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2019 DIGILAW 1340 (ALL)

Nageshwar Prasad v. State of U. P.

2019-05-15

AJIT KUMAR

body2019
JUDGMENT : Ajit Kumar, J. 1. Heard learned Counsel for the petitioner and Sri Rishabh Kumar, learned Counsel for the respondent No. 4. 2. By means of this present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 8.8.2013 passed by the Additional District Magistrate (F and R), Ballia in purported exercise of power under section 73 of the Registration Act, 1908 (in short 'Registration Act'). 3. Briefly stated facts are that the petitioner is a recorded tenure holder of the land which is subject-matter of sale-deed which has been directed to be registered under the order impugned. The petitioner moved some application before the Sub-Registrar alleging that though he had executed registered agreement for sale on 18.7.2003 but he never intended to execute any sale-deed in respect of his 1/4th share in the property. However, the respondents being persons with criminal antecedents, got him signed sale-deed showing payment of consideration of Rs. 10,000/- dated 13.1.2005 and he did so under coersion. The sale-deed was presented by the contesting respondent No. 4 before the Sub-Registrar, Ballia for registration of the execution of sale-deed, however, the Sub-Registrar, Ballia vide order dated 18.1.2005 refused to register the sale-deed. It is admitted to the parties that the Vendor of the sale-deed namely the petitioner was neither present before the Sub-Registrar at the time of presentation of sale-deed nor, any notice was issued to him in respect thereof. The respondent No. 4 having come to know about the order dated 18.1.2005 as it was served on 29.1.2005 immediately preferred an appeal before the Registrar of the District under section 73 of the Registration Act on 19.2.2005. The petitioner was put to notice by the Registrar and he filed his objection to the appeal taking the plea that the appeal was time barred and further that there was no occasion to execute sale-deed for a consideration of Rs. 1,70,000/- when the market value of the land was more than Rs. 15 lacs, so according to him it was a sale-deed under coercion and in order to establish the case of coercion, he further pleaded in his objection that the 4th respondent was a person with criminal antecedents and therefore, they got the document of sale-deed signed by the petitioner per force. 15 lacs, so according to him it was a sale-deed under coercion and in order to establish the case of coercion, he further pleaded in his objection that the 4th respondent was a person with criminal antecedents and therefore, they got the document of sale-deed signed by the petitioner per force. The Registrar considered the objection of the petitioner and held that the appeal was well within limitation filed from the date of knowledge because it had nowhere notice by the Sub-Registrar in his order refusing registration that the 4th respondent was present at the time of passing of the order or that he had signed the order sheet. 4. On the question of sale-deed being void for insufficient consideration, the Registrar expressed view that there was no document brought in evidence before him to establish that the market value of the land as claimed by the petitioner was the correct valuation. The Registrar further proceeded to hold that since the Vendor had himself admitted in para 6 that he had signed the document of sale, no further inquiry was needed as to whether the document of sale was duly signed by the Vendor or not and on the question whether such document of sale was got signed under coercion or by exercising muscle power upon the Vendee, cannot be gone into in appeal under the Registration Act and thus, the Registrar of the District directed for registration of the sale-deed by setting aside the order of Sub-Registrar. 5. Assailing the above order before this Court, learned Counsel for the petitioner has argued two points: one that the limitation would run from the date of order and since the order was passed on 18.1.2005, the limitation of 30 days would naturally expire on 16.2.2005 and in view of the settled legal position that the Registrar is not a Court, the Limitation Act would not apply and therefore, the Registrar fell in serious error of law in entertaining the appeal holding it to be competent and deciding it on merit; and second argument is to the effect that section 30(2) of the Registration Act, if read alongwith the Registration Rules 285, the Registrar is required to look into whether the sale-deed is presented by a proper person or not and that as to whether the sale-deed has been signed by Vendor himself or not. So according to him, taking the two points together the inquiry would be that the Vendor has signed the sale-deed and that it is he who has presented the same. In support of his argument, learned Counsel for the petitioner relied upon a judgment of this Court in Smt. Raisa Begum v. District Registrar, Saharanpur and another, 2011(8) ADJ 726 . 6. Per contra the argument advanced by learned Counsel for the 4th respondent is that the appeal preferred before the Registrar was well within time. In support of his contention he submits that the appeal was decided admittedly by the Sub-Registrar refusing to register the sale-deed vide order dated 18.1.2005 in absence of the Vendor and it is also a fact admitted that there was no notice given to the Vendor in the said case and therefore, it cannot be said that the Vendor was present on the date of order passed by Sub-Registrar. He further submits that keeping in view of language of section 73 of the Act, the limitation would run after the order is passed, meaning thereby the notice of order would be when it is put to the knowledge of the Vendor or he has already notice of the same, so that it can be said that the order is given effect on the date it is passed. 7. In support of his submission, learned Counsel for the respondent has relied upon two judgments of this Court in Shiv Charan Das v. Rukmani Devi, AIR 1975 Alld. 354 and Anganu v. State of U.P. and others, 2017 (123) ALR 670. 