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2006 DIGILAW 1100 (GAU)

Safiquddin Mazumdar v. Alimuddin Barlaskar

2006-12-12

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. Both these appeals register a challenge to the judgment and order dated 29.07.2000 passed by the learned District Judge, Hailakandi, in Title Appeal 5/2000 decreeing the suit of the Respondents/Plaintiffs. As the appeals involve same set of facts and have raised identical legal issues, those were heard analogously and are disposed of by this common decision. 2. I have heard Mr. BK Goswami, Sr. Advocate, assisted by Ms. T. Goswami, for the Appellants in 193/2000. The Respondents in both the appeals have remained un-represented though the names of their learned Counsels had been duly reflected in the cause list. None appears for the Appellants in RSA 194/2000 either. 3. Filtering out the unnecessary details, the pleaded case of the parties have to be necessarily outlined at the threshold. While narrating the facts, for the sake of convenience, the parties in RSA 193/2000 would be referred to. The Respondents 1 to 6 instituted a suit against the Appellants and Respondents 7, 8, 9, 10 and 11 in the Court of the Civil Judge (Sr. Division), Hailakandi, being Title Suit No. 70/1992 praying for a decree inter alia for a declaration that the sale deed dated 26.08.1991 executed by the Respondent No. 7 in favour of the Appellants and Ors. to be illegal, null and void and for a direction to the Respondents 7 to get the sale deed dated 08.01.1991 executed in favour of the Respondents 1 to 6 registered and an order to the Respondents 8 and 9 to issue the " no objection certificate" for the registration of the said sale deed. According to the Respondents 1 to 6/Plaintiffs, the suit land was originally Government requisitioned land allotted to one Mohima Ranjan De, the father of Respondent No. 7. As he was not a cultivator, the Respondent No. 6 was allowed to cultivate the same. In the meantime, a periodic patta was issued by the Government for the said land. In course of time, the Respondent No. 6 having intended to purchase the land and the Respondent No. 7 having agreed to do so, the sale deed dated 08.01.1991 was executed by the Respondent No. 7 on receipt of a consideration of Rs. 8,000/-. Thereafter the Respondent No. 7 submitted an application before the Respondents 8 and 9 for "no objection certificate" for the registration of the said document. 8,000/-. Thereafter the Respondent No. 7 submitted an application before the Respondents 8 and 9 for "no objection certificate" for the registration of the said document. According to the Plaintiffs, the Respondent No. 7 subsequent thereto became lukewarm in the matter and with an intent to cheat and defraud the Plaintiffs contrived to sale the suit land in favour of the Appellants. The Respondent No. 6 in the said circumstances submitted the sale deed before the Respondent No. 10 who was the Sub-Registrar, Hailakandi, for registration thereof but the said authority refused to oblige in absence of the no objection certificate. The statutory period for registration of the sale deed therefore lapsed. The Plaintiffs' further alleged that the Respondents 8 and 9 also delayed the process by raising objections and eventually refused to issue the "no objection certificate" for which the sale deed could not be registered. 4. The Respondent No. 7 taking advantage of the delay executed a sale deed dated 26.08.1991 in favour of the Appellants and Ors. on 26.08.1991 and also got it registered on the very same date. According to the Plaintiffs, a complaint lodged with the learned Chief Judicial Magistrate, Hailakandi, to the above effect also remained un-Respondent. It was thereafter on serving a notice under Section 80 Code of Civil Procedure (hereafter referred to as the Code) on the official Respondents, the suit was filed. 5. In his written statement, the Respondent No. 7 inter alia contended that the suit was barred under the Assam Alienation of Land (Regulation) Act, 1982, (hereafter referred to as the Alienation Act) as the order passed by the Collector thereunder could not be questioned in any Civil or Criminal Court. The official Defendants pleaded that two applications were received simultaneously in respect of the suit land, bearing the signatures of the Respondent No. 7 as the vendor. While in one of such applications the Plaintiffs were the vendees in the other, the Appellants and two Ors. were described as such. According to them, following an enquiry, it appeared that the signature of the Respondent No. 7 on the application for no objection certificate for sale in favour of the Plaintiffs was not genuine and, therefore, the prayer therefore was rejected. 