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Motahar Ali Vs. Sk. Abdul Malek and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1198 of 1948
Judge
Reported inAIR1957Cal324,61CWN253
ActsRegistration Act, 1908 - Sections 75(2), 77, 77(1), 77(2) and 87
AppellantMotahar Ali
RespondentSk. Abdul Malek and anr.
Appellant AdvocateSarat Chandra Janah and ;Bijan Bihari Das Gupta, Advs.
Respondent AdvocateJitendra Kumar Sen Gupta, ;Nirmal Chandra Chakravarti, ;Satya Santi Mukherjee and ;Samarendra Nath Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredMafizur Rahman v. Jamila Khatun
Excerpt:
- .....which was suit no. 46 of 1944 in the court of the first munsif at basirhat under section 77 of the indian registration act. this suit was decreed on compromise on 10th november, 1944, and under the terms of the compromise baharali agreed to register the document within fifteen days; in default, the appellant was given the right to get it registered through court. baharali made default in getting the document registered, whereupon the plaintiff filed an application to court for sending it to the registration office for registration. upon that application the learned munsif deputed one of his officers to present the document to the sub-registrar together with a letter directing the sub-registrar to register the document. acting upon that letter of the learned munsif, the sub-registrar.....
Judgment:

Lahiri, J.

1. This second appeal has been brought by the plaintiff against a decree of the District Judge of 24 Perganas in Title Appeal No. 335 of 1947, reversing the decree of the Munsif, First Court, at Basirhat in Title Suit No. 61 of 1946.

2. The facts which are material for the purpose of this second appeal may be shortly stated as follows : One Baharali Mandal alias Bahadur Mandal had an occupancy holding in respect of an area of .47 acres in plot No. 334 of Mouza Nehal-pur at a rental of Rs. 4/8 as under the superior landlords Sk. Md. Abdulla and others. By a document, dated 16th January, 1943, Baharali sublet .40 acres of land held by him to the appellant at a rent of Rs. 4/8 as Although the Potta was executed by Baharali on 16th January, 1943, it was not registered by him, and the appellant presented this document for registration on 13th May, 1943. Upon registration being refused by the sub-registrar the appellant filed an appeal which was unsuccessful. Thereafter the appellant instituted a suit which was Suit No. 46 of 1944 in the Court of the First Munsif at Basirhat under Section 77 of the Indian Registration Act. This suit was decreed on compromise on 10th November, 1944, and under the terms of the compromise Baharali agreed to register the document within fifteen days; in default, the appellant was given the right to get it registered through Court. Baharali made default in getting the document registered, whereupon the plaintiff filed an application to Court for sending it to the registration office for registration. Upon that application the learned Munsif deputed one of his officers to present the document to the sub-registrar together with a letter directing the sub-registrar to register the document. Acting upon that letter of the learned Munsif, the sub-registrar actually registered the document on 3rd April, 1945. Defendant No. 2, Sk. Golam Kibria, purchased the occupancy holding of Baharali by a registered conveyance, on 3rd February, 1943, arid the conveyance by which he purchased Baharali's interest is Exhibit D. After purchasing the interest of Baharali, defendant No. 2 sublet his land to defendant No. 1 Sk. Abdul Malek by a Potta executed and registered on 26th July, 1944. This Potta is Exhibit 2. The plaintiff claims title on the basis of the Potta, dated 16th January, 1943, which according to him was validly registered under the order of the Court on 3rd April, 1945. The plaintiffs claim was resisted by the two defendants on the ground that the Potta in favour of the plaintiff was executed under coercion, and that in any case, it was not validly executed and registered, and therefore, conferred no title upon the plaintiff. There can be no doubt that the Potta in favour of the plaintiff being prior in point of time to the deed of sale in favour of defendant No. 2 the plaintiff's suit must be decreed if it is held that the Potta in his favour was validlyexecuted and registered. Both the Courts below have concurrently held that the defendants have failed to prove that the Potta in favour of the plaintiff was executed under coercion. The Trial Court further held that the Potta was validly executed and registered and made a decree in i'avour of the plaintiff. On appeal the Lower Appellate Court has come to the conclusion that though the defendants had failed to prove that the Potta was executed under coercion, the plaintiff had also failed to prove that it was properly executed. The Trial Court held that the registration of the Potta on 3rd April, 1943, was valid. The Lower Appellate Court has held that that registration is invalid on two grounds (a) that the presentation of the Potta to the sub-registrar in pursuance of the compromise decree made by the Munsif, First Court, Basirhat, on 10th November, 1944, was not valid presentation within the meaning, of Section 32 of the Indian Registration Act and (b) that in any event the document having been presented more than thirty days from the date of the decree made by the Munsif, the registering officer had no jurisdiction to register the document; and consequently the document was not validly registered. Upon the above findings the Lower Appellate Court has dismissed the suit instituted by the plaintiff.

