle thereto that a document is
required to be registered, but if unregistered, can still
be admitted as evidence of a contract in a suit for
specific performance. In view of this exposition, the
conclusion recorded by the High Court in the
impugned judgment that the sale agreement dated 9-
7-2003 is inadmissible in evidence, will have to be
understood to mean that the document though
exhibited, will bear an endorsement that it is
admissible only as evidence of the agreement to sell
under the proviso to Section 49 of the 1908 Act and
shall not have any effect for the purposes of Section
53-A of the 1882 Act. In that, it is received as
evidence of a contract in a suit for specific
performance and nothing more. The genuineness,
validity and binding nature of the document or the
fact that it is hit by the provisions of the 1882 Act or
the 1899 Act, as the case may be, will have to be
adjudicated at the appropriate stage as noted by the
trial court after the parties adduce oral and
documentary evidence.”
7. The said view was reiterated by the Hon’ble Apex
Court in Civil Appeal No.1598 of 2023, Sakeel Ahmed Vs. Syed
Akhlaq Hussain decided on 01.11.2023.
8. In the considered opinion of this Court, the
concurrent finding recorded by the learned Trial Court and the
learned Appellate Court that the appellant/defendant could not
establish ownership rights on the roof of the plaintiff on the
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2025:UHC:6203
basis of a pronote and agreement (both unregistered
documents) are finding of facts based on appreciation of oral
and documentary evidence. Thus, no substantial question of
law arises in this matter.
9. Accordingly, second appeal fails and the same is
dismissed in limine.
(Subhash Upadhyay, J.)
10.07.2025
ss
SUKHBANT
Digitally signed by SUKHBANT SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=71978f9c61bfde0ba69967c787b1764ea7bc7dd129a8a6380
SINGH
d49b1885e628615, postalCode=263001, st=UTTARAKHAND,
serialNumber=2D8B71B8D8E345F6B7F95B1DD4FB4BEBD2B7D72C4
2261361AED33172F152148D, cn=SUKHBANT SINGH
Date: 2025.07.17 10:20:26 +05’30’
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