Padmalochan Singh v. Sudhir Chandra Raut — 1986 DIGILAW 456 (CAL)

JUDGMENT This appeal against the judgment and decree dated July 22, 1968 passed by the additional District Judge, 2nd Court, Midnapore, reversing the judgment and decree dated January 31, 1968 passed by the learned Munsif, 2nd Court, Contain, in other Suit No. 208 of 1964, is en behalf of the defendant Nos. 2 to 4. The plaintiff instituted suit for specific performance of contract of sale of the suit land. The plaintiff's case in brief is as follows : 2. The suit land belonged to defendant No. 1, who contracted to sell it to the plaintiff for Rs. 1,500/-. The Plaintiff at the material time had not the entire consideration money with him, the defendant No. 1 executed a bainanama in the month of Falgoon, 1367 B. S. after taking Rs. 300/- from the plaintiff. On June 5, 1961 the defendant No. 1 executed a kobala in respect of the suit land on receiving the balance of consideration money from the plaintiff. On account of illness of the defendant No. 1 and other inconvenience, the kobala could not be registered in time. In the month of Agrahayan, 1368 B. S. the defendant No. 1 agreed to execute and register a similar kobala, but inspite of repeated demands, the defendant No. 1 did not execute and register it. On Jaistha 10, 1371 B. S. the defendant refused to disclose the fact the he had sold the suit land to the defendant Nos. 2 to 4. The plaintiff instituted the suit and asserted that defendants are not bonafide purchasers for value without notice of plaintiff’s contract. They are bound by the contract and the plaintiff is entitled to get a decree against them. The defendant Nos. 2 to 4 contested the suit by denying the contract alleged by the plaintiff. They contended and asserted that the plaintiff’s bainanama and kobala are collusive and ante dated deed without consideration and had been created for the purpose of the suit. It is also contended by the defendants that they are bonafide purchasers for value without notice of the alleged contract and hence the suit should be dismissed. The following issues were framed at the trial : “1. Is there any contract for sale of the suit land between the plaintiff and the defendants as alleged, by the plaintiff ? 2. Are the defendant Nos. The following issues were framed at the trial : “1. Is there any contract for sale of the suit land between the plaintiff and the defendants as alleged, by the plaintiff ? 2. Are the defendant Nos. 2 to 4 bonafide purchasers for value without notice as claimed by them ? 3. Is the plaintiff entitled to a decree as prayed for ?” 3. The learned trial Court on consideration of the materials on record and respective pleadings of the parties came to the finding that the defendant No.1 executed the deed on receiving the consideration money mentioned therein. It is also found by the learned trial Court that defendant No. 1 did not come forward to deny the alleged contract or execution of the bainanama Ext. 3 and kobala Ext. 1, nor did he say that he did not receive any consideration money under the aforesaid deed. The learned trial Court further fond the bainanama Ext. 3 and kobala Ext. 1 are genuine and the defendant No. 1 executed them on receiving the consideration money as mentioned therein, and accordingly, the finding of the learned trial Court is that there is contract for sale of the suit land between the plaintiff and the defendant No. 1 as alleged. The learned trial Court proceeded on the footing that the plaintiff can succeed in the suit provided the plaintiff established that the defendant Nos. 2 to 4 are not bonafide purchasers for value without notice of the said contract. The learned trial Court considered the matter from the angle whether the defendants were aware of the plaintiff's contract at the time of the execution of the kobala. Ext. 1 and on consideration of the evidence on record, the learned trial Court found that the defendant Nos. 2 to 4 in all probabilities were not present at the time of the execution of the bainanama Ext. 3 and kobala Ext. 1. It is also found by the learned trial Court that the defendant No.3 was present in the kobala majlish. According to P.W. 4 he was present in the kobala majlish. P. W. 4 deposed that only he was present in the kobala majlish. So their evidence on this point is inconsistent and contrary and they are in conflict with each other. According to P.W. 4 he was present in the kobala majlish. P. W. 4 deposed that only he was present in the kobala majlish. So their evidence on this point is inconsistent and contrary and they are in conflict with each other. The learned trial Court on consideration of the circumstances came to the finding that at the time of the execution of bainanama Ext. 3, and kobala Ext. 1, the defendant Nos. 2 to 4 were not present and they, therefore, were not aware of this deed or the plaintiff's contract at the time of the kobala Ext. 1, or in other words it is found that the defendant Nos. 2 to 4 are purchasers without notice of the plaintiff's contract. It is also found by the learned trial Court that the consideration money was paid by the defendant Nos. 2 to 4 and got their names mutated in the landlord's seresta and paid rent. The learned trial Court accordingly accepted the defendants' explanation about the kobala and further found that the defendant Nos. 2 to 4 are bonafide purchasers for value without notice of the plaintiff's contract. It was held by the trial Court that the contract cannot be enforced against the defendant Nos. 2 to 4. Accordingly, the defendant Nos. 2 and 3 with cost and ex parte against the rest. 4. The plaintiff came up before the lower appellate Court in appeal challenging the judgment and decree dated January 31, 1964. The learned lower appellate Court held that the 'only points' for determination in the present appeal are as follows : "1. Whether there was any contract for sale of the suit land between the plaintiff and the defendant No. 1 and whether the defendant No.1 executed the alleged bainanama and sale deed after receipt of the entire consideration money? 