8. Having heard learned Counsels for the parties and their arguments across the Bar and having perused the record, what I find is that the admitted position between the parties is that there has been an agreement to sell dated 18.7.2003 for a consideration of Rs. 1,60,000/- at the initial stage with a promise to further pay Rs. 10,000/- at the time of execution of sale-deed. It is also admitted to the parties that the sale-deed got executed on 13.1.2005 and it was presented before the Sub-Registrar by the 4th respondent on 15.1.2005. 1,60,000/- at the initial stage with a promise to further pay Rs. 10,000/- at the time of execution of sale-deed. It is also admitted to the parties that the sale-deed got executed on 13.1.2005 and it was presented before the Sub-Registrar by the 4th respondent on 15.1.2005. It is also admitted to the parties that at the time of presentation or thereafter the Sub-Registrar never put the Vendor namely the petitioner to any notice and because of the fact that objection dated 15.1.2005 was already pending before him as filed by the petitioner, he proceeded to hold that the sale-deed was a result of coercive measure and not being out of free Will, its registration cannot be directed and therefore, he refused registration vide order dated 18.1.2005. On the question of limitation it is very much clear that the limitation in cases of appeal under section 73 of the Registration Act is 30 days. Relevant provision of the Registration Act is quoted hereunder: "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, assign or agent authorized 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." (Emphasis supplied) 9. The question now, therefore, is to examine import of the words and expression 'after the order is passed'. While learned Counsel for the petitioner relies upon a judgment of Apex Court in Ganeshan represented by its Power of Attorney Rukmani Ganeshan v. Commissional, Tamilnadu Hindu Religious and Charitable and Endowment Board and others and puts emphasis on the finding of the said judgment on question Nos. 2 and 3, what I find is that the judgment is on consideration of the provision of section 69 of Hindu Religious and Charitable Endowments Act, 1959. 2 and 3, what I find is that the judgment is on consideration of the provision of section 69 of Hindu Religious and Charitable Endowments Act, 1959. Section 69 of the Act, 1959 runs as under: "69. Appeal to the Commissioner (1) Any person aggrieved by any order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be], under any of the foregoing sections of this chapter, may within sixty days from the date of the publication of the order or of the receipt thereof by him as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit. (2) Any order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be], in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings as to satisfy himself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be]. Any such order passed by the Commissioner in respect of an order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be], shall be deemed to have been passed by the Commissioner on an appeal preferred to him under sub-section (1). (3) Any order passed by the Commissioner on such appeal against which no suit lies to the Court under the next succeeding section or in which no suit has been instituted in the Court within the time specified in sub-section (1) of section 70 may be modified or cancelled by the Commissioner if the order has settled or modified a scheme for the administration of a religious institution or relates to any of the matters specified in section 66." 10. The words and expression 'from the date of publication of the order' and the words and expression 'after the order is passed' though may look to be little bit similar but are having a wide varying import, while one pin points the time, the other makes it subject to the knowledge or order getting effect substantially. The words and expression 'from the date of publication of the order' and the words and expression 'after the order is passed' though may look to be little bit similar but are having a wide varying import, while one pin points the time, the other makes it subject to the knowledge or order getting effect substantially. This Court has already dealt with this provision in the two above authorities cited by learned Counsel for the respondent. 11. In the case of Shiv Charan Das (supra) vide para 11, the Court has held thus: "11. The crucial point for consideration is whether the application, Ex. B6, was presented to the District Registrar within time. Section 73(1) of the Registration Act lays down that an application is to be made "within thirty days after the making of the order of refusal" by the Sub-Registrar. The meaning of this expression has been considered in the case of Sivaminathan v. Lakshmanan, AIR 1930 Mad 490 and it has been held that if the order is made in the presence of the party the period of thirty days starts from the date when it was made. Where it is made in the absence of the party the period is' to be counted from the date when the order was made if notice of the date of the hearing of the application was given to him, but if no notice was given, the period runs from the date when the order is communicated to the party. In the instant case the plaintiffs' own application, Ex. B6, shows that he had moved an application before the Sub-Registrar on 13.5.1954 for summoning the executants and on it 31.5.1954 was fixed. It further states that on this date only one executant had arrived and the rest had remained absent and on the same day the Sub-Registrar had passed the order refusing to register the document. It makes it clear that he had not only knowledge of the date on which the order was passed but was also personally present on that date. Therefore, the period of thirty days commenced from 31.5.1954 and ended on 29.6.1954 but the application before the Registrar was filed on 5.7.1954 obviously after the expiry of 30 days." (Emphasis supplied) 12. In the case of Anganu (supra) vide para 5, the Court has held thus: "5. Therefore, the period of thirty days commenced from 31.5.1954 and ended on 29.6.1954 but the application before the Registrar was filed on 5.7.1954 obviously after the expiry of 30 days." (Emphasis supplied) 12. In the case of Anganu (supra) vide para 5, the Court has held thus: "5. A careful reading thereof indicates that the period of thirty days as provided under section 73(1) of the Registration Act would run from the date of knowledge of the order passed by the Sub-Registrar, So far as the Limitation Act is concerned, the provisions thereof are applicable in a Court proceeding, since the Sub-Registrar is not a Court, the provisions of Limitation Act would not apply." 