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2022 DIGILAW 111 (TRI)

Gauri Roy Choudhury (Das) v. Manobikash Datta Biswas

2022-03-09

ARINDAM LODH

body2022
JUDGMENT Arindam Lodh, J. - By way of presenting the instant second appeal, the appellant has challenged the judgment and decree dated 18.01.2019 passed by the learned Additional District Judge, West Tripura, Agartala in case No. Title Appeal 09 of 2013 thereby confirming the judgment and decree dated 20.11.2012 and 30.11.2012 passed by the learned Civil Judge (Senior Division), Court no. 2, Agartala, West Tripura in case no. T.S. 124 of 1995. 2. Heard Mr. SM Chakraborty, learned senior counsel assisted by Mr. AK Deb, learned counsel for the appellant. Also heard Mr. D. Bhattacharjee, learned senior counsel assisted by Mr. S. Das and Mr. P. Gautam, learned counsel for the respondents. 3. The facts of the case, as projected by the learned appellate court, may be reproduced hereunder: "(i) The original plaintiff Mihir Datta Biswas, now deceased (the predecessor of the plaintiff respondents) was the owner of a brick field and during his life time the husband of the defendant (the predecessor of the defendant-appellant) entered into an agreement with plaintiff for supply of bricks to the husband of the defendant and he agreed to advance Rs. 10,000/- to the original plaintiff. But, the husband of the defendant paid only Rs. 2,600/- only out of agreed amount of Rs. 10,000/- for which the original plaintiff demanded for the rest amount of money when the husband of the defendant in collusion with deed writer Sri. Anath Bandhu Chakraborty created a false Bainapatra and placed the same through the defendant before the Sub-Registrar Sadar for registration. But, the predecessor of the respondent plaintiffs did never execute any such Bainapatra in favour of the defendant and not only this, the predecessor of the respondent-plaintiffs also did never see even the face of the defendant prior of his appearance before the District Registrar. However, the sub Registrar, Sadar, refused to register that forged document (Bainapatra) since the predecessor of the respondent-plaintiffs being the executor of that Bainapatra was absent before the Sub-Registrar, Sadar. Accordingly, the predecessor of the present appellant-defendant filed an appeal in the court of District Registrar under section 73 of the Indian Registration Act, 1908 for registration of that Bainapatra in SL No. 4051 and that appeal was registered vide No. 1/DR/81. Accordingly, the predecessor of the present appellant-defendant filed an appeal in the court of District Registrar under section 73 of the Indian Registration Act, 1908 for registration of that Bainapatra in SL No. 4051 and that appeal was registered vide No. 1/DR/81. Subsequently, District Registrar, West Tripura, Agartala misinterpreted the law and power vested with him and erroneously by his order dated 05.11.85 directed the District Sub Registrar, Sadar to register the alleged deed of Bainapatra and after passing of that order by the Appellate forum, the District Sub-Registrar on 15.11.1985 registered the alleged deed of Bainapatra vide No. 1-6996 dated 15.11.85. (ii) Being aggrieved and dissatisfied with the order of District Registrar, West Tripura, Agartala original plaintiff Mihir Datta Biswas (now deceased) filed a suit on 29.04.1987 seeking for a decree to declare that the impugned order dated 05.11.1985 passed by the District Registrar in appeal No. 1/DR/81 ordering that said Bainapatra dated 11.01.80 Sl No. 4051 to be registered is of no value and void and the alleged Bainapatra registered subsequently on 15.11.85 in pursuance to the order dated 05.11.85 of the District Registrar is liable to be cancelled and delivered up and accordingly a note is to be sent to the District Sub-Registrar, Agartala for cancel of the said Bainapatra which was registered on 15.11.85 and also to declare that the alleged Bainapatra dated 14.01.1980 is illegal, void, fraudulent and collusive with cost. (iii) Initially, the suit was instituted in the court of Sadar Munsiff Agartala, West Tripura on 29.04.1987 as TS 70 of 1987. During the pendency of that suit on 29.05.1995 it was transferred to the court of Ld. Assistant District Judge, Court No. 1, West Tripura, Agartala and was renumbered as TS 124/1995. Subsequently, on 09.11.10 court of the Ld. Civil Judge (Sr. Division), Court No. 2, West Tripura, Agartala received the record on transfer and after completion of trial