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2004 DIGILAW 1009 (MP)

BAPU v. LAKHHA BANJARA DECEASED THROUGH LRS.

2004-12-13

S.K.GANGELE

body2004
JUDGMENT S.K. Gangele, J. This is defendants Second Appeal against the judgment and decree passed in Civil Appeal No. 9-A/87 dated 2-2-1989 affirming the judgment and decree passed in Civil Suit No. 66-A/82 dated 16-1-1987. The appeal was admitted on 6-11-1989 on the following substantial questions of law:- 1. Whether registration of sale deed (Ex.D-2) could be considered invalid for the reasons set out in the judgment of the first appellate Court? Whether the question of invalidity of registration of sale deed (Ex.D-2) could considered in absence of any pleading, issue or evidence on record? The plaintiff Lakhha died during the pendnecy of the appeal and his legal representatives have been brought on record vide order 23-4-1994, filed a suit for declaration and possession. It is pleaded by the plaintiff that he and defendant No. 2 are the real brothers. He had left his property seven years from the date of filing of the suit for possession of the land. When he returned back from Kota on 2-5-1982 and demanded back possession of the land, the defendant No. 2 told him that the possession is with defendant No. 3. Then he enquired from the Office and came to know that his land was sold by a registered sale-deed dated 31-5-1976 in favour of the defendant No. 1. He pleaded that he neither signed any registered sale-deed nor sold the land in favour of the defendant No. 1 and prayed for a declaration that he is the owner of the land mentioned in the plaint and also the possession thereof be also delivered to him. Defendants No. 2 and 4 did not file any reply and they remained ex parte. defendants No. 1 and 3 filed written statements denying the pleadings of the plaintiff. It is submitted by the defendants that the plaintiff had taken a loan of Rs. 1500/- and executed the sale-deed in the Office of the Sub-Registrar, Agar, because the price of the land has been increased, hence he is denying the execution of the sale-deed. Since then the Defendant No. 1 is in possession of the suit land. It is submitted by the defendants that the plaintiff had taken a loan of Rs. 1500/- and executed the sale-deed in the Office of the Sub-Registrar, Agar, because the price of the land has been increased, hence he is denying the execution of the sale-deed. Since then the Defendant No. 1 is in possession of the suit land. The trial Court has held that there was a partition between the plaintiff and defendant No. 2 and the plaintiff got the land and it has further been held by the trial Court that the sale-deed dated 31-5-1976 is forged and passed a decree in favour of the plaintiff that he is the owner of the suit land and is entitled to get possession of the suit land. The finding of the trial Court that the sale-deed (Ex.D-2) is forged, is based on the analysis of evidence of the plaintiff and other witnesses. The trial Court has held that when the plaintiff denied execution of the sale-deed, hence the burden of proof was on the defendant to prove the said sale-deed. The purchaser was not produced as a witness neither the original of the sale-deed was produced, although from the Office of the Sub-Registrar, Agar, a typed sale-deed and certified copy thereof was produced and there was an endorsement of the Sub-Registrar on the registration that the plaintiff had sold some portion of the land. On the basis of the said evidence, the trial Court has held that the sale-deed is forged. Against the judgment and decree of the trial Court, the appellant filed an appeal. The appellate Court re-appreciated the evidence and after analysing the evidence, the appellate Court has found that there was a valid registration of the document and he has proved the execution of the sale-deed, as per Section 68 of the Evidence Act because the attesting witnesses Durga, Karansingh and Hasiya were examined. Durga is the real brother of the plaintiff and he admitted in his evidence that plaintiff Lakhha executed the sale-deed. Karansingh (DW-3) also admitted execution of the sale-deed and submitted that the sale-deed was executed before the Registrar and the plaintiff had marked his thumb impression on the sale-deed. The learned appellate Court further held that the certified copy of the sale-deed (Ex.D-2) was obtained from the office of the Registrar and it was verified by the Registrar. Karansingh (DW-3) also admitted execution of the sale-deed and submitted that the sale-deed was executed before the Registrar and the plaintiff had marked his thumb impression on the sale-deed. The learned appellate Court further held that the certified copy of the sale-deed (Ex.D-2) was obtained from the office of the Registrar and it was verified by the Registrar. Hence, the execution of the sale-deed has been proved and the finding of the trial Court in this regard being contrary to law, the appellate Court set aside the same. Thereafter the appellate Court has mentioned that there is an endorsement on the sale-deed (Ex.D-2) by the Registrar, which is marked as "A to A". The endorsement is as under:- After the statement plaintiff Lakhha is saying that he had sold only three bighas of land (.575 hectares) and in the sale deed.804 r.a. land has been mentioned as sold. Signed M.S. Nigam dated 31-5-1976 Dy. Registrar. On the basis of the above endorsement, the appellate Court has held that the Registrar has not followed the mandatory provisions of section 35(3) of the Registration Act and it is against the said provisions, hence the defendants did not acquire any title on the basis of the sale-deed and dismissed the appeal. Learned counsel for the appellant has submitted that the findings of the appellate Court that due to the endorsement of the Sub-Registrar on the sale-deed, the provisions of Section 35(3) of the Registration Act have not been followed in the registration, hence the defendant appellant did not acquire any right on the basis of the sale-deed, are contrary to the law. It is an admitted position that the sale-deed was valid one and the plaintiff himself admitted before the Registrar that he had sold 3 bighas of land i.e..575 hectares, hence to that extent the defendant acquired the right on the land. Only on the basis of the above endorsement, the whole sale-deed cannot be held to be invalid. Learned counsel further submitted that the appellate Court has wrongly interpreted the