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Sita Dei Vs. Daitary Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 342 of 1963
Judge
Reported inAIR1964Ori224
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Registration Act, 1908 - Sections 49 and 71 to 77
AppellantSita Dei
RespondentDaitary Mohanty and ors.
Appellant AdvocateB.K. Pal, ;D.P. Mohapatra and ;G.B. Patnaik, Advs.
Respondent AdvocateA.B. Roy and ;P. Roy, Advs.
DispositionPetition allowed
Cases ReferredRameshwar Prasad v. Anandi Devi
Excerpt:
.....makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the distinction between 'a contract of sale' and 'a contract for sale' is well known. amrit mahton, air 1946 pat 62. the principle has been well discussed in nasiruddin midda v. this is, however, subject to the limitations of a court of equity and the matter is well discussed in rameshwar prasad v. pal fail......are to get merely the relief under section 77 of the registration act as the suit was not for specific performance of contract.(iii) even assuming that the suit was one for specific performance of contract, such a suit does not lie once the plaintiffs resorted to the remedy prescribed under sections 71 to 76 of the registration act.5. the first contention is wholly devoid of force. both the courts below have gone into the evidence and have recorded a clear finding that the defendant executed the sale-deed after fully understanding the contents thereof. the finding is a pure finding of fact and cannot be assailed in second appeal.6. the next contention that the suit is not for specific performance of contract but one under section 77 of the registration act is also not correct. on a.....
Judgment:

G.K. Misra, J.

1. Defendant is the appellant against the confirming judgment. Plaintiff's case is that the defendant executed a sale deed (Ex. 3) on 6-4-1951 for consideration. It was presented for registration on 4-3-51. Subsequently the defendant did not turn up before the Sub-registrar for registration. The Sub-Registrar refused to register on 14-9-1951. Plaintiffs filed an' application before the Registrar under Section 73 of the Indian Registration Act which was rejected on 30-4-1953 under Section 76 of the Registratian, Act. The plaintiffs accordingly filed the suit on 14-5-1953. The relief sought in the suit is not merely to get Ex. 3 registered. Further reliefs have been claimed for confirmation of possession and in the alternative for recovery of possession.

2. The defence case is that the defendant is an illiterate lady who fixed her thumb impression and signature on a blank paper on the representation that it was a mortgage bond. She denied execution and passing of consideration.

3. Both the courts below concurrently found that the plaintiffs have established execution of the document and that they are in possession of the disputed land. The learned trial Court decreed the suit declaring right, title and interest of the plaintiffs over the suit land and confirming possession. The defendant was directed to register Ex. 3 within one month, that is within 27-10-57 failing which the Court was to get it registered on behalf of the defendant. The learned lower appellate Court varied the trial Court's decree in not granting declaration of title, but directed the defendant to execute a fresh sale-deed and to get it registered within 30-4-63, failing which the plaintiffs were to get the sale deed executed and registered by the Court on behalf of the defendant. He granted the further relief that on the completion of the sale-deed, the right, title and interest of the plaintiffs over the suit property would stand declared. He confirmed the possession of the plaintiffs and injuncted the defendant not to disturb their possession.

It is to be noted that the learned lower appellate Court substantially varied the decree of the trial Court inasmuch as under the trial Court's decree the defendant was to merely get Ex. 3 registered, while under the lower appellate Court's decree,' she was to execute a fresh saledeed and get it registered.

4. Mr. Pal raised the following contentions:

(i) The finding of the Courts below holding that there was due execution of the sale-deed by the defendant is contrary to law in its application to an illiterate lady.

(ii) Even if the execution is proved, the plaintiffs, are to get merely the relief under Section 77 of the Registration Act as the suit was not for specific performance of contract.

(iii) Even assuming that the suit was one for specific performance of contract, such a suit does not lie once the plaintiffs resorted to the remedy prescribed under Sections 71 to 76 of the Registration Act.

5. The first contention is wholly devoid of force. Both the Courts below have gone into the evidence and have recorded a clear finding that the defendant executed the sale-deed after fully understanding the contents thereof. The finding is a pure finding of fact and cannot be assailed in second appeal.

6. The next contention that the suit is not for specific performance of contract but one under Section 77 of the Registration Act is also not correct. On a perusal of the plaint, it is clear that the plaintiffs have also asked for reliefs of confirmation of possession, or, in the alternative, for recovery of possession. The relief of possession does not come within the scope of a suit under Section 77 of the Registration Act which is limited to a decree for directing the document to be registered in the Sub-Registrar's office if it is duly presented for registration within 30 days after the passing of such a decree. There is, therefore, no substance in the contention that that frame of the suit is not one for specific performance of contract. In fact, ad valorem, court-fees have been paid which are not necessary in a suit under Section 77 of the Registration Act.