2. Whether the defendant Nos. 2 to 4 are the bonafide purchasers for value without notice of the contract for sale between the defendant No.1 and the plaintiff ? 3. Whether the plaintiff is entitled to the relief as claimed ?" The learned lower appellate Court found that the evidence of P.Ws. 2, 3 and 4 satisfactorily established that the defendant No.1 agreed to sell the suit land to the plaintiff for consideration Rs. 1,500/- and that the defendant No.1 executed the bainanama Ext. 3 on receipt of the amount of Rs. 2, 3 and 4 satisfactorily established that the defendant No.1 agreed to sell the suit land to the plaintiff for consideration Rs. 1,500/- and that the defendant No.1 executed the bainanama Ext. 3 on receipt of the amount of Rs. 300/- from the plaintiff and subsequently the defendant No.2 executed the kobala Ext. 1 in favour of the plaintiff on receipt of the balance consideration money of Rs. 1,200/- and accordingly the learned lower appellate Court held that the learned Trial Court has been justified in arriving at the finding that the bainanama and kobala were genuine documents and the defendant No.1 executed the same after taking the entire consideration money of Rs. 1,500/-. 5. The serious thrust of the plaintiff against the finding that the defendant Nos. 2 to 4 are the bonafide purchasers for value without notice of the contract for sale is that the learned trial Court did not properly appreciated the evidence in this respect. On consideration of the evidence the learned lower appellate Court reached its finding that the defendant Nos. 3 and 4 were present in the kobala majlish and accordingly disbelieved the evidence of P.Ws. 2, 3 and 4. The learned lower appellate Court also reached its finding that the learned trial Court was not justified in arriving at the finding that the defendant Nos. 2 to 4 are not aware of the bainanama and the kobala executed by the defendant No. 1 in favour of the plaintiff in respect of the suit land. The finding of the learned trial Court was that the defendant Nos. 2 to 4 are purchasers of the suit land on the basis of the kobala Ext. A on payment of the consideration money and the defendant Nos. 2 to 4 had the means to pay the consideration money and of the kobala the said finding the learned trial Court remains unchallenged before the learned lower appellate Court. The finding of the learned lower appellate Court that the defendant No. 1 made over the title deeds to one Hemanta Kumar & since then, the title deeds were in custody of the said Hemanta Kumar, leads to the conclusion that the title deeds, Ext. 2 and Ext. 2A were actually made over to the defendant Nos. 2 to 4 by the defendant No. 1 and accordingly the mistake was committed by the trial Court. 6. Mr. 2 and Ext. 2A were actually made over to the defendant Nos. 2 to 4 by the defendant No. 1 and accordingly the mistake was committed by the trial Court. 6. Mr. R. N. Mitra, the learned Advocate for the appellant, while assailing the judgment and decree of the lower appellate Court raised specifically the question of law as to whether the suit can be maintained in its form and section 77 of the Registration Act (hereinafter referred to as the said Act) could be by passed. In support of his contention that the present suit is not maintainable by reason of failure of the plaintiff to approach before the Registering Authority under the relevant provisions including section 77 of the said Act, be submitted that the prayer as couched could be maintained. Mr. Mitra raised a serious challenge against the judgment and decree of the lower appellate Court that the lower appellate Court fell into a great error in law in not holding that the remedy of the plaintiff was to apply before the registering authority for registration of the kobala on the refusal of the defendant No. 1 to register it and there is no finding on that count. Apart from the above Mr. Mitra further asserted that the prayer as couched being beyond the scope of registering authority under section 77 of the said Act and the registering authority under the said Act not having been approached nor there being any exhaustion of the remedy as provided for in the said Act the suit ought not to have been filed. Mr. Mitra further proceeded in support of the contention that the failure of the plaintiff to approach before the registering authority could disentitle him to ask for any relief, inasmuch as, the plaintiff with a view to circumvent the provisions of the said Act instituted the suit, which is otherwise not maintainable. Mr. Mitra also asserted that the non-consideration of the material evidence by the learned lower appellate Court involves substantial question of law. In support of his contention Mr. Mitra referred to a number of decisions which are noted as under : (i) In (1) Edun v. Mahommed Siddik & Ors., reported in ILR 9 Calcutta 150. Mr. Mitra also asserted that the non-consideration of the material evidence by the learned lower appellate Court involves substantial question of