Mohammed Yusuf vs Rajkumar on 5 February 2020
The appellant, was the son of Habib Kha claimed to be in possession, continued to be in possession of the aforesaid area. For perpetual injunction in respect of two areas and measuring 825 sq. ft. and 1650 sq. ft. bearing survey No.203, a Suit No.90-A of 2006 was filed on 16.09.1998 by respondent Nos. 1 and 2 against the appellants. The above said two regions was offered to respondent Nos. 4 to 7 and they were impleaded as offended parties in the above-said suit. The application was filed by the appellants in Civil Suit No. 260A of 1998 pleading that respondents have forcefully took the possession of area admeasuring 1650 sq. ft. being the part of survey No.203, which was in actual, peaceful and uninterrupted possession of the appellant and their ancestral since 1951.
Plaintiff had an objection During evidence of Mohammad Hafiz, one of the appellants, he tried to exhibit the decree dated 04.10.1985 passed in Civil Suit No.250A of 1984. The plaintiff’s objection to the admissibility of the decree was that decree being not registered cannot be accepted in evidence.
Learned Civil Judge heard the parties and passed an order dated 07.01.2015 on the issue regarding admissibility of the above document. Civil Judge took the view that decree dated 04.10.1985 is required to be registered as per provision of Section 17(1) according to section 17(e) of the Registration Act, hence it is not admissible in evidence.
A Writ Petition No.2170 of 2015 was filed by the appellant challenging the order dated 07.01.2015. The High Court by the impugned judgment has dismissed the writ petition taking the view that decree was required to be registered. The High Court held that the very fact that the suit was based on the plea of adverse possession reflects that the plaintiff of Suit No.250-A of 1994 had no pre-existing title in the suit property.
Relying on the judgment of this Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala and Another, (2014) 1 SCC 669, High Court held that it is settled that declaratory decree based on a plea of adverse possession cannot be claimed and adverse possession can only be used as a shield by the defendant. Aggrieved with the judgment of the High Court, this appeal has been filed.
This application has been recorded against the judgment of High Court of Madhya Pradesh at Indore Bench dated 13.02.2017 dismissing the writ request of the appealing party for the preliminary court dated 07.01.2015 whereby the preliminary court has held that the decree tried to be documented by the litigant is not admissible in evidence for want of registration.
In the present case, the declaration dated 04.10.1985 was with respect to property, which was subject matter of the suit, thus not secured by exclusionary condition of Section 17(2)(vi) and present case is secured by the main exception case made in Section 17(2)(vi), i.e., ” any decree or order of a Court “. At the point when enlistment of an instrument as required by Section 17(1)(b) is explicitly prohibited by Section 17(2)(vi) by giving that nothing in provision (b) and (c) of sub-area (1) applies to any announcement or request of the Court, we are of the view that the decree declaration dated 04.10.1985 didn’t require registration and learned Civil Judge just as the High Court failed in holding in any case. We, subsequently, put aside the request for the Civil Judge dated 07.01.2015 just as the judgment of the High Court dated 13.02.2017. The decree declaration dated 04.10.1985 is exhibited to be shown by the preliminary court. The appeal is allowed accordingly