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2017 DIGILAW 849 (JK)

Soma Devi v. Raman Kumar

2017-09-14

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Heard on the question of admission. This intra Court appeal has been filed against the order dated 04.08.2017 passed by the learned Single Judge by which writ petition preferred by the appellant has been dismissed. In order to appreciate the appellant’s challenge to the impugned judgment few facts need mention, which are stated infra: 2. The appellant executed an Irrevocable General Power of Attorney with consideration in favour of respondent No.1 on 23.07.2016 in respect of land admeasuring 70 Kanals and 19 Marlas situate at Village Meen Charkan, Tehsil Bari Brahmana, District Samba. The aforesaid Power of Attorney was duly registered with the Sub Registrar, Jammu. The appellant on 18.10.2016 cancelled the Power of Attorney executed in favour of respondent No.1 by executing Deed of Cancellation, which was duly registered with the Sub Registrar, Jammu, on 18.10.2016. Thereupon respondent No.1 filed a suit for permanent prohibitary injunction in which declaration was sought to declare the said cancellation as null and void and respondent No.1 also sought relief for permanent prohibitory injunction. The trial Court vide order dated 01.12.2016 stayed the operation of the deed of cancellation by an ex-parte ad-interim order. The aforesaid ad-interim order was made absolute in July, 2017, which is now subject matter of challenge in CIMA No.174/2017 and CIMA No.176/2017 before this Court. 3. The respondent No.1 on the strength of the Power of Attorney started alienating the land of respondent No.1 through private negotiation. The Sub Registrar vide order dated 23.05.2017 refused to register the Sale Deed on the ground that the matter is sub-judice. The aforesaid order was challenged before the Registrar in an appeal under Section 72 of the Registration Act, 1977 which was allowed vide judgment dated 09.06.2017 and the order passed by the Sub Registrar, Samba, was set aside and the Sub-Registrar, Samba, was directed to register the Sale Deed. The appellant thereupon filed OWP No.971/2017 in which order passed by the Registrar was challenged. The learned Single Judge vide order dated 04.08.2017 dismissed the writ petition preferred by the appellant. In the aforesaid factual background the appellant has filed this inter Court appeal. 4. The appellant thereupon filed OWP No.971/2017 in which order passed by the Registrar was challenged. The learned Single Judge vide order dated 04.08.2017 dismissed the writ petition preferred by the appellant. In the aforesaid factual background the appellant has filed this inter Court appeal. 4. Learned senior counsel for the appellant while inviting the attention of this Court to Section 34 of the Registration Act, 1977 submitted that under Section 34(3)(c) of the Act, the scope of enquiry by the Registering Officer is confined to the fact whether any person appearing as a representative, assign or agent has the right of such person so to appear. It is further submitted that the issue with regard to the validity of the Deed of Cancellation is pending consideration before the Civil Court and once the matter is pending adjudication before the Civil Court at the instance of the respondent No.1, all the questions are required to be examined in the Civil Suit and invocation of the power under Section 72 of the Act is nothing but an abuse of process of law. It is further submitted that once the parties were before the Civil Court the invocation of the jurisdiction of the Registrar lacks bonafide. In support of his submissions, learned senior counsel for the appellant has referred to the decision of the Division Bench of Punjab and Haryana High Court in Avnash Rani & Anr. v. Additional Deputy Commissioner-cum-Registrar Ferozpur & others, AIR 2009 (Pun) 35. 5. On the other hand, learned counsel for respondent No.1 has submitted that the Power of Attorney which was executed in favour of respondent No.1 was Irrevocable General Power of Attorney and the interest was created in the property, therefore, the same could not have been revoked without any notice and without consent of respondent No.1. It is further submitted that under the Power of Attorney, the cost of the land was paid to the appellant. In support of the aforesaid submissions learned counsel for respondent No.1 has referred to the decision of the Supreme Court in the case of Seth Loon Karan Sethiya v. Ivan E. John & Ors., AIR 1969 SC 73 and the decision of the High Court of Madhya Pradesh in the case of Sarvajanik Jan Kalyan Parmarthik Nyas v. State of M. P. & others, AIR 2008 MP 86 . While referring to Section 35(1)(b) of the Registration Act, it is argued that once any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, the Registrar has to register the document. Learned counsel for the respondent No.1 has also referred to Rule 39 of the Rules framed under Section 69 of the Registration Act and has submitted that the Registering Officer is not concerned with the validity of the document and therefore, the order passed by the Registrar is perfect, just and legal and the learned Single Judge has rightly dismissed the petition filed by the appellant. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. Before proceeding further it is apposite to take note of relevant statutory provisions. Section 34(3) and 35(1)(b) as well as Rule 39 of the Rules framed under Section 69 of the Registration Act read as under: “Section 34(3): The registering officer shall thereupon- (a) enquire whether or not such document was executed by the persons by whom it purports to have been executed; (b) satisfy himself as to the identity of the person appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear.” “Section 35 (1) (b): if in the case of any person appearing by a representative, assign or agent, such representative, assign or agent admits the execution, or” “Rule 39 of the Rules framed under Section 69 of the Registration Act: Registering Officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register unless they are empowered to do so by the laws and rules for the time being in force.” 7. Thus, from conjoint reading of the aforesaid statutory provisions it is evident that in case of any person appearing as a representative, assign or agent, the Registering Officer has to ascertain the right of the person and in case the aforesaid person admits the execution, the Registering Officer has to register the document. Thus, from conjoint reading of the aforesaid statutory provisions it is evident that in case of any person appearing as a representative, assign or agent, the Registering Officer has to ascertain the right of the person and in case the aforesaid person admits the execution, the Registering Officer has to register the document. In view of Rule 39 of the Rules, it is evident that the Registering Officer is concerned with the validity of the documents. None of the provisions of the Registration Act or the Rules framed thereunder empowered the Registering Officers to refuse to register the document in case of dispute pending before the Civil Court. The transferee by virtue of the registered document would derive the right, title and interest, which the transferor has at the time of the execution of the Deed and if respondent No.1 fails in the litigation, the result would follow. 8. The Supreme Court in the case of Seth Loon Karan Sethiya (supra) has held that where power is coupled with interest, the same cannot be revoked. See also (2012)1 SCC 656 , Suraj Lamp & Industries (P) v. State of Haryana & Anr. Insofar as the reliance placed by the learned senior counsel for the appellant in the case of Avnash Rani & Anr. (supra) is concerned, the same is of no assistance to the appellant, as in the aforesaid decision the Division Bench dealt with the case of revocable power of attorney. 9. In view of the proceeding analysis, we do not find any infirmity with the order passed by the learned Single Judge. In the result, the appeal fails and is hereby dismissed.