law. In support of his contention Mr. Mitra referred to a number of decisions which are noted as under : (i) In (1) Edun v. Mahommed Siddik & Ors., reported in ILR 9 Calcutta 150. It is held that under the relevant provisions of the Registration Act of 1877 a suit to compel registration is maintainable only when the provisions of section 77 of the Act have been complied with. A person omitting to make an application to the Registrar as provided by section 73 within the time provided by section 72, cannot be said to have complied with the conditions precedent to a suit under section 77. Independently of section 77 of the Act, not suit will lie. (ii) In (2) Venkatasami v. Krishtayya reported in ILR 16 Madras 341. In the said case the plaintiff and the defendant agreed that in consideration of a sum of money already paid and of a further sum to be paid on the completion of the transaction, the defendant should transfer a certain mortgage to the plaintiff and an instrument of transfer was prepared and executed to give effect to that agreement, but it was not registered. The plaintiff now sued for a decree compelling the defendant to execute and register that or a similar instrument. It was held by the Court that the plaintiff was not entitled to a decree for compulsory registration and should have proceeded under sections 36, 72 to 77 of the Registration Act, 1877. (iii) In (3) K. Satyanarayana v. Y. Chinna Venkatarao & Ors. reported in ILR 49 Mad. 302. The plaintiff in the aforesaid case tendered sale deed for registration, but the execution was denied. The Registrar refuses to register the sale deed presented by the plaintiff for registration. It is held by the Court that the sale remedy of the purchaser is to file a suit as provided by section 77 of the said Act for registration of the deed within 30 days of the refusal and not a suit for specific performance of the contract, such as the execution of a new sale deed and delivery at lands. (iv) In re : (4) Sheik Abdul Aziz reported in ILR 11 Bombay 691, following the decision in the case of (5) Radhakissan Rowra Dakna v. Chooneselal, ILR 5 Cal 445 it was held that non-appearance of a mortgagor in pursuance of the summons was equivalent to denial of execution within the meaning of section 35 of the Registration Act of 1977 and that under the provisions of that section, the sub-registrar was bound to refuse to register the deed. The Court accordingly made an order directing the registrar to proceed under section 74 to make the enquiry therein directed. 7. Mr. Mitra further relied on sections 35, 36, 73, 74 and 77 of the said Act. In support of the contention that the aforesaid provisions of the said Act lay down elaborate procedure on admission and denial of execution respectively, procedure where appearance of executant or witness is desired, application to Registrar where Sub-Registrar refuses to register on ground of denial of execution, procedure of Registrar on such application and suit in case of order of refusal by Registrar. Mr. Mitra strenuously argued that in case where denial as contained in section 73 of the said Act is made before the Registrar in respect of document presented for registration to him, the Registrar shall as soon as conveniently may be enquire whether the document has been executed and whether the requirements of law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration. Section 74 confers power upon the Registrar to enquire and thereby affords effective protection to the aggrieved person. According to Mr. Mitra, right to sue or to file a suit under section 77 of the said Act has not been exercised by the plaintiff to Circumvent the said provision if section 77 of the said Act. ILR 9 Calcutta 150 lays down the principle that no suit lies to enforce registration independently of section 77 of the Registration Act, 1877. 8. Mr. M. N. Ghosh, learned Advocate appearing for the Respondents, seriously and straneously argued that in a suit brought under section 77 of the said Act no claim other than that to have the document registered can be made. 8. Mr. M. N. Ghosh, learned Advocate appearing for the Respondents, seriously and straneously argued that in a suit brought under section 77 of the said Act no claim other than that to have the document registered can be made. If other claims are joined the proper course for the court is to direct an amendment, but a relief for possession does not come within the scope of the section. Mr. Ghosh further submitted that a suit is maintainable inasmuch as the relief prayed for by the plaintiff cannot be otherwise maintained by the registering authority under section 77 of the said Act. Apart from above Mr. Ghosh sought to analyse the different provisions of the said Act for the purpose of justifying his contention that the lesser remedy provided by section 77 of the said Act does not take away such remedy under Specific Relief Act. In support of his contention Mr. Ghosh referred to a number of decisions, which may be summerised as follow : (i) In (6) W. W. Broucks v. Rajah Shabeb Mohan Bikram Shah reported in 14 CWN 12. In a suit for a decree directing the registration of certain documents, the enquiry in court is to be directed to two points only, namely, whether the documents had been executed and whether certain requirements of the law as to presentation for registration in due time to the proper office and in the manner generally prescribed by the Registration Act had been complied with by the person presenting the documents for registration. The defendant in