6. were described as such. According to them, following an enquiry, it appeared that the signature of the Respondent No. 7 on the application for no objection certificate for sale in favour of the Plaintiffs was not genuine and, therefore, the prayer therefore was rejected. 6. The Appellants in whose favour the sale deed dated 20.06.1981 has been executed averred that the suit land had been in occupation of their predecessor in interest Kalachand Mazumdar, the same having been allotted to him by Mohima Ranjan De, the father of the Respondent No. 7. After the death of Mohima Ranjan De, the Respondent No. 7 did not disturb his possession and eventually the former agreed to sale the same to them at a price of Rs. 30,000/-. The no objection certificate for the said transaction having been obtained from the competent authority, the said deed was executed on 20.06.1981 in favour of the Appellants and two Ors.. The answering Defendants asserted that they have been in possession of the suit land and alleged that the sale deed dated 08.01.1991 was a false and collusive one. 7. On the basis of the pleadings, the learned trial Court framed issues. Both the parties adduced oral as well as documentary evidence and the learned trial Court by its verdict decreed the suit. The present Appellants preferred an appeal before the learned Court below and the Respondent No. 7 independently preferred an appeal against the decision of the learned trial Court as well. Both the appeals have been dismissed affirming the determinations of the learned trial Court. 8. This Court while admitting the appeals had framed the following substantial questions of law. RSA 193/2000 1. Whether the learned Courts below were justified in declaring the sale deed dated 26.08.1991 (exhibit 2) in favour of the Defendants No. 2 to 10 without any pleadings, evidence or findings of the Courts regarding the ingredients of void on voidabilities of Exhibit No. 2 ? 2. Whether the learned Courts below were right in constructing the provisions of the Assam Alienation of Land (Regulation) Act, 1980 ? 3. Whether the learned Courts below had jurisdiction to direct the registration of the document by the Sub-Registrar in contravention of the various provisions of the Registration Act ? 4. Whether the Civil Court can issue direction to the Deputy Commissioner and Sub-Deputy Collector to grant permission by way of writ of mandamus? 3. Whether the learned Courts below had jurisdiction to direct the registration of the document by the Sub-Registrar in contravention of the various provisions of the Registration Act ? 4. Whether the Civil Court can issue direction to the Deputy Commissioner and Sub-Deputy Collector to grant permission by way of writ of mandamus? RSA194/2000 1. Whether the Civil Court has jurisdiction to direct the registration of a document which was never presented before the Sub-Registrar in accordance with the provision of Section 23 of the Registration Act and where there was no question of refusal to regular? 2. Whether the learned Courts below correctly interpreted the provisions of the Assam Alienation of Land (Regulation), Act, 1980? 3. Whether the suit was barred by Section 11 of the Assam Alienation of Land (Regulation) Act, 1980. 9. Mr. Goswami has urged that having regard to the pleaded case of the Plaintiffs/Respondents, the suit in the form presented with a prayer for specific performance of contract is not maintainable in law and on that count alone the impugned judgment and order is liable to be interfered with. According to him, the sale deed dated 08.01.1991 having been admittedly executed by the Respondent No. 7 on the receipt of the consideration price, the contract envisaged between the parties got executed. In that view of the matter, the prayer for specific performance thereof is wholly misconceived. Referring to various provisions of the Registration Act, 1908 (hereafter referred to as the Act), the learned Sr. Counsel has underlined that it being open for the vendor as well as the vendee in a given fact situation, to present the sale deed for registration thereunder, the failure on the part of the Respondent-Plaintiff, in whose custody the sale deed had remained at all relevant times, did not entitle them in any view of the matter to a direction to the registering authorities under the Act to register the same. With reference to Section 23 and 25 of the Act, the learned Sr. With reference to Section 23 and 25 of the Act, the learned Sr. Counsel has urged that in view of the time limit prescribed therein and the omission on the part of the Plaintiffs Respondents to take necessary steps for the presentation of the sale deed in accordance therewith, the learned Courts below erred on a substantial question of law in directing the Respondent No. 7 to complete the necessary formalities bearing on the registration of the sale document, the same being in patent contravention of the provisions of the Act. The Respondents/Plaintiffs having failed to avail