Andhra Pradesh High Court – Amravati
Polaka Venkata Rami Reddy vs Polaka Chinnamma on 18 June, 2025
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
REVIEW I.A.No.2 of 2024
in
CIVIL REVISION PETITION No.1728 OF 2022
ORDER :
This is an application filed under Section 114 read with
Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (for
short, „CPC‟), seeking to review the Order dated 05.01.2024
passed by this Court in C.R.P.No.1728 of 2022.
2. Heard Sri K.V.Vijaya Kumar, learned counsel for the
petitioners herein and Sri Yadavalli Ramesh, learned counsel for
1st respondent. Perused the record.
3. 1st respondent herein filed Original Suit No.56 of 2009
on the file of the Senior Civil Judge, Kandukur against the
petitioners herein and other respondents herein, seeking to
declare his right in respect of plaint „A‟ schedule property and for
consequential relief of permanent injunction restraining the
defendants therein from interfering with peaceful possession and
enjoyment of the said property. After completion of pleadings,
trial began in the suit. At the time of examination of the plaintiff
in the suit as P.W.1, Exchange Deed dated 28.01.1989 was
sought to be marked as Ex.A1. Learned counsel for defendants in
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the suit objected for the same on the ground that it is an
unregistered Exchange Deed and cannot be marked to prove
acquisition/transfer of rights. The trial Judge, vide the Docket
Order dated 14.07.2022, sustained the objection raised by the
defendants in the suit, and rejected request of plaintiff in the suit,
to mark the said Exchange Deed. Challenging the said order,
C.R.P.No.1728 of 2022 was preferred by 1st respondent/plaintiff,
and this Court, vide Order dated 05.01.2024, allowed the C.R.P.,
directing to mark the unregistered Exchange Deed dated
28.01.1989 as exhibit for the purpose of proving the collateral
transaction of delivery of possession of the respective properties
to the respective parties exchanged under the said document.
The relevant portion of the Order dated 05.01.2024 passed by
this Court in the C.R.P., reads thus:
“10. In the case on hand, a perusal of the recitals in
the document in question viz. unregistered Exchange
Deed dated 28.01.1989, shows that the parties therein
mutually exchanged their respective properties orally
and taken over possession of the respective properties
after the exchange, on 10.6.1985. Thereafter in order to
avoid legal complications, they reduced the oral
exchange effected on 10.6.1985 into writing by way of
the document in question i.e. unregistered Exchange
Deed, on 28.01.1989. Admittedly, stamp duty and
3penalty have been paid on the said unregistered
Exchange Deed. The said document is evidencing a past
transaction of exchange of properties between the parties
thereto, which took place on 10.06.1985, including
handing over the possession of the respective properties
after the exchange under the aforesaid document. It is
clear that the parties had already exchanged their
properties on 10.06.1985 and possession of respective
properties were handed over on the said date itself i.e.
on 10.06.1985, and only in order to avoid future
disputes, the said document came to be executed
between the parties on 28.01.1989. Therefore, for the
purpose of the proving collateral transaction of delivery
of possession of the respective properties to respective
parties exchanged under the said document, the
document in question can be marked. However, the trial
Court has not considered these aspects and rejected the
request of the petitioner to mark the said document.
11. Accordingly, the Civil Revision Petition is allowed
setting aside the Docket Order dated 14.07.2022 passed
in O.S.No.56 of 2009 on the file of the Senior Civil
Judge, Kandukur. The document in question i.e.
unregistered Exchange Deed dated 28.1.1989, shall be
marked as Exhibit for the purpose of proving the
collateral transaction of delivery of possession of the
respective properties to the respective parties exchanged
under the said document.”
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4. The present Review Petition is filed by petitioners,
who are some of the defendants in the suit, seeking to review
the said Order dated 05.01.2024 passed by this Court, on
the ground that the judgment of the Hon‟ble Supreme Court
reported in 2018 (5) ALD 90 SC in Syam Narayana Prasad v.
Krishna Prasad & others, categorically held that the
unregistered exchange deed cannot be marked even for
collateral purpose.
5. Section 17 of the Registration Act, 1908 specifies
the documents, whose registration is compulsory. Under
Section 17 (1) (b) of the Act, 1908, other non-testamentary
instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future,
any right, title or interest whether vested or contingent, of
the value of Rs.100/- or upwards, to or in immovable
property, are included. An Exchange Deed, which conveys
right and title in a property, falls in this category of the said
document. Therefore, an Exchange Deed is a compulsorily
registerable document. In the case on hand, the subject
Exchange Deed dated 28.01.1989 is not registered one.
Therefore, it is not admissible in evidence as mandated
under Section 49 of the Registration Act, 1908 and it will
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also not be received as evidence of any transaction affecting
such property. However, the restriction imposed under
Section 49 of the Act, 1908 is confined to the use of the
document to affect the immovable property and to use the
document as evidence of a transaction affecting the
immovable property.