such a suit may possibly have good reasons why he should not be bound by the documents, but the law does not allow him to advance such reasons in a suit under section 77 of the Registration Act. (ii) In (7) Jhaman Mahton v. Amrit Mahton & Ors. reported in AIR 1946 Pat. 62. This is a suit under section 77 of the Registration Act. (ii) In (7) Jhaman Mahton v. Amrit Mahton & Ors. reported in AIR 1946 Pat. 62. This is a suit under section 77 of the Registration Act. In this case the Registrar refused to register a sale deed and as a result thereof it is open to the aggrieved party either to bring a suit for mere registration of the sale deed under section 77 or to have recourse to the fuller and more comprehensive remedy provided by a suit for specific performance of the contract for sale is not barred mereby because the aggrieved party does not choose to bring a suit under section 77 within the prescribed time. A suit in which a decree for possession is sought and relief is asked for against a third person to whom the property has been transferred by the person who executed the deed in plaintiff's favour is outside the scope of section 77. (iii) In (8) Manindra Nath Sanfui v. Lalit Mohan Sadhukhan & Ors. reported in 55 CWN 166. This is a Division Bench decision of this court was presided over by Mookerjee, J. The scope of a suit under section 77 of the Registration Act is a very limited one and is of the same nature as an enquiry before the registering authority. (iv) In (9) K. Veeran Ambalam v. Vellaimmal & Ors. reported in AIR 1960 Mad 244 . It is held that the lesser remedy provided for under section 77 of the Registration Act cannot take away the larger remedy provided for under the Specific Relief Act. The Registration Act does not touch or affect the equitable jurisdiction possession by the Civil Courts to pass a decree for specific performance where circumstances exist entitling the plaintiff to such a decree. Thus, if through no default or negligence of the vendee himself the remedy under section 77 of the Act is not available and effective and he is consequently unable to resort to the remedy and it will be futile to initiate proceedings under the Act the vendee may have his remedy for specific performance. (v) In (10) Rameshwar Prosad Sahi v. Mt. Anadi Devi & Ors. reported in AIR 1960 Pat 109 . In this case, it has been held by the court that it is then to have recourse to the fuller and more comprehensive remedy provided for specific performance of contract for sale. (v) In (10) Rameshwar Prosad Sahi v. Mt. Anadi Devi & Ors. reported in AIR 1960 Pat 109 . In this case, it has been held by the court that it is then to have recourse to the fuller and more comprehensive remedy provided for specific performance of contract for sale. These two remedies are independent and it is open to follow either of these courses for obtaining relief. 9. I am conscious of the narrow compass in which the jurisdiction of this Court under section 100 of the Code of Civil Procedure is to be exercised. Since the appeal involves substantial question of law conferring round the provisions of the said Act as aforesaid, accordingly I deal with the respective contentions of the parties for the disposal of the present appeal. On consideration of the authorities placed before this Court, it appears to me that there is no need to subscribe to either of the two extreme propositions (i) that a party to an agreement has no right whatever in any circumstances to seek specific performance of agreement once a document has been executed in pursuance of the agreement, but the document is not registered. The other is that a party to an agreement is entitled to compel the other party, who has duly executed a document in pursuance of the agreement to go on executing fresh documents by resorting to a suit or suits for specific performance so long as no document has been registered. The acceptance of the second proposition would mean that a party can take advantage of his own negligence or laches. In my view the proper and correct view to take which also seems to me to be just and equitable is this. Taking the case of an agreement to sell it cannot be said that the contract has been fully performed till there is a properly executed document which is to be registered. It cannot be said that the moment a document is executed the contract ceases to be inforce. A purchaser is always entitled to insist upon his right to have a proper registered instrument. Even vendor is bound to do all that is necessary to perfect the title of the purchaser which is includes the execution and registration of a proper conveyance. A purchaser is always entitled to insist upon his right to have a proper registered instrument. Even vendor is bound to do all that is necessary to perfect the title of the purchaser which is includes the execution and registration of a proper conveyance. It is true that the purchaser can resort to proceedings under section 77 of the said Act, which provides for special statutory remedy to obtain registration of the executed document. But he must establish that there exist a cogent ground for not resorting to proceeding under section 77 of the said Act. It might be in a certain given cases that it became impossible to obtain registration after resorting to such proceeding or because of other circumstances, which prevented under Act, then they may bring a suit for specific performance of the agreement for sale in his favour. This does not mean that every suit should be decreed and the court is not bound to