by his Judgment and order dated 20th November, 2012 decreed the suit on contest in following terms:- ORDER "In view of the aforesaid issue wise discussion and findings, this suit is decreed on contest. It is hereby declared that the impugned order dated 05.11.85 passed by the District Registrar in appeal No. 1/DR/8 directing the Sub-Registrar Sadar for registration of the deed of Bainapatra dated 11.01.80 in Sl. No. 4051 is illegal and inoperative in the eye of law. It is hereby declared that the impugned order dated 05.11.85 passed by the District Registrar in appeal No. 1/DR/8 directing the Sub-Registrar Sadar for registration of the deed of Bainapatra dated 11.01.80 in Sl. No. 4051 is illegal and inoperative in the eye of law. The alleged deed of Bainapatra which was registered on 15.11.85 as per order of the District Registrar, West Tripura, Agartala, in Registration Appeal No. 1/DR/81 dated 05.11.85 is hereby declared as illegal, void, fraudulent and collusive and accordingly the said registered Bainapatra is declared as cancelled. Parties to this suit are to bear their own cost. Send a copy of this Judgment to the Sub-Registrar Sadar for information and doing the needful. Thus, this suit is disposed of on contest. Prepare decree accordingly. Make entry in the T.R." In fact, Judgment was delivered on 20.11.12 and the consequent decree was prepared and signed on 30.11.12 as appears from the original record". 4. The learned trial court had framed the following issues which were reiterated by the learned appellate court also- "(i) Is the suit maintainable in its present form and nature? (ii) Whether impugned order dated 05.11.1985 passed by the Ld. District Registrar in Appeal No. 1/DR/81 is illegal, void and liable to be cancelled? (iii) Whether the plaintiff is entitled to get decree as prayed for? (iv) Any other relief or reliefs?" 5. On consideration of pleadings and materials on record, both the courts below declared that the order dated 05.11.1985 passed by the District Registrar is illegal and void. The alleged 'bynapatra' i.e. the Deed of Agreement, as ordered to be registered by the District Registrar, which subsequently was registered by the District Sub-Registrar, had been cancelled by the learned trial court which was also confirmed by the learned first appellate court, as stated in the opening paragraph of this judgment. Being aggrieved, the defendant appellant has preferring the present second appeal. 6. At the time of admission of the appeal vide order dated 06.05.2019, the following substantial questions of law had been formulated:- "(i) When the statute clearly stipulates the area of civil suit, whether the sections 76 and 77 of the Registration Act has been correctly interpreted? (ii) Whether the findings that without setting aside the existing decree in force, a subsequent decree, virtually negating the decree, can be lawfully passed?" 7. While deciding the issue no. (ii) Whether the findings that without setting aside the existing decree in force, a subsequent decree, virtually negating the decree, can be lawfully passed?" 7. While deciding the issue no. (i), the learned trial court held that the suit was maintainable. This question of maintainability relates to the first substantial question of law, as referred to here-in-above. 8. Mr. Chakraborty, learned senior counsel appearing on behalf of the defendant-appellant, (here-in-after referred to as the 'defendant') has vehemently argued that the suit was not maintainable on the ground that Section 77 of the Registration Act, 1908 clearly bars the parties to file a civil suit after expiry of 30 days from the date of the order passed by the Sub-Registrar or the District Registrar. 9. Now, the question is whether the courts below have perfectly interpreted the provisions as embodied under Section 76 and 77 of the Registration Act, 1908. It is the case of the plaintiff that he never executed any 'bynapatra' i.e. Deed of Agreement (Exbt. A) dated 14.01.1988. The predecessor of the plaintiff even did not see the face of the defendants. The plea of the defendants is that late Mihir Datta Biswas, the predecessor of the plaintiff had put his signature in the said 'bynapatra', but, he did not turn up before the Sub-Registrar, Sadar, on the date of registration of the said 'bynapatra'. He presented the said 'bynapatra' to the office of the Sub-Registrar. Since the predecessor of the plaintiff did not turn up before the Sub-Registrar for registration of the document, it