13. So the legal position stands settled; the limitation in the case of appeal under section 73 would run only from the date of knowledge of the other side who wants to prefer an appeal or from the date of order if the other side was present at the time of order passed. 14. In the counter-affidavit filed on behalf of the State, wherein Sub-Registrar, Ballia is the deponent, it has been stated categorically that the 4th respondent was not intimated with the order. The order was served upon the 4th respondent only on 29.1.2005. This paragraph 10 of the counter-affidavit on facts has not been denied in the rejoinder affidavit. What has been stated only is that the contents are wrong and misconceived. 15. In the opinion of the Court, it is an evasive reply. When the pleadings are raised, the law is very clear, it has to be either rebutted specifically else would amount to deemed admission or not replied to. 16. In such circumstances therefore, the Court finds it admitted to the parties that the date of knowledge of the order appealed against before the Registrar is 29.1.2005 and therefore, the appeal preferred on 19.2.2005 was well within time. The first argument of the learned Counsel for the petitioner, therefore, is rejected. 17. So far as second argument is concerned regarding presentation of the appeal, I find that section 32 of the Registration Act is quite clear and specific. Section 32 of the Act runs as under: "32. The first argument of the learned Counsel for the petitioner, therefore, is rejected. 17. So far as second argument is concerned regarding presentation of the appeal, I find that section 32 of the Registration Act is quite clear and specific. Section 32 of the Act runs as under: "32. Persons to present documents for registration.-Except in the cases mentioned in [sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration-office,-- (a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or (b) by the representative or assign of such a person, or (c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned." 18. From the bare reading of above provision, it clearly comes out that the legislature intended that a document required registration may be presented by the person who signed it or by the person who is authorized by such person signing it to be present before Sub-Registrar or by the person who has to take benefit under the document or by Power of Attorney. The Rules 285 on which learned Counsel for the petitioner has more banked upon is reproduced hereunder: "285. When a document is presented for registration the points requiring the attention of the registering officer may be summarized as follows: (1) Whether he has jurisdiction to register the document? (2) Whether the document is time-barred? (3) Whether the document is free from the objections in sections 19, 20 and 21? (4) Whether the document is properly stamped? (5) Whether the document is presented by a proper person? (6) Whether the document was executed by the persons by whom it purports to have been executed?" 19. Learned Counsel for the petitioner has put emphasis on Clauses 5 and 6 of the Rules. The Clauses 5 and 6 of the Rules from their plain reading only indicate of a inquiry and presentation of the document. The presentation by a person who can be called to be a proper person, one has to look into substantive provision as contained in section 32 of the Act. The Clauses 5 and 6 of the Rules from their plain reading only indicate of a inquiry and presentation of the document. The presentation by a person who can be called to be a proper person, one has to look into substantive provision as contained in section 32 of the Act. The substantive provision of the Act as discussed hereinabove, authorises even the vendee to present a document for sale of registration. As the vendee is the person who is seeking benefit under the document. Conjoint reading of provisions with rules nowhere lead this Court to conclude that a document of sale is required necessarily to be presented by the Vendor. The judgment in the case of Smt. Raisa (supra) does not lay down any such a law either. The question of identity of a person is a question of fact and subject to inquiry by the Sub Registrar to ascertain that even a document of deed has been signed by the person executing the same or not. 20. In the present case, such is not the situation. The document has been admitted to have been signed by the petitioner. The question whether he signed the document under the coersion or not is not a matter of inquiry at least not so contemplated under the Registration Act nor, the Registrar is competent enough or can be called as a Court to evaluate the evidence and record any finding there upon and therefore, the second argument of the petitioner is also liable to be rejected and is hereby rejected. 21. In view of the above discussions and the authorities which I have have discussed and looked into as referred to above in this judgment, I do not find any error much less a substantial one or otherwise any perversity in the order passed by the Registrar so as to warrant any interference in exercise of power under Article 226 of the Constitution of India by this Court. 22. The question whether the petitioner executed the sale-deed voluntarily or under coercion is a question to be determined by a competent Court of law if the petitioner chooses to challenge the sale-deed and seeks cancellation thereof by filing civil suit. 23. Writ petition lacks merit and is accordingly dismissed.