grant specific performance in every case in which an agreement has not been carried out in its entirely in view of the existence of equitable remedy. Applying this proposition as stated above, the Court is required to find out as to whether the plaintiff duly resorted to the proceeding under the Registration Act to obtain registration of the executed document. In appears that the plaintiff respondent neglected to present the deed for registration within the time prescribed nor did he act with diligence in presenting the deed for registration within the time prescribe. This has to be borne in mind that will-established equitable principles justify the court to refuse to grant relief for specific performance. In the facts and circumstances of the present case the plaintiff ought of have resorted to the proceeding under the said Act the plaintiff admittedly did not do so. As a result he deliberately losses his right to have it registered. In such circumstances this Court will not hold in favour of the plaintiff on the basic ground that the plaintiff has only to blame himself for not securing registration and therefore, he would not be entitled to any relief because of his own negligence and laches. The view that I have taken finds support from decisions reported in AIR 1957 Madras 78 and AIR 1950 Madras 244. The view that I have taken finds support from decisions reported in AIR 1957 Madras 78 and AIR 1950 Madras 244. It is true that the Registration Act does not affect the equitable jurisdiction possessed by the Civil Court to pass a decree for specific performance where circumstances exist to pass such a decree. Such circumstances as are required are not otherwise present in the facts and circumstances of the instant case. Apart from the above, the Court is required to take in to consideration the basic grievance of Mr. Mitra that the judgment and decree of the learned lower appellate Court is vitiated by non-consideration of the material evidence. It is an admitted fact that of the defendant Nos. 2 to 4. Defendant No. 3 was not present on the date of the execution of the kobala nor the learned lower appellate court ignored the evidence of defendant No. 4 did not come to deny the said fact on oath. Inspite of the existing materials on record to the extent indicated above, the learned lower appellate court came to the finding that the learned trial Court was not justified in arriving that the defendant Nos. 2 to 3 were not aware of the bainanama and the kobala accepted by the defendant No. 1 in favour of the plaintiff in respect of the said land. The learned lower appellate Court further fell into an error in reaching the conclusion that the evidence established beyond any doubt that the defendant Nos. 3 and 4 were present at the time of the execution of the kobala. The finding of the learned lower appellate court is also vitiated by reason the unwarranted finding that the documentary evidence has satisfactorily established that the defendant No. 1 made over the title deeds in 1969 at the time of the execution of the kobala. The onus lies upon the plaintiff to examine Hemanta Kumar on the aspect of depositing of the title deeds. In the absence of no such examination the learned lower appellate Court wrongly misplaced the onus on the defendant by holding that Hemanta Kumar was not examined although they could have done so and thereby the finding is vitiated on the ground of misplacement of the onus. In the absence of no such examination the learned lower appellate Court wrongly misplaced the onus on the defendant by holding that Hemanta Kumar was not examined although they could have done so and thereby the finding is vitiated on the ground of misplacement of the onus. I am of the view that there did not exist any reason, which prevented the plaintiff from obtaining registration after recourse to such proceeding nor there are circumstances, which precluded the plaintiff from taking steps for obtaining registration under section 77 of the said Act. In view of the above, I am of the view, that the plaintiff is not entitled to bring a suit for specific performance of the agreement for sale in his favour. Therefore, the finding by the learned lower appellate Court is unsustainable inasmuch as he ignores the relevant and vital piece of evidence as detailed hereinbefore. My view finds support from the decisions of the Supreme Court in (11) Damadial v. Parashram reported in AIR 1976 SC 2229 , (12) Radhanath Seal v. Harpada Jana & Others reported in AIR 1971 SC 1049 and (13) Smt. Sonawati & Others v. Shri Ram and Others reported in AIR 1968 SC 466 . 10. The present appeal involves question of interpretation of section 77 and other provisions of the said Act and thereby a substantial questions of law are involved. The finding of fact reached by the learned lower appellate Court is liable to be interfered with in the facts and circumstances of the case on the ground that the learned lower appellate Court ignored the weight of preponderating circumstances and was otherwise swayed by inconsequential matters. This view of mine finds support form the decision in (14) Madanlal v. Mst. Gopi reported in AIR 1980 SC 1754 . 11. In view of the Foregoing reasoning, I am of the view that the appeal must succeed and the finding of the learned lower appellate Court cannot be sustained. 12. The appeal is accordingly allowed. The judgment and decree of the learned lower appellate Court are set aside and the judgment and decree of the trial Court is upheld and restored. There will be no order as to costs.