was refused to be registered with the remark "registration refused". Against the said refusal order, the defendants preferred statutory appeal before the District Registrar under Section 72 of the Registration Act. The said appeal was entertained. The District Registrar had issued notice upon the present plaintiff. They appeared and contested the appeal by filing written objection. Both the parties had adduced evidence before the District Registrar. On consideration of the evidences, the District Registrar had passed an order on 05.11.1985 directing the Sub-Registrar, Sadar to register the said 'bynapatra'. Accordingly, the Sub-Registrar had registered the said 'bynapatra' on 5.11.1985 vide registration no. I-6996. This order dated 5.11.1985 passed by the District Registrar was challenged by the plaintiff in the year 1987 i.e. after expiry of two years, which according to Mr. Accordingly, the Sub-Registrar had registered the said 'bynapatra' on 5.11.1985 vide registration no. I-6996. This order dated 5.11.1985 passed by the District Registrar was challenged by the plaintiff in the year 1987 i.e. after expiry of two years, which according to Mr. Chakraborty, learned senior counsel, does not conform the statutory prescription as embodied in Section 77 of the Registration Act, 1908. Mr. Chakraborty, learned senior counsel has tried to persuade this court that though Section 77 of the Registration Act, stipulates for filing civil suit if the order of registration is refused by the Sub-Registrar or District Registrar, but, it impliedly says that even in case the District Registrar allows such registration on the prayer of the applicant, then, also it has to be challenged by filing a civil suit within a period of 30 days, and according to him, the aggrieved party has no right to approach the civil court beyond the period of said 30 days. As such, since the aggrieved party i.e. the plaintiff had instituted the civil suit seeking declaration of the order dated 05.11.1985 as illegal and void, has been filed after expiry of 30 days, the said civil suit is beyond the area of civil court. I am unable to accept the said submission as advanced by the learned senior counsel appearing on behalf of the defendants. 10. Section 77 of the Registration Act, reads as under: "77. Suit in case of order of refusal by Registrar.-- (1) Where the Registrar refuses to order the document to be registered, under section 72 or a decree under section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree. (2) The provisions contained in sub-sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit." 11. (2) The provisions contained in sub-sections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the documents shall be receivable in evidence in such suit." 11. The words "where the Registrar refuses to order the document to be registered", makes it aptly clear that when the Sub-Registrar or Registrar refuses to register the document, only then, the aggrieved party has to take recourse of filing civil suit and that also within a period of 30 days from the date of making the order of refusal. 12. In the case in hand, the Sub-Registrar had refused to register the document as prescribed under Section 72 of the Registration Act. Against the said refusal order, the applicant i.e. the defendants preferred an appeal before the District Registrar. The District Registrar did not refuse the appeal rather admitted the appeal and directed the Registrar to admit the said document i.e. the 'bynapatra' for registration. 13. Applying the principle of statutory interpretation, it is the duty of the court to read the language of the statute in its true literal sense and meaning. The court should not incorporate or mend, and, by construction make up the deficiencies which are left. On plain reading of the provision, as embodied in Section 77 of the Registration Act, I do not find any such words where it is written that when the District Registrar allows the appeal and directs for registration of the document, in that case also the aggrieved party has to approach the civil court within a period of 30 days. This court cannot incorporate anything which is not stated in Section 75 of the Registration Act. 14. On perusal of the Registration Act, I find that the Act does not provide any remedy for the aggrieved party when the Sub-Registrar or Registrar allows the application filed by the applicant for registration. It is settled proposition of law that any aggrieved party cannot