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2019 DIGILAW 55 (KER)

Sivadasan v. Sub Registrar

2019-01-16

ALEXANDER THOMAS

body2019
JUDGMENT : 1. The prayers in the above Writ Petition (Civil) are as follows: “(i) To issue a writ of Mandamus or appropriate writ or direction to the 1st respondent to conduct a preliminary enquiry into the allegations contained in Ext.P6 complaint after quashing Ext.P7 order. (ii) To issue a writ of Mandamus or appropriate writ or direction to the 1st respondent to commence prosecution against the party respondents as envisaged under Section 83 of the Registration Act, 1908.” 2. Heard Sri. Mahesh. V. Menon, the learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, the learned Senior Government Pleader appearing for official respondent No.1. In the nature of the orders proposed to be passed in this writ petition, notice to contesting respondents 2 to 4 will stand dispensed with. 3. As per the case projected by the petitioner, in the year 1991, his father Sri. Krishnan had entered into an oral agreement for sale in respect of his property (nilam) having an extent of 27.75 cents comprised in survey No.163/2 (Resurvey No. 262/10) of Ponmala Village, Tirur Taluk, Malappuram District with one Bhavadasan Namboodiri, who is the predecessor of respondents 2 and 3 for an amount of 16,500/- and had paid an amount of Rs.501/- as an advance for the same day. Thereafter, on the request of the said Bhavadasan Namboodiri, the entire balance amount has also been paid to him through one Raman Namboodiri, S/o. Sreekumaran Namboodiri, Pullanikkatt Mana etc. The said Raman Namboodiri had paid the said amount to Sri. Bhavadasan Namboodiri and thereafter, the said Bhavadasan Namboodiri had handed over possession of the said property to the petitioner’s father and that he is in possession of the said property and cultivated the paddy till his death in year 2000. Thereafter, the petitioner’s family members are continuing cultivation in that property. Later, Sri. Bhavadasan Namboodiri had expired in the year 1999. While so, the 2nd and 3rd respondent, who are the legal heirs of the deceased Bhavadasan Namboodiri had executed Ext.P3 sale deed in favour of the 4th respondent , whereby conveying the very same landed property, which was already parted to their predecessor to the petitioner’s predecessor. Later, Sri. Bhavadasan Namboodiri had expired in the year 1999. While so, the 2nd and 3rd respondent, who are the legal heirs of the deceased Bhavadasan Namboodiri had executed Ext.P3 sale deed in favour of the 4th respondent , whereby conveying the very same landed property, which was already parted to their predecessor to the petitioner’s predecessor. That, though respondents 2 and 3 were fully aware about the fact that the property was parted by their predecessor to the petitioner’s father, they suppressed those aspects and made false statements in the recitals that the said property is under their ownership and possession. According to the petitioner, the said recitals made by contesting respondents 2 and 3 in Ext.P3 sale deed that they are having ownership and possession of the subject property are clearly false and wrong and the said recitals have been made by them knowing fully well that those factual recitals are false and wrong , in as much as very much within the knowledge of contesting respondents 2 and 3 that the entire property was already parted to the petitioner’s father and that the said property is under the control, possession and enjoyment of the petitioner and his family etc. On this basis, the case of the petitioner is that such recitals made by contesting respondents 2 and 3 in Ext.P3 sale deed would amount to ‘intentionally making false statements’ as envisaged in Section 82(a) of the Registration Act, 1908 and that the said act on the part of contesting respondents 2 and 3 would amount to their committing an offence under that provision, which is prosecutable under Section 83. Thereupon, the petitioner had preferred Ext.P6 petition dated 6.8.2018 before the 1st respondent Sub Registrar pointing out this aspects and requesting that prosecution measures should be launched against contesting respondents 2 and 3 as per Section 82, for making such false recitals in Ext.P3 sale deed etc. The said request of the petitioner has been denied by the 1st respondent Sub Registrar as per the impugned Ex.P7 communication dated 21.8.2018 on the ground that since the entire formalities for the registration of Ext.P3 had already been completed, it is for the petitioner to take recourse to appropriate remedies before the courts concerned for ventilating his grievances and complaints in that regard. Ext.P7 letter dated 21.8.2018 issued by the 1st respondent Sub Registrar reads as follows: xxx xxx xxx 4. It is this proceedings at Ext.P7 that is under challenge in the writ petition. Incidentally, it is also urged by the petitioner that since the 1st respondent had refused to launch criminal proceedings, the petitioner had submitted a petition before the competent Police authorities concerned, who had entertained it as First Information Statement and had registered Ext.P4 FIR in Crime No.54/2015 of Kottakkal Police Station, wherein, contesting respondents 2 and 3 have been arrayed as accused 1 and 2 for offences under Section 34 and 420 IPC. 5. Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for 1st respondent would submit that now it is learnt that the Police authorities concerned had entrusted the investigation of Ext.P4 crime to the District Crime Detachment/Crime Branch, who in turn, after conducting investigation, had filed referral report stating that the matter is essentially a civil dispute. This Court need not get into those aspects of the matter. 6. The prime issue is based on Sections 82 and 83 of the Registration Act, which read as follows: “82. Penalty for making false statements, delivering false copies or translations, false personation and abetment.-Whoever- (a) intentionally makes any false statement, whether on oath or not, and whether it has been recorded or not, before any officer acting in execution of this Act, in any proceeding or enquiry under this Act, or (b) intentionally delivers to a Registering Officer, in any proceeding under this Act or the rules made there under a false copy or translation of a document, or a false copy of a map or plan; or (c) falsely personate another, and in such assumed character presents any document, or makes any admission or statement, or causes any summons or commission to be issued, or does any other act in any proceeding or enquiry under this Act; or (d) abets anything made punishable by this Act; shall be punishable with imprisonment for a term which may extend to Seven years, or with fine, or with both. 83. 83. Registering Officers may commence prosecutions.- (1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permission of the Inspector-General, the Registrar, or the Sub-Registrar, in whose territories, district or sub-district, as the case may be, the offence has been committed. (2) Offences punishable under this Act, shall be triable by any Court or officer exercising powers not less than those of a Magistrate of the Second Class.” 7. The prime issue that is posed before this Court which as to the legality and correctness of the stand taken by the 1st respondent in Ext.P7. The Apex Court and various High Courts have held in a catena of rulings as in Sathyapal v. State of M.P. [ 2016 (10) SCC 767 ], in paragraph 40 thereof that once the document is registered, it is not open to the registering officer to cancel that registration even if his attention is inviting the certain irregularity committed during the registration of the document and the remedy of the aggrieved party in such situation is to challenge the registration and the validity of the document before the Civil Court concerned. That is the common law position in the matter and would be subject to any statutory exemptions that may be made by the legislature. For instance, a state amendment has been incorporated in the Registration Act as per Section 83A, whereby the designated officers concerned are empowered to cancel the registered document, if it is proved and established that it has been procured by false personation as conceived in Section 83A of the Registration Act. Therefore, if the jurisdictional parameters as envisaged in Section 83A is fulfilled, certainly the statutory authorities would take recourse to such extraordinary powers conferred by the Statute as per Section 83A and such scenario should then be the exception to the common law position. The petitioner's contention is not based on Section 83A as there is no allegation that the deed has been procured on the basis of false personation. The petitioner's contention is not based on Section 83A as there is no allegation that the deed has been procured on the basis of false personation. The specific case of the petitioner is that the factual recitals have been made by the contesting respondents 2 and 3 in Ext.P3 sale deed, which have been made by them intentionally and after knowing fully well that it is false and wrong and therefore, it would attract the criminal offence as envisaged in clause (a) of Section 82 of the Registration Act. 8. However, after consideration of the request made by the petitioner in Ext.P6, the 1st respondent has now taken a considered decision not to launch any criminal proceedings as per Sections 82 and 83, keeping in view of the facts and circumstances of the case. Going by the facts and circumstances of this case, the 1st respondent cannot be found fault with for taking the view that the criminal proceedings as envisaged in Section 82 is not really called for and necessary in this case. The