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2015 DIGILAW 147 (GAU)

Premananda Baruah v. Ajit Phukan

2015-02-09

NISHITENDU CHAUDHURY

body2015
JUDGMENT: Nishitendu Chaudhury, J. 1. This appeal has been preferred by the plaintiff challenging the judgment and decree dated 02.05.2003 passed by the learned Additional District Judge (Ad-hoc), at Jorhat, dismissing the suit of the plaintiff in totality on the ground that the Exhibit-1 (document of title) on the basis of which the present appellant/plaintiff claimed to have purchased the suit land was not a valid one being hit by Section 29 of the Registration Act, 1908. The present appellant as plaintiff instituted Title Suit No. 99 of 2000 in the Court of learned Civil Judge (Senior Division) Jorhat on 14.12.2000 stating that one Smt. Aikon Barua being absolute owner of the suit land measuring 5 Bigha 3 Katha 18 Lechas, sold the same jointly to the plaintiff Premananda Baruah and his brother Durga Prasad Boruah by registered Sale Deed No. 4391 dated 24.06.1980. In the sale deed it was specifically mentioned that Premananda Baruah would get 3/4th (three-fourth) of the suit land and Durga Prasad Baruah who is the defendant No. 2 herein got 1/4th (one-fourth) of the said land. According to this calculation, the defendant No. 2 Durga Prasad Boruah gets only 7 Katha 5 Lechas of land where as plaintiff got 4 Bigha 1 Katha 13 Lechas of land. It is the case of the plaintiff that he entered into an agreement with one Ajit Phukan in the year 1995 permitting him to cultivate the land for one year and to hand over the same land to him after the month of December 1995 with further condition that defendant No. 1 would pay Rs. 1,500/- to him as rent, whereas the defendant paid only Rs. 400/-. Ajit Phukan not only failed to make payment of the balance sum but also dispossessed him with respect to 2 Bigha of the suit land in the year 1996. Aggrieved, the appellant/plaintiff immediately filed complaint case against the defendant No. 1 on 19.06.1996, 12.08.1996, 14.08.1996 & 19.09.1996 but as the matter was not disposed of, the defendant No. 1 got an opportunity against him. However, on 20.09.1996, the land was attached by the Sub-divisional Magistrate, Jorhat. Aggrieved, the appellant/plaintiff immediately filed complaint case against the defendant No. 1 on 19.06.1996, 12.08.1996, 14.08.1996 & 19.09.1996 but as the matter was not disposed of, the defendant No. 1 got an opportunity against him. However, on 20.09.1996, the land was attached by the Sub-divisional Magistrate, Jorhat. With these averments of facts, the plaintiff claimed for a decree for declaring his right, title and interest in respect of 3/4th (three-fourth) share of his land in 5 Bigha 3 Kama 18 Lechas and also for confirmation of possession and recovery of possession of the suit land. 2. Although notices were duly served upon the defendants but they chose not to appear in the case and so, the suit proceeded ex parte against all the defendants. The plaintiff examined himself and one Pobindra Kumar Das as P.W. 2. This P.W. 2 being an employee in the office of Sub-Registrar, Guwahati, proved volume of the aforesaid Sale Deed No. 4391 of 1980 and deposed that the Sale Deed had been duly registered. The suit land is situated at Jorhat and the Sale Deed was executed by Registrar at Guwahati. On this ground the learned trial court held that the plaintiff did not acquire any right, title and interest to the suit land on the basis of Exhibit-1 Sale Deed dated 24.06.1980. The learned trial court placed reliance on Section 29 of the Registration Act which requires that a sale deed should be registered within the jurisdiction of the same district where the suit land is situated. The judgment and decree dismissing the suit was passed on 02.05.2003 and it is against this judgment and decree the present First Appeal has been preferred by the plaintiff. 3. The learned counsel for the appellant is heard. None appears for the learned counsel for the respondents although notices were duly served upon them. Having so found the appeal is taken up for ex-parte hearing against the respondents as service on the respondents is complete. 4. The sole ground on which the suit of the plaintiff was dismissed was violation of the provision of Section 29 of the Registration Act, 1908. Having so found the appeal is taken up for ex-parte hearing against the respondents as service on the respondents is complete. 4. The sole ground on which the suit of the plaintiff was dismissed was violation of the provision of Section 29 of the Registration Act, 1908. It provides that every document not being a document referred to in Section 28 or a copy of a decree or order, may be presented for registration either in the office of Sub-Registrar in whose Sub-District the document was executed or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the decree or order desires the same to be registered. Here in this case the suit land is situated in the district of Jorhat and Sale Deed was executed in the year 1980 in the Sub-Registrar of Guwahati. Section 29 of the Registration Act does not place an absolute embargo against the registration of the Sale Deed outside the district. If both the parties to a document or seeking and claiming under the documents desire to get it registered elsewhere, there is no bar in registering a document before any registry other than the one in whose jurisdiction the land is situated. What is intriguing in the case in hand is that in deciding the title suit, the learned trial court does not appear to have considered the provision of Section 54 of the Transfer of Property Act as amended by its Assam Amendment. Section 54 of the TP Act requires that a transfer of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument by an amendment made vide Assam Act, 10 of 1976 it has been provided that the figures and expressions "by an instrument registered in the State of Assam, notwithstanding anything contained in the Indian Registration Act, 1908 (XVI of 1908) to the contrary" would be substituted. This means that while Registration Act normally requires a document to be registered in the office of Sub-Registrar in whose Sub-District the document was executed or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the decree desired the same to be registered by Assam Amendment. This means that while Registration Act normally requires a document to be registered in the office of Sub-Registrar in whose Sub-District the document was executed or in the office of any other Sub-Registrar under the State Government at which all the persons executing and claiming under the decree desired the same to be registered by Assam Amendment. Thus, because of Assam Amendment of Section 54 of the T.P. Act, the Second part of the Section 29 of the Registration has been diluted. In view of the non-obstinate clause in amended Section 54 of T.P. Act, any provision of the Indian Registration Act would not affect the validity of the sale made, provided the document is registered in the State of Assam. So, by this Assam Amendment two changes have been brought out. First, if the sale deed is registered in the State of Assam the same would be lawful, no matter whether the sale deed is registered in the Registry under territorial jurisdiction of which the demised land is situated. Secondly, by the amended provision of Section 54 of the T.P. Act, by Assam Amendment Act No. 10/1976, the requirement of registering an instrument same district where the property is situated has been diluted. What is required is that if the instrument is registered in the State of Assam, it will be substantive compliance of Section 54 of the Transfer of Property Act because of the non-obstinate clause. In view of the present non-obstinate clause even requirement under Section 29 of registering an instrument in the same district, where the property is situated, has become inapplicable to the State of Assam. The learned trial court has failed to take into consideration the provision of Assam Act, 10 of 1976 and more particularly Section 2 thereof. This being the position, the impugned decree and judgment has become vitiated. Consequently, the appeal stands allowed. The impugned judgment and decree is hereby set aside. 5. The case is remanded to the learned trial court for deciding the question of title and other grievances of the plaintiff as ventilated in the plaint. Since, it is the case of year 2000 the learned trial court shall take care for expeditious disposal of the suit. The suit shall be decided preferably within six months from the date of receipt of record from this Court. Since, it is the case of year 2000 the learned trial court shall take care for expeditious disposal of the suit. The suit shall be decided preferably within six months from the date of receipt of record from this Court. After receipt of the records learned court shall issue notice to the defendants again and then proceed with the case in accordance with law. No order as to cost.