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2014 DIGILAW 3002 (ALL)

MAHBOOB ALI v. ABDUL AZIZ

2014-09-25

DINESH GUPTA

body2014
JUDGMENT Hon’ble Dinesh Gupta, J.—This second appeal is preferred against the judgment dated 7.5.1984 passed by 1st Additional District Judge, Saharanpur in Civil Appeal No. 254 of 1981 arising out of judgment dated 23.9.81 passed by 7th Additional Munsif, Saharanpur in O.S. No. 585 of 1970. 2. The brief facts which give rise to this appeal are that : The plaintiff respondent, hereinafter called ‘’the respondent’ filed a suit against the defendant-appellant, hereinafter called ‘’the appellant’ for the relief of cancellation of sale-deed dated 20.12.1968. As per the allegations contained in the plaint respondent, Abdul Aziz and another filed suit for cancellation of sale-deed with the allegation that the defendant Walidad Khan was the owner in possession over the property situated in Khasra No. 498 area 3 bigha, 3 biswa 10 biswancies. The said khasra was divided in two numbers 498 A and 498 B. The respondent purchased the said land vide sale-deed dated 16.12.1968. 3. After the execution of the above said sale-deed the appellant No. 2 did not get the sale-deed registered and ultimately the sale-deed was presented for registration on 14.3.1969, before sub Registrar, Saharanur. The defendant No. 2 denied the execution and then the respondents were compelled to file the application before the registrar for compulsory registration and the District Registrar, Saharanpur vide its order dated 18.7.1970 directed the sub Registrar to register the sale-deed. 4. After registration of the sale-deed when the respondent tried to move an application for mutation of their names they came to know that the defendant No. 2 illegally and without any right executed another sale-deed on 20.12.1968 in favour of defendant No. 1. 5. Legally the defendant No. 2, was not owner of the property on 20.12.1968 and he has no right to execute the sale-deed and illegally the plaintiff became the owner of the property vide sale-deed dated 16.12.1968. The plaintiff so many times asked the defendant to get the sale-deed cancelled. On refusal to do so the plaintiff was left with no option but to file the suit. 6. The suit was contested by defendant No. 1 where they denied all the allegations made in the plaint and submitted that defendant No. 2 never executed any sale-deed in favour of the plaintiffs. On refusal to do so the plaintiff was left with no option but to file the suit. 6. The suit was contested by defendant No. 1 where they denied all the allegations made in the plaint and submitted that defendant No. 2 never executed any sale-deed in favour of the plaintiffs. On the contrary the real facts are that the defendant No. 2 already sold the land in favor of the defendant No. 1, vide registered sale-deed dated 20.12.1968 and the name of the defendant No. 1 was entered in the revenue records. Later on with the collusion of defendant No. 2 the plaintiff got the sale-deed registered in their names in order to defeat the right of the defendant No. 1. The defendant No. 2 also filed written submission and denied all the allegations made in the plaint. 7. In the additional pleas the defendant admitted that he was owner of the property in dispute and it was agreed between the plaintiff and the defendant No. 2 regarding the execution of sale-deed in respect of the Khasra No. 498 A and 498 B for consideration of Rs.2000/-. However, the plaintiff by playing fraud included the other property of the defendant No. 2 in the said document and when the document was read over to the defendant he refused to get the document registered. Thereafter, the defendant has no information regarding the compulsory registration of the document. The plaintiff filed the replication also and reiterated the contents of the plaint. After considering the evidence and the pleadings of the parties the trial Court decreed the suit of the plaintiff vide order dated 24.1.1978 and the sale-deed dated 20.12.1968 was cancelled. 8. Feeling aggrieved the defendant No. 2 preferred civil appeal which was registered as Civil Appeal No. 254 of 1981 and the same was transferred to the Court of First Additional District Judge who also dismissed the appeal vide its judgment dated 7.5.1984. Feeling aggrieved, the defendant No. 1 preferred this appeal. While admitting the appeal the Court framed the following substantial questions of law: (a) Whether the sale-deed registered after initiating proceedings under Section 73 would take effect from the date of its presentation to the Sub-Registrar as provided under Section 75(3) of the Registration Act or from the date of its execution in view of the privisions of Section 47 of the Registration Act? (b) Whether the suit is maintainable in the Civil Court when admittedly the defendant was in possession of his name was mutated in the Revenue Papers? (c) Whether on the facts of the case provisions of Section 41 of the Transfer of Property Act are attractive or not? Notices were issued to the respondent and record was requisitioned. 9. Heard learned counsel for the appellant, Sri Sanjai Kumar Om and learned counsel for the respondent, Sri Sharad Sharma, holding brief of Sri Vikrant Pandey. The counsel for the appellant submitted that the sale-deed in favour of the respondent dated 16.12.1968 having been registered after initiating proceedings under Section 73 of the Registration Act. By means of an application dated 14.3.1969 it would take effect from the date of its presentation to the sub Registrar in view of the provisions of Section 75(3) of the Registration Act. 10. The view of the Court below that the sale-deed in favour of the respondent would be effective from the date of its execution is manifestly illegal and against the legal provisions. That the sale-deed executed in favour of the appellant having been executed and registered on 20.12.1968 it would prevail over the sale-deed in favour of the respondent and the latter would have no right or title to the property. 