7. The third contention deserves careful examination. Mr. Pal's contention, in essence, amounts to that once the plaintiffs have resorted to the machinery provided under the Indian Registration Act, for getting the sale-deed (Ex. 3) registered, they are precluded from seeking specific performance of contract under the Specific Relief Act. It may be noted that Mr. Pal does not dispute the proposition that in this suit itself the plaintiffs are entitled to the relief under Section 77 of the Registration Act as the suit was filed within 30 days from the date of refusal by the Registrar under Section 76 of the Registration Act. There was some conflict of authority on this point prior to the amendment of Section 49 of the Registration Act. But the proviso added to it clarifies the position that an unregistered document, affecting immoveable property and required to be compulsorily registered either under the Registration Act or under the Transfer of Property Act, may be received as evidence of contract in a suit for specific performance. This amendment was necessitated on account of the dictum of the Privy Council taking the contrary view. The distinction between 'a contract of sale' and 'a contract for sale' is well known. The former completes the sale while the latter necessitates a further document to be executed to complete the sale. An unregistered sale-deed, on registration, would convey a completed title. Before registration, therefore, it can be used as an evidence of contract for sale in a suit for specific performance of contract under Section 49, Proviso of the Registration Act. Ex. 3, therefore, ran be used is a contract for sale and the present suit is properly constituted as one for specific performance of the contract.

The next question arises whether the plaintiffs are precluded from bringing such a suit once they resorted to the machinery under Sections 71 to 76 of the Registration Act for getting the narrow relief for registration. Despite some authority to the contrary, the correct view would be that they are not precluded. It is necessary to analyse the principle. A suit for specific performance of contract is based on original cause of action arising out of breach of contract. Subject to the limitation of equitable reliefs, granted by the Court as a Court of equity, the plaintiffs are entitled to specific performance of the terms of the contract. The plaintiffs can, therefore, ask for execution of a sale-deed, registration thereof, for confirmation of possession, or, in the alternative, for recovery of possession, and, in cases of trespass or disturbance of possession, for damages. The suit is, therefore, one of comprehensive nature and conceives of larger reliefs than the exclusive one claimed in a suit under Section 77 of Registration Act. It would be fantastic to contend that when the cause of action for all the reliefs have arisen, the plaintiffs could be confined to the sole relief of getting the document registered, merely because they had resorted to the machinery under Sections 71 to 76 of the Registration Act.

So far as this Court is concerned, the matter is concluded by a Bench decision reported in Rajan Patro v. Akur Sahu, AIR 1959 Orissa 74. Though that is slightly distinguishable as the plaintiff did not approach the Sub-Registrar and there was no refusal of registration, in principle, however it makes no difference whether there was refusal or not. So far as the Patna Court is concerned, the matter is concluded by Jhaman Mahton v. Amrit Mahton, AIR 1946 Pat 62. The principle has been well discussed in Nasiruddin Midda v. Sidhoo Mia, AIR 1919 Cal 477 and in Bal Kishen Das v. Bechan Pandey, AIR 193.2 All 96. The result, therefore, is that even though a party might have resorted to the machinery under Sections 71 to 76 of the Registration Act, he is not precluded from bringing a suit for specific performance of contract for larger reliefs not conceived within the scope of Section 77 of the Registration Act. This is, however, subject to the limitations of a Court of Equity and the matter is well discussed in Rameshwar Prasad v. Anandi Devi, AIR 1960 Pat 109, where their Lordships dismissed a suit for specific performance not on the ground that such a suit did not lie but on the ground that the equitable relief would not be exercised in favour of the party when the party itself was responsible for certain laches. For instance, when the plaintiff does not come with clean hands or is responsible in causing delay in asking for equitable reliefs. That again would vary according to the facts and circumstances of each case as to whether the equitable reliefs should be granted or not.

8. Mr. Pal contends that the Subordinate Judge was wrong in directing the execution of a fresh Kabaia when the plaintiffs did not ask for such a relief. An identical point was raised in AIR 1959 Orissa 74 and their Lordships negatived such a contention as being a technical one.

9. All the contentions raised by Mr. Pal fail. Inthe result, the appeal fails and is dismissed with costs.


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