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2015 DIGILAW 398 (KAR)

Wasim Ur Rehaman v. State of Karnataka

2015-04-08

S.ABDUL NAZEER

body2015
ORDER : S. Abdul Nazeer, J. 1. The petitioner contends that he is the purchaser of a site bearing No. 32 carved out of Sy. No. 58 of Nagarabhavi Village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring East to West 40 ft. and North to South 44 ft. from Malla alias Mallaiah represented by his general power of attorney holder K. Nanjegowda under a deed of sale at Annexure-A, dated 10-6-1989. It appears that Malla alias Mallaiah represented by his general power of attorney holder C.R. Chandra sold the said site under a deed of sale dated 7-7-2006 in favour of the third respondent. Therefore, the petitioner filed a suit O.S. No. 6754 of 2007 on the file of the Additional City Civil Court, Bangalore City for a declaration that the sale deed dated 7-7-2006 is not binding on him. The suit was dismissed on 10-12-2009. The petitioner challenged the decree by filing an appeal in RFA No. 219 of 2010 before this Court. This Court allowed the appeal and set aside the judgment and decree by declaring that the right, if any, claimed by defendants 1 to 8, 9 and 11 in the suit (L.Rs. of Malla alias Mallaiah) in respect of the property in question based on the sale deed dated 7-7-2006 is not binding on the plaintiff/petitioner. The contention of the petitioner is that after the purchase of the property by the third respondent, an entry was made in the encumbrance certificate at Annexure-E showing the name of the third respondent in column (6). Therefore, the petitioner has filed this writ petition for a direction to the second respondent to delete the said entry. 2. I have heard the learned Counsel for the parties. 3. The contention of the learned Counsel for the petitioner is that petitioner has purchased the property in question under Annexure-A sale deed dated 10-6-1989 from Malla alias Mallaiah represented by his general power of attorney holder K. Nanjegowda. The third respondent purchased the same property from Malla alias Mallaiah represented by his general power of attorney holder C.R. Chandra on 7-7-2006. Since the petitioner had purchased the property much earlier to the date of purchase of the said property by the third respondent, the third respondent cannot get any right, title or interest in respect of the said property. Since the petitioner had purchased the property much earlier to the date of purchase of the said property by the third respondent, the third respondent cannot get any right, title or interest in respect of the said property. On the basis of the sale deed dated 7-7-2006, an entry was made in the encumbrance certificate showing that the third respondent is the purchaser of the property, which is erroneous. This entry needs to be deleted having regard to the declaratory decree granted by this Court in RFA No. 219 of 2010, dated 11-9-2012. 4. On the other hand, learned AGA appearing for respondents 1 and 2 submits that there is no provision in the Registration Act, 1908 ('Act' for short) or in the Karnataka Registration Rules, 1965 ('Rules' for short) for deletion/cancellation of an entry in the encumbrance certificate. At best, an additional entry can be made reflecting the declaratory decree passed by this Court having regard to Rule 123 of the Rules. 5. I have carefully considered the arguments of the learned Counsel made at the Bar and perused the materials placed on record. 6. It is evident from the materials on record that the petitioner had purchased the property under a deed of sale at Annexure-A, dated 10-6-1989 from Malla alias Mallaiah represented by his general power of attorney holder K. Nanjegowda. It is also clear that the third respondent purchased the same property under a deed of sale dated 7-7-2006 from Malla alias Mallaiah represented by his general power of attorney holder C.R. Chandra. That is why the petitioner filed a civil suit O.S. No. 6754 of 2007 seeking a declaration that the sale deed dated 7-7-2006 is not binding on him as he had already purchased the property on 10-6-1989 from Malla alias Mallaiah. Since the suit is dismissed, the petitioner filed an appeal RFA No. 219 of 2010 before this Court challenging the said decree. This Court allowed the appeal on 11-9-2012 and set aside the judgment and decree in O.S. No. 6754 of 2007, dated 10-12-2009. Since the suit is dismissed, the petitioner filed an appeal RFA No. 219 of 2010 before this Court challenging the said decree. This Court allowed the appeal on 11-9-2012 and set aside the judgment and decree in O.S. No. 6754 of 2007, dated 10-12-2009. The relevant portion of the decree drawn by this Court is as under: "And for the reasons stated in the judgment and while allowing this regular first appeal and setting aside the judgment and decree dated 10-12-2009 of the Trial Court, it is ordered and decreed that the suit of the plaintiff is decreed declaring that the right if any claimed by the defendants 1 to 8, 9 and 11 in respect of the suit schedule property based on the agreement dated 19-6-2006 and the sale deed dated 7-7-2006 would not bind the plaintiff. The defendants or any other person claiming under them are further directed by way of permanent injunction not to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff". 