11. The admitted case of the parties is that the possession of the disputed plots were never given to the respondent. On the contrary the appellant entered into possession of the same on the date of execution of the sale-deed. The respondent had no claim over these plots. Admittedly, the possession of the property was with the appellant whose name was mutated in the revenue record after the execution of the sale-deed. The suit was not maintainable in the Civil Court and was cognizable by the revenue Court. The appellant was bona fide purchaser of property and was entitled to the protection of Section 41 of the T.P. Act. 12. The suit was not maintainable in the Civil Court and was cognizable by the revenue Court. The appellant was bona fide purchaser of property and was entitled to the protection of Section 41 of the T.P. Act. 12. The counsel further submitted that admittedly on 16.12.1968 the sale-deed was not registered, it was only on 14.3.1969 when the sale-deed was first time presented before the Registrar and when the execution is denied then the respondent filed application under Section 73 of the Registration Act and the Registrar finally allowed the application and directed the sub Registrar to register the sale-deed, therefore, date of registration would be 14.3.1969 and prior to that date the sale-deed was already executed and registered in favour of the appellant on 20.12.1968. The findings of both the Courts below that the registration of the document will relate back to the date of execution is against the provisions of law. 13. The counsel for the appellant drew my attention towards the provisions of Section 75(3) of the Registration Act. The counsel further submitted that both the Courts below have wrongly relied upon Section 47 of the Registration Act which has no application in the present case. The counsel further submitted that in view of the legal position the sale-deed executed in favour of the respondent was registered later on and will not relate back to the date of its execution and before the registration there was sale-deed registered and executed in favor of the appellant and will prevail over the sale-deed executed in favour of the respondent. The counsel further submitted that the appeal deserves to be allowed and judgment of both the Courts below deserves to be set aside and the suit of the respondent deserves to be dismissed throughout. The counsel for the respondent submitted that both the Courts below having relied upon Section 47 of the Registration Act concurrently held that the registration will relate back to the date of its execution to the document which required registration. 14. The provisions of Section 47 of the Registration Act are quite clear in this regard. The appellant has tried to confuse the provisions of Section 75(3) Registration Act, which has no application in the present case. The counsel further submitted that there are concurrent findings recorded by both the Courts below and does not require any scrutiny or reconsideration and appeal deserves to be dismissed. The appellant has tried to confuse the provisions of Section 75(3) Registration Act, which has no application in the present case. The counsel further submitted that there are concurrent findings recorded by both the Courts below and does not require any scrutiny or reconsideration and appeal deserves to be dismissed. 15. I am unable to accept the contention raised by learned counsel for the appellant. Before going into the merit of the case certain provisions of Registration Act are necessary to be mentioned. PART IV : OF THE TIME OF PRESENTATION : 23. Time for presenting documents— Subject to the provisions contained in Sections 24,25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy of a decree or order may be presented within four months from the day on which the decree or order was made, or, where it is appealable, within four months from the day on which it becomes final PART X : OF THE EFFECTS OF REGISTRATION AND NON-REGISTRATION 47. Time from which registered document operates A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. PART XII : OF REFUSAL TO REGISTER 71. Reasons for refusal to register to be recorded (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. 73. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. 73. Application to Registrar where Sub-Registrar refuses to register on ground of denial of execution (1) When a Sub-Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assignee or agent authorised as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub-Registrar is subordinate in order to establish his right to have the document registered. (2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under Section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints. 74. Procedure of Registrar on such application In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquired- (a) whether the document has been executed; (b) whether the requirements of the 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. 75. Order by Registrar to register and procedure thereon (1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered. (2) If the document is duly presented for registering within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60. (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration. (4) The Registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908. In the light of the above provisions of Registration Act the Court has to consider the rival submissions by the parties. The only and main contention between the parties relates to the execution and registration of sale-deed dated 16.12.1968. 16. Another sale-deed which was executed in favour of the appellant dated 20.12.1968 and registered on the same date while the sale-deed executed on 16.12.1968 was first time presented for registration before the sub Registrar on 14.3.1968 and was registered on the basis of the order of the District Registrar on 18.7.1970. 17. The counsel for the appellant tried to convince this Court that since the document was first presented before the sub Registrar on 14.3.1969 and in view of the Section 75(3) Registration Act the registration will take effect from the date of its first presentation. Since the sale-deed in favor of the appellant was executed and registered earlier then the sale-deed in favor of the appellant will prevail over the sale-deed executed in favour of the respondent. The submission of the appellant has no force. 