Observing that an agreement to sell was generated in tune with another unregistered agreement with a view to grab Government property and such agreements have no binding effect on the Government to hold any right for the plaintiff in the Government property, the Kerala High Court held that when the property is of the Government, documents between private parties in relation to Government property have no legal effect or implication on the right of the Government, in any manner.

The High Court held so while considering a regular second appeal filed under Order XLII Rule 1 read with Section 100 of the CPC, challenging decree and judgment passed by the District Court.

Precisely, the suit was one filed seeking the relief of prohibitory injunction restraining the defendants and men under them from trespassing into the plaint schedule property, annexing a portion of the same into their possession, destroying the boundaries, boundary marks and cultivation in the plaint schedule property, committing any sort of waste and mischief therein the plaint schedule property and in any manner interfering with the peaceful possession and enjoyment of the same by the plaintiff.

A Single Judge Bench of Justice A. Badharudeen observed that “the Court is duty bound to look into the claim over government properties with greater seriousness, care, and circumspection and the possibility of destruction of the right and title of the Government properties by the unauthorized occupants, land grabbers, and upper-hand encroachers should be avoided”.

Advocate Narendra Kumar appeared for the Appellant, whereas no one appeared for the Respondents.

As per the brief facts of the case, it was the plaintiff’s case that he has got right and possession over the plaint schedule property on the strength of an unregistered agreement executed by one K.V. Paulose. The specific case was that the said Paulose obtained right and possession over 2 ½ acres of land including the plaint schedule property as per another agreement. The plaintiff pressed for grant of prohibitory injunction to protect his possession based on the previous agreement. The defendants entered appearance and countered the Suit, and denied the possession of the plaint schedule property by the plaintiff on the strength of agreement executed by K.V. Paulose. The specific allegation raised by the defendants was that the said agreement was created by the plaintiff in collusion with K.V. Paulose for the purpose of filing the Suit. It was also contended that K.V. Paulose never had possession of plaint scheduled property at any point of time.

The Trial Court dismissed the suit after finding that the agreement which created a right over the plaint schedule immovable property having value of more than Rs.100/-, requires registration as mandated under Section 17 of the Registration Act. The Trial Court also found that such agreement could not also be used for collateral transaction under Section 49 of the said Act since the document has been pressed into to prove possession and possession is not a collateral transaction or collateral purpose.

After considering the submission, the Bench noted from perusal of Section 17(1)(b), that 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 one hundred rupees and upwards, to or in immovable property would require registration.

Therefore, the Bench clarified that the agreement which is purported to convey right over the immovable property having value more than Rs.100/-, should require registration as rightly found by the trial court as well as the appellate court.

“Even though Exts.A2 and A11 were pressed into to prove right and possession over the plaint schedule property, which is the Government property, it is shocking to note that base document, whereby the plaintiff asserts right and possession over the property of the Government, Ext.A1 and its prior document, another agreement, are unregistered agreements, for which no legal sanctity to be attached”, added the Bench.

The Bench further noted that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory.

Emphasizing that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution, the High Court clarified that second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.

Therefore, finding no merits, the High Court dismissed the appeal.

Cause Title: Philomina v. Bernardshaw and Ors. [Neutral Citation: 2023/KER/64779]

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Kerala High CourtJustice A. Badharudeen

Pankaj Bajpai