citations cited in the judgment. For the analysis of the aforesaid argument, it is necessary to analyse the provisions of Section 35(3) of the Registration Act, which are as under:- Section 35. Procedure on admission and denial of execution respectively: (1) (a) ..... ...... ...... (b) ..... ..... ....... (c) ...... ...... ...... (2) ...... ...... ....... For the analysis of the aforesaid argument, it is necessary to analyse the provisions of Section 35(3) of the Registration Act, which are as under:- Section 35. Procedure on admission and denial of execution respectively: (1) (a) ..... ...... ...... (b) ..... ..... ....... (c) ...... ...... ...... (2) ...... ...... ....... (3) (a) if any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: Provided that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII. It is clear from the aforesaid provisions that these provisions are applicable only if a person denies the execution of the document before the Registrar; he shall refuse to register the document. But in the present case, the plaintiff did not deny the execution of the document before the Registrar. He simply said that he had sold.575 hectares of land and in the sale-deed.804 hectares of land is mentioned. It is clear from the said endorsement that the plaintiff himself admitted before the Registrar that he had sold.575 hectares of land. The sale-deed has been proved valid by the appellate Court itself. In pursuance of the sale-deed, the possession was also delivered to the defendant. In these circumstances, it cannot be said that the sale-deed is invalid. The appellate Court has relied on a decision reported in AIR 1938 38 (Privy Council) and others, in the said decision their Lordships have only observed that if there is an endorsement that some different amount was paid in the sale-deed by the Registrar, the proper course would be to re-execute the deed with the modification and further the sale-deed, which was executed by the parties, was held to be valid one by holding as under:- It so happens however that the High Court at Allahabad have decided that in the circumstances of the case the conditions added by the appellant at the time or registration were admissible in evidence and binding on the done. In coming to this conclusion no doubt they were to some extent influenced by the fact that her signature is above the endorsement and that one of the witnesses was her son Iftikhar Wali Khan, the guardian for the infant donee, who apparently made no protest or no effective protest as regards the statement made by the appellant. However, that may be, the respondents to the present appeal do not seek to disturb the view of the High Court at Allahabad on that point and are content that it should be taken that the deed operates as if the Rs. 300 were substituted for the Rs. 250 and as if the appellant was entitled to the grain and fuel which is referred to in the Sub-Registrar's record of what the appellant was claiming at the time of the registration. In these circumstances it does not seem necessary to their Lordships to express an opinion upon this part of the case. A Full Bench of Rajasthan High Court in the case of Ramdayal and Others Vs. Bhanwarlal and Others, considering the non-compliance of Section 35 of the Registration Act has held as under:- Non-compliance with Section 35, such as by not appearing personally before the registering Officer, is only a procedural defect and does not vitiate the registration of a document. In a decision reported in AIR 1929 PC, 27, Ma Pwa May and another vs. S.R.M.M.A. Chettiar Firm, it has been held that if the mistake is an error in procedure, it is cured by Section 87 of the Registration Act and it is further held as under:- In seeking to apply Section 87 it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction, where the registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time, Section 87 is inoperative. On the other hand, if the registrar having jurisdiction has made a mistake in the exercise of it. Section 87 takes effect. In 2001 SCC 434 the Supreme Court has held that there is a presumption of correctness of the endorsement made by the Sub-Registrar under Sub-section (58) of the Registration Act. It can be rebutted only strong evidence to the contrary. Section 87 takes effect. In 2001 SCC 434 the Supreme Court has held that there is a presumption of correctness of the endorsement made by the Sub-Registrar under Sub-section (58) of the Registration Act. It can be rebutted only strong evidence to the contrary. On the basis of above principle of law, it is clear that the plaintiff himself admitted before the Registrar that he sold.575 hectares of land and the sale-deed was held to be valid one. The possession was also delivered in pursuance to the said sale-deed to the defendant and the plaintiff did not examine his thumb impression marked on the sale-deed by any expert in this regard. Hence, the finding of the lower appellate Court that the whole registry (Ex.D-2) is invalid, is perverse and against the law. The Hon'ble Supreme Court in Yadarao Dajiba Shrawane (dead) by Lrs. Vs. Nanilal Harakchand Shah (dead) and Others, , has held as under:- Code of Code of Civil Procedure, 1908, Section 100 - Second appeal interference with judgment of final Court of fact - When justified - Reiterated that if such judgment is based on misinterpretation of documentary evidence or consideration of inadmissible evidence or ignoring material evidence, or on a finding of fact has ignored admissions or concessions made by witnesses or parties, held High Court can interfere in Second Appeal. On the basis of above findings, I answer the question of law that on the basis of the reasoning given by the first appellate Court, the registration of sale-deed (Ex.D-2) cannot be held to be invalid but it is valid only up to.575 hectares of land. With regard to second question of law, I hold that there are pleadings with regard to execution of the sale-deed by the plaintiffs. On the basis of the above findings, facts and circumstances of the case and analysis of the law, the appeal of the appellant is allowed to the extent of.575 hectares of land and the judgment and decree of both the Courts below is set aside to this extent only. It is held that the defendant will get the title of the land only to.575 hectares and with regard to remaining part, the judgment and decree of both the Courts is confirmed. Parties to bear their own costs. Final Result : Allowed.