7. Thus, this Court has declared that the right, if any, claimed by defendants 1 to 8, 9 and 11 i.e. L.Rs. of Malla alias Mallaiah and the subsequent purchaser (3rd respondent herein) in respect of the suit schedule property based on the agreement dated 19-6-2006 and the sale deed dated 7-7-2006 would not bind the petitioner/plaintiff. 8. On the basis of the sale deed dated 7-7-2006, an entry was made by the 2nd respondent in the encumbrance certificate at Annexure-E showing that Smt. Vijayalakshmi, the third respondent is the owner of the property. Having regard to the declaratory decree as above, she cannot claim any right over the property. 9. As rightly submitted by the learned AGA appearing for respondents 1 and 2, there is no power vested in the second respondent to delete an entry made in the encumbrance certificate. This Court in M. Ramakrishna Reddy v. Sub-Registrar, Rajajinagar, Bangalore and Another 1999 (6) Kar. L.J. 68 : ILR 1999 Kar. 2033 : AIR 2000 Kant. 46, has held that the Registering Officer has no power or authority to modify or delete any entries made in Book I or in the Indexes relating to Book I by holding an enquiry relating to the validity of the document. L.J. 68 : ILR 1999 Kar. 2033 : AIR 2000 Kant. 46, has held that the Registering Officer has no power or authority to modify or delete any entries made in Book I or in the Indexes relating to Book I by holding an enquiry relating to the validity of the document. Consequently, he cannot delete or modify any entry made in an encumbrance certificate (except where it may relate to a clerical error). It is equally settled that an entry in the encumbrance certificate does not confer title on any person. 10. A declaratory decree need not be registered having regard to Section 17(2)(vi) of the Registration Act, 1908. If a registered instrument is cancelled under Section 31(1) of the Specific Relief Act, 1963, the concerned Court has to send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. This is clear from sub-section (2) of Section 31. When a Court declares that a written instrument is not binding on the plaintiff, this provision has no application. Despite a declaratory decree in favour of the petitioner, if an entry in the encumbrance certificate continues to show the name of the 3rd respondent as the owner of the property, it may create confusion in relation to the file of the property. 11. Rule 123 of the Karnataka Registration Rules, 1965 states that on the registration of a document which revokes or cancels or rectifies an error, in, or modifies the terms of a document previously registered in the same class or register book or of a return of lands acquired under the Land Acquisition Act or of a document received and filed under Section89 or on the receipt of a communication from a Revenue Officer or from a Court which intimates revocations, cancellation, rectification or modification, a note shall be entered at the foot of the entry of the latter document or communication as prescribed in the said Rule. Sub-rule (2) of Rule 123 states that when the revocation, cancellation, rectification or modification is of a document relating to immovable property, a corresponding note shall also be entered in Index II and when it relates to the rectification of any particular item entered in Index I, II, III or IV, a note of rectification shall also be entered in the respective index against the particular item rectified. Therefore, there is no bar for the Registering Authority to make a note at the foot of the sale deed executed by Malla alias Mallaiah represented by his general power of attorney holder C.R. Chandra dated 7-7-2006 that it is not binding on the petitioner. A corresponding note shall also be made by the second respondent in all other relevant registers and a fresh entry can be made to that extent in the encumbrance certificate. Therefore, I direct the second respondent to make a note at the foot of the entry of the sale deed that in RFA No. 219 of 2010, disposed of on 11-9-2012, a declaration has been issued by this Court that the sale deed dated 7-7-2006 is not binding on the petitioner. A corresponding note has to be made in all other registers/books maintained by the first respondent in relation to the property so also in the encumbrance certificate. Writ petition is accordingly disposed of. No costs.