18. Section 75 only deals with the registration of the document. Registered after the order of the District Registrar passed on application preferred before him under Section 73 of Registration Act. On a bare reading of Section 75(3) of Registration Act it clearly states that the registration shall take effect from the date when it was first presented before the sub Registrar. If the said Section is read with Section 47 of the Registration Act it will be clear that the registration of the document will always relate back to the date of its exclusion. If the said Section is read with Section 47 of the Registration Act it will be clear that the registration of the document will always relate back to the date of its exclusion. The provision of Section 47 of the Act in this regard are very clear that when a document was executed and registered later on then the registration will relate back to the date of execution. 19. The law is very clear in this regard and has been upheld by this Court as well as by Apex Court in Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73 : 1994 SCC (6) 591. In that case a lease deed was executed and registered after four months. The Apex Court held that the deed will take effect from its execution. Relying upon Section 47 of the Registration Act, the Apex Court held that a registered document will operate from the time it would commence to operate. If no registration is required or made and not from the time of its registration it is well established that the document so long is not registered is not valid yet once it is registered it take effect from the date of its execution. Relian was placed upon other cases in Ram Saran Lall v. Mst. Domini Kuer, AIR 1961 SC 1747 , and in Nanda Ballabh Gururani v. Smt Maqbool Begum, (1980) 3 SCC 346 . 20. Similarly in the case decided by Division Bench of this Court in Gyatri Prasad v. Board of Revenue, 1973 AWR 606 : 1973 RD 354, dealing with the Section 47 of the Registration Act, this Court held that in the present case where not only a sale-deed was executed but the same was also registered under Section 47 of the Registration Act the sale-deed will operate to transfer title with effect from the date on which it was executed. 21. Similar view was taken by this Court in Smt. Rani Saxena v. 4th Additional District Judge, 1988 ALJ 1258. Para 5 of the said authority is quoted below: “Section 47 of the Registration Act,1908 specifically provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. This section, is therefore, specific. Para 5 of the said authority is quoted below: “Section 47 of the Registration Act,1908 specifically provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. This section, is therefore, specific. In view of this specific section of the Registration Act, it is cleear that the date on which the document was executed, has to be taken as the date from which it shall operate, though it might have been registered subsequently. This view of mine finds support from the decision by the Hon’ble Supreme Court in the case of Nanda Ballabh Gururani v. Smt Maqbool Begum,1981 All Ren Cas 516. 22. This view also found support from the case law in Himnchal Singh v. Ram Autar Singh, 1981 AWC 801 . The Court held in para 19 as under: “Chapter XII of the Registration Act relates to refusal to register. A document is compulsorily registered under this Chapter, if the transferor does not come up to get it registered. Section 74 indicates the procedure to be followed by the Registrar. It empowers the Registrar to enquire whether the document had been executed. In case he finds that document was executed and all the legal formalities had been complied with, he shall direct the document to be registered (vide Section 75)1). Sub-section (3) of Section 75 reads as follows : “Such registration shall take effect as if the document had been registered when it was first duly presented for registration”. The above sub-section makes the compulsory registration effective from the date the document was first presented for registration. This sub-section does not say from which date the document having been compulsorily registered would be effective or operative. Thus this section has absolutely no relationship/connection with Section 47. There is no provision in the Registration Act which makes Section 47 subject to Section 75. Section 47 is quite general and relates to the documents which are got voluntarily registered by a transferor as well as to the documents which are compulsorily registered by the Registrar under Section 75(1). It is thus apparent from the scheme of the Act that the view taken by the Patna High Court in the case of Bibi Zamirunnisa is not correct.” 23. It is thus apparent from the scheme of the Act that the view taken by the Patna High Court in the case of Bibi Zamirunnisa is not correct.” 23. The fact of this case is also similar to the case in hand. In this case one Ram Diler executed a sale-deed in favour of Gayatri Prasad on 4.4.1965. When the vender refused to get it registered the vendee applied for compulsory registration and the sale-deed was registered on 24.5.1965. In the mean time on 10.6.1965 the vender executed another sale-deed in favour of Smt. Jagwanti and got it registered on the same day. The mutation proceedings were decided against Gayatri Prasad then the Gayatri Prasad brought a suit for declaration and possession. The suit was decreed because the sale-deed in his favour was effective from before the sale-deed in favour of Smt. Jagwanti. 24. Considering the legal position and the provisions of the law the view taken by both the Courts below is fully justified and legal and there appears to be no reason to interfere with the findings recorded by both the Courts below which are concurrent in nature. The appeal deserves to be dismissed. Substantial questions of law are answered accordingly. ——————