Transfer Of Immovable Property Via Exchange Of Letters Or Affidavits Impermissible: Allahabad High Court

The Allahabad High Court observed that if transfer of immovable property by a citizen to the State or inter-se two citizens is permitted via exchange of letters or affidavits, it would lay down an illegal mode of transfer of property.

The Court observed thus in a second appeal filed by the Catholic Diocese of Gorakhpur, challenging the judgment of the First Appellate Court by which it allowed the appeal of the plaintiffs and decreed the suit.

A Single Bench of Justice Kshitij Shailendra held, “This Court is conscious of the situation that if transfer of immovable property by a citizen to the State or inter-se two citizens is permitted through exchange of letters or affidavits, it would lay down an unprecedented and unique but absolutely illegal mode of transfer of property and immovable property would, then, become capable of being transferred completely dehors the provisions of the Transfer of Property Act, Registration Act or any other law governing creation of rights in immovable property.”

The Bench emphasised that once the Court has arrived at a conclusion that the action of the State as well as Catholic Diocese did not have any sanction of law, rather it amounted to grabbing land of a rustic villager and committing trespass over it, the appeal deserves to be dismissed with heavy cost.

Senior Advocate Navin Sinha, Advocates Subhash Ghosh, Raghvendra Nayar, and Saraswati Yadav represented the appellant while ACSC Vinod Kumar Sahu, Advocates Sanjay Goswami, and Pramod Kumar Singh represented the respondents.

In this case, a suit was filed stating that the plaintiff/respondent was Bhumidhar in possession over a plot situated in Gorakhpur. A statement filed by him before the Competent Authority under Urban Land (Ceiling and Regulation) Act, 1976 was pending and when the defendants (appellant) started en-covering the land by raising constructions of boundary wall and the plaintiff objected to the same. The defendants threatened him to raise constructions of a hospital over the land. It was alleged through amendment that a lease deed was executed by the State in favour of the appellant-defendant, though the State had no right to execute a lease.

Further pleading was that the land of the plaintiff had not been declared vacant and, consequently, a decree was prayed for directing the defendants to remove constructions raised over the portion marked by some Hindi letters in the plaint map and deliver possession of the land to the plaintiff and, on their failure to do so, possession through process of the Court be delivered and the lease deed be also cancelled. Moreover, a decree restraining the respondents from raising any constructions over the land was also claimed. The suit was dismissed by the Trial Court but the appeal filed by the respondents was allowed by the First Appellate Court. Consequently, the suit was decreed. Therefore, the defendants’ second appeal arose out of non-concurrent judgments.

The High Court in view of the facts and circumstances of the case noted, “In the instant case, the lease created in favour of the appellant is for a period of 90 years and, therefore, it had to be through any recognized mode of transfer qua the disputed plot in clear terms and, even before that, it must have been established on record that initial transfer by plaintiff-Bhola in favour of State/District Magistrate was having a sanction of law, which is not found here.”

The Court said that vesting or deemed vesting or absolute vesting or voluntary surrender can be understood in respect of land, which was exempted from ceiling proceedings, which exactly is the situation in the present case.

“… no part of plaintiff’s share in plot No. 197 was ever declared as surplus/vacant, rather, under the order dated 18.12.1980 passed by the Competent Authority, statement No. 3234 furnished by the plaintiff was accepted and the said order had attained finality”, it added.

Furthermore, the Court enunciated that, once it is held that the disputed plot no. had never lawfully vested either in State or in District Magistrate nor did it form part of the lease deed executed in favour of appellant nor was transfer of its possession otherwise lawful having support of any statutory provision, the order recalling the previous order of giving the property to the appellant for maintenance, is to be upheld.

“… the action of the respondents is nothing, but apparently property grabbing by the State officials to the detriment of the interest of a rustic tenure holder, who fell as a prey in the sharp and deadly jaws of giant administrative machinery run by the State in collusion with the appellant and this Court can safely reach to a conclusion that even the application 157-Ka and the affidavits enclosed thereto might have been obtained from the tenure holders including the plaintiff-respondent under coercion in order to grab the land covered by plot No. 26, which might suit to the proposal of raising some constructions by the appellant-Society over the disputed land or the land adjoining thereto”, it remarked.

The Court also elucidated that the Court cannot approve such a property grabbing by the State or the appellant, particularly when it has no statutory or otherwise sanction of law and that the office of the Sub-Registrar too is under the supervision of the District Magistrate being head of the Collectorate.

“… all the officials and their team members joined hands together to design and engineer transactions and actions that had no legal foundation or sanctity and, therefore, irresistible conclusion drawn by this Court is that raising of boundary wall over the disputed land or any other constructions thereon or taking over possession of the same is a clear act of trespass”, it observed.

The Court said that, once it is found that the alleged admission made by the plaintiff in application and affidavit allegedly submitted by him is of no consequence, significance or legal sanctity and cannot be termed as documents conferring right, title, interest or possession in favour of the appellant or the State of U.P., and having further found that share of the plaintiff was never declared surplus, the first question, on which the instant second appeal was admitted, is answered in the manner that the first Appellate Court was perfectly justified in decreeing the suit and no factual or legal error is found in its order.

“… it is held that civil suit was perfectly maintainable as per Section 9 of the Code of Civil Procedure. Hence, the judgment and decree drawn by the first Appellate Court is well within jurisdiction as the suit property covered by plot No. 26 had no concern with the appellant or the State and was alien to ceiling proceedings”, it ruled.

The Court held that even if the defendant-appellant had raised constructions over the said plot by investing huge amount, the suit was not barred by principles of estoppel and acquiescence as there was neither any voluntary surrender of property nor a transfer having legal sanction in favour of defendants.

“The Court may take aid of Rule 33 of Order XLI of Code of Civil Procedure where the Appellate Court shall have power to pass any decree and make any order which ought to have been passed as the case may require and the said power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection”, it added.

The Court referred to the latin legal phrase fiat justitia ruat caelum that means "Let justice be done though the heavens fall." The Court, therefore, awarded exemplary cost and damages against defendants (appellant), amounting to Rs. 10 lakhs.

Accordingly, the High Court dismissed the second appeal with cost to be jointly borne by the appellant and the State Government and its functionaries in equal share.

Cause Title- The Catholic Diocese of Gorakhpur v. Bhola Deceased and 4 Others (Neutral Citation: 2024:AHC:146911)

Appearance:

Appellant: Senior Advocate Navin Sinha, Advocates Subhash Ghosh, Raghvendra Nayar, Saraswati Yadav, Sanjiv Singh, A.P. Tiwari, Namwar Singh, and S.S. Tripathi.

Respondents: ACSC Vinod Kumar Sahu, Advocates Sanjay Goswami, Pramod Kumar Singh, S.P.K. Tripathi, Arvind Srivastava III, Ashish Kumar Srivastava, Manish Kumar Nigam, and Praveen Kumar.

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