3. Against the decree of the Court of appeal below the plaintiff has filed this second appeal, and Mr. Janah appearing in support of the appeal has raised three points before us. In the first place, Mr. Janah has contended that the finding of the Court of appeal below on the question of the execution of the Potta is not a finding in accordance with law. His argument is that the only ground upon which the Potta was challenged by the defendants was that it was obtained by coercion, and apart from coercion there was no other ground of attack upon the Potta in the Trial Court and the Court of appeal below was not justified in allowing the defendants to raise a new question of fact for the first time in the appeal in the Court of appeal below. The second point raised by Mr. Janah is that the decision of the Lower Appellate Court on the question of presentation of the document before the sub-registrar is wrong in law. His argument is that there can be no doubt that the document was in the present case validly presented before the sub-registrar under Section 32 of the Indian Registration Act on 13th May, 1943, and thereafter it was not necessary for the plaintiff to present the document afresh to the sub-registrar in accordance with Section 32, Registration Act after the decree made by the Munsif, First Court, Basirhat, in Suit No. 46 of 1944. In support of this contention, Mr. Janah invited our attention to a decision of the Privy Council in Chottey Lal v. Collector of Moradabad, AIR 1922 PC 279 (A). The third point raised by Mr. Janah is that the decision of the Court of appeal below on the question of limitation is wrong, because according to him the presentation of the document beyond the period of time prescribed by Section 77 of the Indian Registration Act is a mere defect in procedure which is curable by Section 87 of the Indian Registration Act.

4. As we have come to the conclusion that this appeal must fail on the ground of limitation, we do not think it necessary to express any opin-ion upon the other two grounds which were pressed before us by Mr. Janah.

5. On the question of limitation the position is this. Suit No. 46 of 1944 which was instituted by the plaintiff under Section 77 of the Indian Registration Act was decreed on compromise on 10th November, 1944, and in the petition of compromise which was filed in Court on 6th September, 1944, it was stated that the defendant would within fifteen days of that date get the document registered failing which the plaintiff would have the right to get it registered through Court. Although the petition of compromise was filed on 6th September, 1944, the compromise decree was actually signed by the learned Munsif on 10th November, 1944, and acting on the basis of that compromise decree the document was presented before the registering officer on 3rd April, 1945, and it was actually registered on that date.

6. Section 77 of the Indian Registration Act provides that when the Registrar refuses to order registration of a document under Section 72 or Section 76 of the Act, any person claiming under that document may institute a suit for a decree directing the document to be registered if it be duly presented for registration within thirty days alter the passing or such decree. Sub-section (2) of Section 77 provides that 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 a decree passed under Sub-section (1) of that section. Sub-section (2) of Section 75 prescribes a period of thirty days for presenting a document for registration after the order for registration has been made by the Registrar under Sub-section (1) of that section.

7. IN the case before us there can be no question that the document was presented before the sub-registrar long after the expiry of the period prescribed by Sub-section (2) of Section 75. The question is whether this is merely a defect in procedure, or it affects the jurisdiction of the sub-registrar to register the document. Mr. Janah has contended that since the decree in the present case was a compromise decree, it was open to the parties to extend the period allowed by Sub-section (2) of Section 75 for presenting the document for registration. We are unable to accept this argument as sound. We are of opinion that if a suit under Section 77 of the Indian Registration Act culminates in a compromise, the compromise must conform to the requirements of Sub-sections (1) and (2) of Section 77 read with Sub-section (2) of Section 75 of the Act.

8. The question whether non-compliance with the requirements of Sub-section (2) of sec. 75 of the Indian Registration Act is a defect in procedure or affects the jurisdiction of the registering officer has been considered by this Court in two decisions. The first one is the decision in the case of Baban Sahai v. Udit Narain, 5 Cal LJ 188 (B), where it has been held that the registering officer has no jurisdiction to register a document presented after the lapse of thirty days from the date of the order passed by the District Registrar under the first paragraph of sec. 75 of the Registration Act, even if the time for registration is extended by a subsequent order of the District Registrar. It has further been held that it is not a mere matter of procedure and a document registered after the said period of thirty days is notvalidly registered and creates no title. This decision was followed by Biswas, J. in the case of Mafizur Rahman v. Jamila Khatun, 42 Cal WN 1174 (C). In this case His Lordship has pointed out that the provisions of the Indian Registration Act regarding the time within which certain acts are to be done arc peremptory in character and are not capable of being extended in the absence of express provisions in that behalf. It was contended in the case before Biswas, J. that under Section 5 of the Indian Limitation Act the District Registrar had jurisdiction to extend time for presenting a document for registration, but that contention was not acceped. In view of these decisions of this Court which have been followed for over half a century from 1906 to 1958, we are not in a position to accept the argument of Mr. Janah that non-compliance with the requirements of Sub-section (2) of Section 75 of the Indian Registration Act is a more defect in procedure and curable under Section 87 of the Indian Regis-tration Act. As the appeal fails on this ground, we do not express any opinion on the other points raised by Mr. Janah before us.

9. In the result, this appeal is dismissed.

10. There will be no order as to costs in this Court.

Sarkar, J.

11. I agree.


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