the remedies prescribed by the Act, the suit for a direction to the Respondent No. 7 for registration of the document involved is not maintainable in law. The learned Sr. Counsel, however, in his usual fairness submitted that the provisions of the Alienation Act were not attracted to the facts of the case and that the same were unnecessarily referred to and acted upon for deciding the appeal by the learned Courts below. In all, the learned Sr. Counsel insisted that in the facts of the present case, no decree for registration of the sale document dated 08.01.1991 could have been passed, the same being not sanctioned by the provisions of the Act. The suit being conceptually not maintainable, the decree adjudging the sale deed dated 26.08.1991 executed by the Respondent No. 7 in favour of the Appellants to be null and void is on the face of the records ineffectual and non est in law. In support of his submissions Mr. Goswami has placed reliance on the decision of the Madras High Court in Sanga Thevar v. Thanukodi Ammal and Ors., AIR 1954 Mad 116 . 10. The arguments advanced have been duly appraised. The facts pertaining to the execution of the sale deed dated 08.01.1991 by the Respondent No. 7 in favour of the Respondents 1 to 6 on receipt of the consideration price are not in controversy. Exhibit 1 is the said sale deed. Though the sanction under the Alienation Act for registration was sought for, the same was declined as the concerned authorities following an enquiry envisaged under the Assam Alienation of Land Regulation Rules, 1980, (hereafter referred to as the Alienation Rules) were of the view that the related application had not been signed by the vendor, Respondent No. 7. Though the sanction under the Alienation Act for registration was sought for, the same was declined as the concerned authorities following an enquiry envisaged under the Assam Alienation of Land Regulation Rules, 1980, (hereafter referred to as the Alienation Rules) were of the view that the related application had not been signed by the vendor, Respondent No. 7. The sale deed dated 26.08.1991 executed by the Respondent No. 7 in favour of the Appellant and Ors. Exhibit 2, was registered after such sanction had been granted. 11. The evidence reveals that the sale deed dated 08.01.1991 was produced in Court from the custody of the Respondents/Plaintiffs. It is, therefore, apparent that following the execution of the said document, presumably pending the sanction to be obtained under the Alienation Act as was contemplated by the parties, the same had remained in the possession of the Respondents-Plaintiffs. 12. In view of the submissions made on behalf of the Appellants with regard to the non-applicability of the said Statute, no discussion on the provisions of the aforementioned legislation is called for. A bare reading of Section 3 thereof makes it obvious that the provisions of the Alienation Act are not attracted to the transaction involved. The requirement of sanction for the alienation contemplated in the sale deed dated 08.01.1991 was, therefore, not a legislative compulsion or an essential pre-condition for the validity thereof. 13. Section 23 of the Act mandates a period of four months for the presentation of a document specified therein for the purpose of registration thereof. The provision for relaxing the said period has been made in Section 25 of the Act subject to payment of fine to the extent indicated therein. Section 32 prescribes that the document to be registered could be presented at the appropriate registration office amongst Ors. by a person executing the same or claiming under him. The provisions under Part XII of the Act deal with the remedies available following refusal of registration of a document by the Sub-Registrar. 14. Noticeably under Section 32 of the Act, both the person executing a document or any one claiming under him can present it for registration. In a transaction of sale, therefore, logically both the vendor and the vendee are thus authorized in law to present the sale deed for registration. 14. Noticeably under Section 32 of the Act, both the person executing a document or any one claiming under him can present it for registration. In a transaction of sale, therefore, logically both the vendor and the vendee are thus authorized in law to present the sale deed for registration. It follows, therefore, that for the purpose of registration, neither of the parties to the transaction is normally required to be dependent on the other unless there is an agreement to that effect. This assumes importance in the background of the present case as the sale deed had remained in the custody of the Respondents Plaintiffs at all relevant times. This is also significant as they have alleged non-performance of the Respondent No. 7 vis-a-vis his omission to present the sale deed for registration. 