petitioner's contention is that the 1st respondent ought to have conducted an enquiry to find out whether the property has already parted by the contesting respondents' predecessor to the petitioner's father in 1991 and whether the property has then been under the control and possession of the petitioner and his family. Therefore, the 1st respondent in such a situation will have to get into the complex area of adjudicating and finding at least a prima facie case or otherwise of the claim made by the petitioner that the property was parted already to his family in the year 1991 and the rival claim made by contesting respondents 2 and 3 that they are having ownership and possession even at the time of registration of Ext.P3 sale deed. That indeed would be a heavy and daunting task and it is too much to expect that registering officer will have the competence to get into this vexed business of resolving such highly controversial facts scenarios as have been projected by the rival claimants. That indeed would be a heavy and daunting task and it is too much to expect that registering officer will have the competence to get into this vexed business of resolving such highly controversial facts scenarios as have been projected by the rival claimants. The 1st respondent cannot be blamed for assuming that in all probability contesting respondents 2 and 3 would fully controvert the case of the petitioner and would assert that contesting respondents there having ownership and possession of the property concerned even at the time of registration of Ext.P3 sale deed and that the factual recitals made by them in Ext.P3. Then the 1st respondent will have to conduct an enquiry to be at least prima facie satisfied as to the correctness or otherwise of this rival claims and then only he could have decided as to whether prima facie there is a case of commission of offence as envisaged in clause (a) of Section 82. In this regard, it would also be relevant to note provisions contained in Rule 67 of the Registration Rules framed under the Registration Act, which reads as follows: “67. It forms no part of a Registering Officer’s duty to enquire into the validity of a document except documents styled as marriage agreement brought to him for registration or to attend any written or verbal protest against the registration of a document based on the ground that the executing party had no right to execute the document; but he is bound to consider objections raised on any of the grounds stated below:- (a) That the parties appearing or about to appear before him are not the persons they profess to be; (b) That the document is forged; (c) That the person appearing as a representative, assign or agent, has no right to appear in that capacity; (d) That the executing party is not really dead, as alleged by the party applying for registration; or (e) That the executing party is minor or an idiot or a lunatic.” 9. Therefore, the considered view taken by the 1st respondent in Ext.P7 that proceedings under Sections 82 and 83 of the Registration Act need not be pressed in the facts and circumstances of the case cannot be branded as illegal or manifestly arbitrary. 10. Sri. Therefore, the considered view taken by the 1st respondent in Ext.P7 that proceedings under Sections 82 and 83 of the Registration Act need not be pressed in the facts and circumstances of the case cannot be branded as illegal or manifestly arbitrary. 10. Sri. Mahesh V. Menon, the learned counsel for the petitioner would submit that the petitioner has not been intimated that Ext.P4 crime has already been referred by the competent investigating agency concerned and that this Court may clarify that petitioner could prosecute further proceedings in respect of Ext.P4 crime and also to initiate appropriate criminal proceedings as against contesting respondents 2 and 3 for the offence under Section 82 (a) of the Registration Act by filing appropriate complaint before the jurisdictional Magistrate Court concerned. Sri. Mahesh. V. Menon, the learned counsel appearing for the petitioner would place in that regard reliance on the judgment of the Apex Court in Darmadeo Rai v. Ramnagina Rai reported in 1972 (1) SCC 460 = AIR 1972 SC 298, wherein it has been held that private persons can launch prosecution in cases where the commission of the offence under the Act comes to the knowledge of the Registering Officer in his official capacity and that the Section enables the officers named to use their official position for the purpose of prosecution without personal risk. These aspects of the matter need not detain any further attention of the Court and it is for the petitioner to pursue his remedies in accordance with law. The upshot of the above discussion is that no grounds have been made out to successfully challenge Ext.P7. In that view of the matter, the above Writ Petition (Civil) will stand dismissed.