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2013 DIGILAW 169 (KER)

BIJU M. A. v. SUB-REGISTRAR

2013-02-27

P.R.RAMACHANDRA MENON

body2013
JUDGMENT : P.R. Ramachandra Menon, J. The grievance of the petitioner is with regard to the refusal to register the original of Ext. P1 document by the respondent referring to the difference in the 'nature' of the land concerned as described in the document sought to be registered, showing it as a reclaimed land; whereas in the Basic Register of the Sub Registry, wherein the land comprised in Resurvey Nos. 165/11/2/2 & 165/9/2/2 and 1.61 areas in Re-sy. No. 165/2/3, 165/10/3, 165/9/4/1 has been shown as 'Nilam'. The reason for refusal has been put into writing and conveyed to petitioner on 14/02/2013 vide Ext. P5. The contention of the petitioner is that, the property is actually lying as 'reclaimed land' and the petitioner is enjoying the same with all the improvements thereon, including a building situated in the property and this in turn has been sought to be conveyed as per Ext. P1 it is stated that, the nature of the property can never be a reason for refusing the registration, more so, in view of the mandate u/s 71 of the Registration Act, read with Rules 190/191 of the Rules there under. 2. The stand taken by the respondents is sought to be sustained by the learned Government Pleader, pointing out that, the property is actually a 'Nilam' as discernible from Ext. P2 tax receipt Bearing No. 16/3568 dated 25/01/2013 produced by the petitioner himself. The learned Government Pleader further submits that, in Ext. P1 document itself, it is stated in paragraph 4' and elsewhere, that the property is lying as a 'reclaimed land'. Reliance is also sought to be placed on Rules 36 and 37 of the Registration Rules, Kerala, contending that, it is a valid reason for refusing the registration. Rules 36 and 37 are extracted below: 36. (i) A document which relates to land shall, before it is accepted for registration, be checked with the survey numbers and sub-divisions in the subsidiary indexes maintained under Rule 149 and also, when necessary, with the Settlement Registers in order that the Registering Officer may cause incorrect or fictitious numbers entered in the document to be rectified. (i) A document which relates to land shall, before it is accepted for registration, be checked with the survey numbers and sub-divisions in the subsidiary indexes maintained under Rule 149 and also, when necessary, with the Settlement Registers in order that the Registering Officer may cause incorrect or fictitious numbers entered in the document to be rectified. (ii) If a survey number or a sub-division number entered in a document is not found in the subsidiary indexes or Settlement Registers, the Registering Officer shall, if necessary, make a reference to the Revenue Department (iii) If the sub-divisions of a field are found in the subsidiary indexes or Settlement Registers and the field is described in the document without reference to any sub-division the document may be returned for rectification. 37. (i) If there are no impediments such as those mentioned above to the acceptance of a document for registration or if the document is presented again after any such impediments have been removed, the Registering Officer shall endorse on the document the date, the hour and minute, the place of presentation and the fees realised and take the signature of the presenting party to such endorsement. (ii) If however, any of the impediments referred to above is discovered after the presentation endorsement has been made on the document the document may be returned for correction or amendment, if the party so desires, with an endorsement to that effect. Should the document be presented again, a representation endorsement shall be made. 3. Even a plain reading of the Rules will convey a clear idea that the Rule is only in respect of the defect, if at all any, in survey number and sub-divisions. It is with reference to the said defect if any, that a scrutiny with reference to 'Settlement Registers' or such other records is stated as possible, so as to ascertain whether any 'incorrect or fictitious number" has been entered in the document, to be rectified before registration. Rule 37 starts with the words "If there are no impediments such as those mentioned above.....". No other provision is brought to the notice of this Court so as to enable the respondents to refuse registration with reference to the 'nature' of the land involved. 4. Rule 37 starts with the words "If there are no impediments such as those mentioned above.....". No other provision is brought to the notice of this Court so as to enable the respondents to refuse registration with reference to the 'nature' of the land involved. 4. On the other hand, the learned counsel for the petitioner makes a reference to Section 71 of the Registration Act and Rules 190 and 191 of the Rules in support of the claim. The specific circumstances under which, the refusal of registration can be effected are discernible from Rule 191. This Court finds that, in the absence of any specific provision to refuse registration with reference to the 'nature of the land', more so when requisite care and caution to be taken by the registering authority, is stipulated with reference to the survey numbers and sub-divisions as given under Rules 36 and 37, it is clear that the 'nature' of the land cannot be a valid reason to refuse registration. It is always open for the petitioner to apply before the Revenue Authorities to cause necessary corrections in the Revenue records as to the actual classification of the land. As such, the description of the property in the Revenue records cannot be the basis to ascertain the physical nature, in view of the law declared by this Court in Shahanaz Shukkoor Vs. Chelannur Grama Panchayat, and Praveen Vs. Land Revenue Commissioner, In the above circumstances, this Court finds that the petitioner is entitled to succeed. Ext P5 is set aside. The respondent is directed to cause the original of Ext. P1 to be registered as and when the same is presented, subject to satisfaction of the necessary requirements in tune with the Registration Act/Rules, such as the payment of fees etc., notwithstanding the 'nature' of the land as shown in the Basic Register maintained by the respondent Writ Petition is allowed to the said extent. No cost. Allowed.