Nandeswar Chakravarty vs Mahendra Nath Sarma and Others

Sarjoo Prasad, C.J.—This is an appeal by the defendant 1 and arises out of a suit for declaration of title and recovery of possession. There is also a claim for mesne profits;

The disputed land comprises an area of 21 bighas, 2 kathas and 12 lessas. About 19 bighas, out of this area, are covered by periodic patta No. 59, and the rest of the area Is held under an annual patta. The litigation in this case is mainly between two rival purchasers or alleged purchasers from defendant 3 who admittedly was entitled to the land.

The plaintiff claims to have purchased the land from defendant 2 under a deed of sale, dated 23-8-48; It is said that defendant 2 himself bought the area in question under an earlier sale-deed, dated 30-1-46, from defendant 3. The plaintiff alleged that after his purchase he got delivery of possession from defendant 2 of the land in suit, but he was dispossessed by defendant 1 who had obtained an order of mutation in his favour in June, 1947. Therefore he had to institute the suit.

Defendant 1 resisted the suit on the ground that he had purchased the land in question from defendant 3 under an earlier sale-deed, dated 19-1-46, though the deed in question was registered on 29-5-46. He claimed that the deed being registered, title to the land vested in him from the date of execution of the document, and, as such, he was entitled to the property in preference to the claim of the plaintiff who had purchased from defendant 2, a vendee, under a later sale-deed.

The first Court dismissed the suit, but the decision has been reversed on appeal by the lower appellate Court.

The only point which the lower appellate Court dealt with was the question whether the document executed in favour of defendant 1 (Ex. A) had been validly registered. The execution of the document, in case of either party, is not seriously questioned; but the main point argued before the two Courts below was that the document on which defendant 1 claimed, having been presented for registration beyond four months from the date of its execution, evidently could not be registered, and the registration of the document, in contravention of the law on the point, was therefore, void.

The lower appellate Court held that there being nothing to show that the provisions of Section 25, Registration Act had been complied with, the registration of the document beyond the period in question by the Sub-Registrar was without jurisdiction and, therefore, invalid. He accordingly decreed the plaintiff''s suit and reversed the decision of the trial Court.

Mr. Chaudhuri on behalf the appellant has contended firstly that the decision of the lower appellate Court about the invalidity of the registration of the document in favour of the appellant (defendant 1) was erroneous and illegal. He contends that there should be a presumption in. favour of valid registration under the Registration Act, when, in fact the document had been registered. He also submits that the point of invalidity of registration was never seriously raised in the pleadings and, therefore, the appellant was. precluded from giving evidence to show that, In fact, there was an order of the Registrar directing-registration of the document within the meaning of Section 25, Registration Act.

So far as this point is concerned, we think that the decision of the lower appellate Court is quite justified. On the face of the document, it is obvious that it was presented beyond four months of the date of execution. The law required that in such a case an application had to be made before the Sub-Registrar for the purpose of registration, and the Sub-Registrar had to forward the application to the Registrar to whom he was, subordinate, and if the Registrar thought that the document should be registered, he could so direct en payment of a fine not exceeding ten times the amount of the proper registration fee.

The learned Subordinate Judge has rightly pointed out that there was no evidence to show that any of these procedures was followed in this case. The document has been propounded by defendant 1 who seeks to rely on it. On the face of it, it was hit by Section 23, Registration Act, and the onus, therefore, heavily lay on the defendant appellant to show that the requirement of the law had been fulfilled, before it could be assumed by any Court that the document had been registered within the meaning of Section 25, Indian Registration Act.

The learned Counsel has contended that a presumption should be raised in favour of defendant 1 u/s 114, Indian Evidence Act in view of the registration of the document. The presumption, however, cannot arise unless it is shown that the requirements of the law had been complied with, and as pointed out by the Court below, there was nothing to show that defendant 1 ever took recourse'' to the mandatory procedure laid down u/s 25 of the Act so as to enable the Registrar to exercise his discretion in the matter.

In our opinion, therefore, the appellant is not: entitled to any such presumption u/s 25, Registration Act. It must be, therefore, held, in concurrence with the decision of the learned Subordinate Judge, that the registration of the document in favour of defendant 1 is void. The argument that the question of invalidity of the registration was not specifically raised in the pleadings, is not convincing.

The point was raised and fully argued before the two Courts below, and it is now too late for the appellant to claim that he was taken by surprise, and that he had no opportunity of showing that the procedure laid down u/s 25, Registration Act had been complied with in this case. This appeal itself was heard by me sitting singly on 2-12-55, and even till now no order could be produced by the appellant showing that there was any direction given for the registration of the document by the Registrar concerned within the meaning of Section 25, Registration Act. The point, therefore, is without any substance and must be rejected.

We think, however, that the appeal cannot be disposed of finally without obtaining a finding from the Court below on the question as to whether the appellant is entitled to resist the suit on the ground of part-performance, as provided by Section 53(A), Transfer of Property Act. That there was a document executed in favour of defendant 1 on 19-1-46 containing the terms of the sale-deed, is not seriously disputed and cannot be seriously disputed now.

The trial Court held in favour of the defendant as to the validity of the document and, therefore, did not enter into the question whether defendant No. 1 was entitled to remain in possession of the land u/s 53(A), Transfer of Property Act even if the document was held to be void as a sale-deed. On the question of plaintiff''s possession, the trial Court opined that the plaintiff had failed to prove that he was ever in possession of the land in dispute and that he had been dispossessed there from.

The finding of the Court is obviously dubious and is not based upon any discussion of the evidence on record. The lower appellate Court unfortunately did not enter into this question at all, probably because its mind was occupied primarily by the important question canvassed before it, namely, the question of validity or otherwise of the registration of the document in favour of defendant 1; on which point, of course, he found against the defendant.

The question, however, still remained whether this defendant was entitled to resist the suit on the ground of part-performance of the contract of sale in his favour, and that question appears to have escaped the notice of the Court below. We, therefore, direct that the Court below should submit a finding to this Court on the question whether defendant 1 is entitled to remain in possession of the land in suit u/s 53(A), Transfer of Property Act.

The parties are not entitled to give any fresh evidence on the point, and the matter has to be disposed of on the evidence already on record. The Court below is directed to submit its finding within six weeks of the receipt of the record after hearing the parties concerned.

Let the records be sent down to the lower appellate Court at once.

Deka, J.

I agree.