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Mahomed Siddik and ors. Vs. Edun - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal150
AppellantMahomed Siddik and ors.
RespondentEdun
Cases ReferredSheikh Rahmatulla v. Sheikh Sariutulla Kagchi (l B.L.R. F.B.
Excerpt:
suit to compel registration - registration act (iii of 1877), sections 73 and 77. - .....dismissed it upon that amongst other grounds. the district judge on appeal has overruled the munsif's decision upon this point. we are of opinion that the munsif's decision upon this point is correct.4. we entirely agree in the reasons given by the allahabad high court in bhagwan singh v. khuda baksh i.l.r. 3 all. 397 which supports the munsif's view of the law. under the registration act of 1877, such a suit as this is maintainable only when the provisions of section 77 have been complied with. the district judge, relying upon a decision of ram ghulam v. chotey lal i.l.r. 2 all. 46, was of opinion that the sections of the registration act are merely permissive, and that a suit of this nature is maintainable, although, it does not come within the purview of section 77. the decision.....
Judgment:

Mitter, J.

1. This is an appeal against the decree of the District Judge of Patna, reversing the decision of the Munsif, by which the plaintiff's suit was dismissed. The decree appealed against is in these words: Defendant must cause registration of the deed and delivery of it, and put the plaintiffs in possession of the thing sold, and then plaintiffs will pay to her, or into Court, the Rs. 20 still due.'

2. The plaintiffs brought this suit to compel the defendant to register a mokurari patta alleged to have been executed by her in their favour. It was alleged in the plaint that the defendant agreed to grant a mokurari patta of the property in dispute on a bonus of Rs. 100; that, according to this agreement, a mokurari patta was executed by the defendant on the 27th of January 1880; that, on that date, Rs. 80, out of Rs. 100, were paid, and the mokurari patta was made over to the plaintiff's; that the said document was filed by the plaintiffs in the Sub-Registry Office at Patna on the 31st of January 1880; that the defendant, in accordance with a summons issued upon her by the Sub-Registrar, appeared before that officer and denied the execution of that document. The Sub-Registrar, on the 9th of February following, refused registration. Against the order of the Sub-Registrar the plaintiffs preferred a complaint to the Registrar, by a petition dated the 8th April 1880. The Registrar, on the 28th of May 1880, refused to adjudicate upon the complaint, and rejected the application as it was made more than thirty days after the Sub-Registrar's refusal. Then the present suit was brought on the 5th of June 1880.

3. The question raised in the lower Court was, whether, under the circumstances stated above, the suit was maintainable. The Munsif being of opinion that the suit was not maintainable, dismissed it upon that amongst other grounds. The District Judge on appeal has overruled the Munsif's decision upon this point. We are of opinion that the Munsif's decision upon this point is correct.

4. We entirely agree in the reasons given by the Allahabad High Court in Bhagwan Singh v. Khuda Baksh I.L.R. 3 All. 397 which supports the Munsif's view of the law. Under the Registration Act of 1877, such a suit as this is maintainable only when the provisions of Section 77 have been complied with. The District Judge, relying upon a decision of Ram Ghulam v. Chotey Lal I.L.R. 2 All. 46, was of opinion that the sections of the Registration Act are merely permissive, and that a suit of this nature is maintainable, although, it does not come within the purview of Section 77. The decision cited by the learned Judge fully supports his view; but with deference to the learned Judges of the Allahabad Court, we find ourselves unable to agree in the view of the law taken in that case.

5. The most formidable objection to the maintenance of a suit of this nature lies in the circumstance that, under the Registration Act, the mokurari patta cannot be received in evidence, because it has not been duly registered under its provisions. The patta being not receivable in evidence, the main allegation upon which the plaintiffs' suit is based, viz., that a mokurari grant was made, is not capable of proof. It was upon this ground that a Full Bench of this Court, in the case of Sheikh Rahmatulla v. Sheikh Sariutulla Kagchi (l B.L.R. F.B. 58) held, that a suit like the present would not lie.

6. Then again, under Section 34 and Section 23 of the Registration Act of 1877, the Registering Officer is prohibited, subject to certain specified exceptions, from registering a document, unless it be presented for registration, and unless the persons executing such document or their representatives, assigns or agents authorized under the Act, appear before him within four months from the date of its execution. It may be that that period may lapse before a decision is arrived at by a Civil Court in a suit of this description. Should the Court in that case direct the Registering Officer to register the document in spite of the provisions of the Registration Act

7. Similarly, under the second para, of Section 71, a Registering Officer, after he has refused registration, and endorsed on the document the words 'registration refused,' is prohibited from accepting for registration a document so endorsed unless and until, under the provisions contained in the Act, the document is directed to be registered. In the place of this prohibition, is the Civil Court competent to direct the registration of a document, although no steps have been taken under the provisions of the Registration Act to obtain an order for registration

8. These considerations clearly show that a suit like the present, independently of Section 77 of the Registration Act, will not lie.

9. In this case the plaintiff's cannot succeed under Section 77 of the Act, because they did not comply with the conditions precedent to the maintenance of a suit under that section. But it has been said that those conditions were complied with, because an application was made to the Registrar complaining of the Sub-Registrar's order refusing registration. This argument is not valid; the application referred to above was not made within the time allowed by the Act. Under these circumstances, we are of opinion that it cannot be said that the plaintiffs have complied with the conditions precedent for the maintenance of a suit under Section 77.

10. The decision of the Munsif was, therefore, right; and the District Judge was in error in reversing it. The appeal is decreed with costs.


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