6. Proviso to Section 49 of the Registration Act, 1908
carves out an exception to the Rule contained in the main
provision as regards the effect of an unregistered document
requiring registration and receiving of such document as
evidence of any transaction. It permits such document to be
received as evidence for two limited purposes viz. evidence of
a contract in a suit for specific performance and as evidence
of any collateral transaction which by itself is not required to
be affected by a registered instrument. A collateral
transaction is a transaction other than the transaction
affecting the immovable property, but which is incidentally
connected with that transaction.
7. Where a lease deed was executed leasing the
property for a term of thirty years and it is unregistered, the
terms of such a deed cannot be relied upon to claim or
enforce any right under or in respect of such lease, but it can
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be relied upon for the limited purposes of showing that the
possession of the lessee is lawful possession or as evidence of
some collateral transaction. (in SMS Tea Estates Pvt. Ltd. V.
M/s. Chandmari Tea Co. Pvt. Ltd. 2011 AIR SCW 4484).
8. Under law, a sale deed is required to be properly
stamped and registered before it can convey title to the
vendee. However, legal position is clear that a document like
the sale deed in the present case, even though not admissible
in evidence, can be looked into for collateral purposes. In the
present case, the collateral purpose to be seen is the nature
of possession of the plaintiffs over the suit land… (in Bondar
Singh & others v. Nihal Singh & others AIR 2003 SC 1905).
9. Therefore, the restriction imposed under Section
49 of the Registration Act, 1908 is confined to use of the
document to affect the immovable property and to use the
document as evidence of a transaction affecting the
immovable property. An Exchange Deed, which has the
effect of creating and taking away rights in respect of an
immovable property, is a compulsorily registerable document
under Section 17 of the Registration Act, 1908. In the
present case, the Exchange Deed dated 28.01.1989 is an
unregistered one. Therefore, it cannot be admissible in
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evidence to prove the main transaction of transfer of rights
between the parties. A perusal of the recitals of the
document in question shows that the parties therein
mutually exchanged their respective properties orally and
taken over possession of the respective properties after the
exchange, on 10.6.1985, and thereafter, in order to avoid
legal complications, they reduced the oral exchange effected
on 10.6.1985 into writing by way of the document in
question i.e. unregistered Exchange Deed, on 28.01.1989. It
is evidencing a past transaction of exchange of properties
between the parties thereto, which took place on 10.06.1985,
including handing over the possession of the respective
properties after the exchange under the aforesaid document.
Admittedly, stamp duty and penalty have been paid on the
said document. Therefore, the document is admissible for
collateral purpose to the limited extent of showing the nature
and character of possession.
10. It is the contention of the learned counsel for the
review petitioners that in the judgment reported in 2018 (5)
ALD 90 SC in Syam Narayana Prasad v. Krishna Prasad &
others, it was categorically observed by the Hon‟ble Supreme
Court that the unregistered exchange deed cannot be marked
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even for collateral purpose. In the decision in Syam
Narayana Prasad v. Krishna Prasad & others, 2018 (5) ALD
90 SC, the Hon‟ble Supreme Court held in paragraph No.20
as under:
“20. Section 17 (1) (b) of the Registration Act mandates
that any document which has the effect of creating and
taking away the rights in respect of an immovable
property must be registered and Section 49 of the
Registration Act imposes bar on the admissibility of an
unregistered document and deals with the documents
that are required to be registered under Section 17 of the
Registration Act. Since the deed of exchange has the
effect of creating and taking away the rights in respect of
an immovable property, namely, RCC building, it requires
registration under Section 17. Since the deed of exchange
has not been registered, it cannot be taken into account to
the extent of the transfer of an immovable property.”
11. A perusal of the aforesaid judgment goes to show
that the Hon‟ble Supreme Court reiterated the position of law
that since the deed of exchange has the effect of creating and
taking away rights in respect of an immovable property, it
requires registration under Section 17, and since the deed of
exchange in the said case has not been registered, it cannot
be taken into account to the extent of transfer of an
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immovable property i.e. for main purpose of transfer of rights
in immovable property. There is no observation to the extent
that the unregistered exchange deed cannot be marked even
for collateral purpose. As discussed supra, under proviso to
Section 49 of the Registration Act, 1908, the document in
question is admissible for collateral purpose to the limited
extent of showing the nature and character of possession. In
view of the aforesaid discussion, this Court is of the opinion
that there is no error apparent on the face of record,
justifying the court to exercise its power of review. The
review petition is devoid of merits and is liable to be
dismissed.
12. Accordingly, I.A.No.2 of 2024 is dismissed. No
costs.
__________________________________
JUSTICE K. SREENIVASA REDDY
18 .06.2025
DRK
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THE HON’BLE SRI JUSTICE K.SREENIVASA REDDY
REVIEW I.A.No.2 of 2024
in
CIVIL REVISION PETITION No.1728 OF 2022
18 .06.2025
DRK