15. In Sanga Thevar, (supra), the Defendant No. 1 in the suit had contracted to sell a certain house to the Plaintiff therein. The said Defendant, however, later on alienated the house to the Defendant No. 2. In the suit for specific performance of the contract, it having been noticed that the sale deed by the Defendant No. 1 in favour of the Plaintiff had in fact been effected but not registered, it was held that no further contract remained to be enforced in the suit and that it was open to the Plaintiff to seek enforcement of the registration of the document. The Plaintiff was on the above consideration, non-suited. 16. Having regard to the prescription of Section 32 of the Act as well as the admitted facts regarding execution of the sale deed dated 08.01.1991, I feel inclined to subscribe to the above view. It having been made optional on the part of the vendor as well as the vendee under the above legal provision to present a document (in this case a sale deed) for its registration, the suit for specific performance of contract in the attending facts and circumstances was misconceived. As the law permits presentation of documents including a sale deed for registration either by the vendor or the vendee, nothing further in law remained to be performed by the Respondent No. 7 in the instant case to complete the contract contemplated by the parties. As the law permits presentation of documents including a sale deed for registration either by the vendor or the vendee, nothing further in law remained to be performed by the Respondent No. 7 in the instant case to complete the contract contemplated by the parties. The registration of the sale deed though necessary to complete the transaction to convey' a valid title to the Respondents Plaintiffs, the omission on the part of the Respondent No. 7 in the facts of the present case to present the same before the registering authority cannot be construed to be an act of non-performance on his part vis-a-vis the contract. The suit instituted was in substance one for enforcement of the registration of a document, which had remained in possession of the Respondents Plaintiffs at all material times. On this consideration alone the suit has to be held as not maintainable in law. 17. The Act having prescribed a period of limitation for presentation of a document for the registration thereof with the ancillary provisions providing a flexibility thereto as well as the remedies available to an aggrieved party to a transaction, the direction to the Respondents No. 7 to get the sale deed dated 08.01.1991 registered after several years of its execution besides being in contravention of the express legal provision noticed hereinabove was not called for in the facts and circumstances of the case. 18. In the above view of the matter, the impugned judgment and order cannot be sustained and has to be interfered with. Ordered accordingly. 19. The reliefs prayed for in the suit bear a conspicuous omission inasmuch as though a decree for specific performance of the contract in the Specific Relief Act, 1963, (hereafter referred to as the 1963 Act) has been sought for, no prayer in the alternative for compensation has been made. Section 21(5) of the 1963 Act while prohibits grant of compensation unless claimed in the plaint, mandates the Court at any stage of the proceedings to allow the Plaintiff to avail the opportunity for including the claim for compensation. The compensation contemplated in the said provision, however, pre-supposes a breach of a contract by the Defendant, the specific performance whereof is not granted by the Court. In view of the determination as above, no breach of contract by the Respondent No. 7 is discernible. The compensation contemplated in the said provision, however, pre-supposes a breach of a contract by the Defendant, the specific performance whereof is not granted by the Court. In view of the determination as above, no breach of contract by the Respondent No. 7 is discernible. The relief for compensation as well following the rigour of the above legal provision cannot be granted either. All these notwithstanding, in view of the admitted fact that the Respondent No. 7 had executed the sale deed dated 08.01.1991 on receipt of a consideration price of Rs. 8,000/-, I am of the considered opinion that in equity, the Respondent Plaintiffs are entitled to a direction of refund of the said amount by the Respondent No. 7. It is, therefore, ordered that the Respondent No. 7 would refund a sum of Rs. 8,000/- to the Respondents Plaintiffs within a period of one month herefrom. This Court refrains from granting any interest in attending facts and circumstances. The appeals are allowed in the above terms. The impugned judgments and decree of the Courts below are set aside. No costs. 20. Let a decree be drawn up on the basis of this judgment and order. Appeal allowed