be left remediless as held by the Hon'ble Supreme Court in Sunil Vasudeva vs. Sunder Gupta, reported in (2019) 17 SCC 385 . It is settled proposition of law that any aggrieved party cannot be left remediless as held by the Hon'ble Supreme Court in Sunil Vasudeva vs. Sunder Gupta, reported in (2019) 17 SCC 385 . If the Act itself is silent about the remedy to be provided to the aggrieved party, then, only recourse will remain with the aggrieved party to approach the civil court in terms of section 9 of the Code of Civil Procedure, 1908. Section 9 of the CPC contemplates that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There is nothing in the Registration Act wherein the jurisdiction of the civil court is expressly or impliedly barred in a situation like that of the present suit. [Emphasis supplied] 15. Here, the plaintiff has instituted the suit for declaration under Section 34 of the Specific Relief Act. The cause of action of institution of the present suit arose first on 05.11.1985 when the District Registrar had passed the order directing the Sub-Registrar to admit and register the document i.e. the 'bainapatra'. In that case, Article 58 of the Limitation Act will come into play and Section 77 of the Registration Act would have no application. 16. I cannot have any different opinion than that of the opinion as opined by the learned trial court as well as by the learned first appellate court that Section 77 of the Registration act, 1908 provides that if the Registrar refuse to register the document to be registered, then, the aggrieved party has a remedy to approach the civil court, but, when the Registrar directs for registration of document, obviously Section 77 of the Registration Act has no application. Article 58 of the Limitation Act reads as follows:- 'Description of Suit Period of Limitation Time from which period begins to run To obtain any other declaration Three years When the right to sue first accures 17. In the instant case, the plaintiff has challenged the order dated 05.11.1985 passed by the District Registrar by way of instituting the civil suit admittedly in the year 1987 i.e. within the period of limitation, as prescribed under Article 58 of the Limitation Act. So, the instant suit is well within the area of civil court. Accordingly, the first substantial question of law, as formulated, has been answered. 18. So, the instant suit is well within the area of civil court. Accordingly, the first substantial question of law, as formulated, has been answered. 18. To answer the second substantial question of law, I have considered the submission of learned senior counsel appearing on behalf of the defendant-appellant. According to learned senior counsel appearing on behalf of the appellant, the decree passed in the present suit is not legally valid in the eye of law for the reason that the decree over the suit land was passed in favour of the defendant-appellant in an earlier suit filed by the defendant. 19. It is noticed that the operation of the decree dated 12.08.1993 was passed ex parte by the Assistant District Judge, Court no. 2, West Tripura, Agartala, in the earlier suit vide no. Title Suit 1 of 1981 filed by the defendant-appellant at the stage of peremptory hearing (PH). Thereafter, the defendant-appellant had filed an execution petition being No. Ex(T) 1 of 2001 before the learned Assistant District Judge, Court no. 2, West Tripura, Agartala, and the said proceeding was subsequently stayed. Necessary implication flowing from such order by the court and allowing the continuation of the present suit is that the decree passed in the earlier suit has no force in the eye of law being non est and inoperative. The defendant-appellant has never challenged the continuation of the proceeding of the present suit, rather participated in the proceeding. 20. In this situation, according to me, the defendant-appellant is estopped from raising the plea of obtaining a decree which even has not attained its finality. 21. In the opinion of this court, the decree passed by this court in the present suit will only be operative having force of law, and thus, the second substantial question of law has been answered. 22. In the above conspectus, I find no merit in the present appeal, and accordingly, the same stands dismissed. The judgment and decree passed by the courts below have been affirmed and upheld. Miscellaneous application(s), if any, also stands disposed. Draw the decree accordingly. Send down the LCRs.