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Smt. Padmawati and ors. Vs. Smt. Vidya Wati - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberR.S.A. No. 45 of 1973
Judge
Reported inAIR1982HP33
ActsRegistration Act, 1908 - Sections 28, 31, 38(1) and 38(2)
AppellantSmt. Padmawati and ors.
RespondentSmt. Vidya Wati
Appellant Advocate A.C. Sud and; O.P. Sharma, Advs.
Respondent Advocate R.N. Malhotra and; H.K. Bhardwaj and; Pratima Malhotra
DispositionAppeal dismissed
Cases Referred(Deity Pattabhiramaswamy v. S. Hanymayya
Excerpt:
civil - registration - respondent filed a suit claiming to have purchased disputed property - alleged that appellant had made encroachment on disputed property - appellant claimed that land was his and sale deed put up by respondent was not a valid registered document - whether sale deed can be said to be validly registered document when it was presented outside latter territorial jurisdiction - when documents effect immovable property it is necessary that it should be registered with sub-registrar within whose territorial jurisdiction either whole or part of property is situated - appeal dismissed. - .....of illegality affecting the jurisdiction of the registrar and a mere case of irregularity. if a document is presented by a person not authorised to present, it may constitute an illegality,.........defects in the procedure of theregistration and lack of jurisdiction are two different things. where the registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time, the registration would be invalid and section 87 of the registration act will not have any effect. on the other hand, if the registrar having jurisdiction has made some error in the exercise of it, section 87 takes effect.'15. these are not relevant to the question at issue and cannot be.....
Judgment:

Vyas Dev Misra, C.J.

1. This second appeal by the defendant is directed against the judgment and decree of District Judge, Simla.

2. Shrimati Vidyawati (referred to as the plaintiff) filed a suit claiming to have purchased the property known as 'Vakil Khana Koti', situate in Shankli, Simla, from the Rana of Koti vide registered sale deed dated 23rd January, 1965. Kanwar Bharat Singh (referred to as the defendant) owned some property nearby, Tha plaintiff alleged that the defendant had encroached upon a small portion of the plaintiff's land. Despite plaintiff's warning, It is alleged, the defendant put up a cow shed upon the encroached land and threatened to make further encroachments. The defendant claimed the disputed property aa his. He also alleged that the sale deed put up by the plaintiff was not a valid registered document. It was averred that this document had been presented for registration at village Kitty outside the jurisdiction of the Sub-Rsgistrar, Simla, and so could not be said to have been validly registered. The defendant also alleged that the Rana of Koti had no right or title over the land in disputeand, in the alternative, claimed adverse possession.

3. The parties were taken to trial on the following issues;

1. Is the plaintiff not the owner of the suit land and was dispossessed as alleged? O.P.P.

2. Whether the defendant became owner of the suit land by adverse possession? O. P. D.

3. Is the suit barred by limitation? O.P.D.

4. Relief.

4. The trial court decreed the plaintiff's suit as prayed except with regard to Khasra No. 325 which was held to be Gair Mumkin Sarak. The defendant's appeal was also dismissed. When this appeal came up for hearing on Nov. 7, 1974, the case was remitted to the District Judge with a direction to submit its finding on the following issue :

'Whether the document in question was presented by the Rana of Koti to the Sub-Registrar in the area forming part of the District of Simla, then situated in the State of Punjab, or outside that District in the Union Territory of Himachal Pradesh.' 5. The District Judge after recording the evidence of the parties came to the conclusion that the place where the Rana of Koti presented the sale deed for registration was outside the District of Simla. This finding is accepted by the parties.

6. The main question of law which falls for determination in the case is whether the sale deed can be said to be validly presented and consequently validly registered when it was presented for registration to the Sub-Registrar outside the latter's territorial jurisdiction? It is not in dispute that the property in respect of which the sale deed was executed was situated in the then District of Simla and the only proper office where the document could be presented for registration was the office of the Sub-Registrar of Simla. It is also not in dispute that Rana of Koti was exempted from personal appearance in court and, therefore, he had the right to present the document at his house without appearing before the Sub-Registrar.

7. The purport of requiring registration of a document is to ensure its public notice. Where a document affects immovable property, it is necessary that it should be got registered with the Sub-Registrar within whose territorial jurisdiction either the whole or a part of the property is situate. The reason is simple. Anyone wishing to deal with the property can go to the office of the Sub-Registrar concerned and find out if the property is in any way encumbered or there is any defect in the title of the person claiming to be its owner. In other words, a person can find the nature and extent of rights of persons in respect of the property, This, therefore, reduces the chances of a person wishing to buy or accept the property as a security from being cheated or defrauded.

8. Now under the law the document has to be registered with the Sub-Registrar in whose jurisdiction the property is situate. It cannot be registered with any other Sub-Registrar, In this connection Section 28 of the Registration Act may be conveniently read :

Save as in this part otherwise provided, every document mentioned in Section 17, Sub-section (1) Clauses (a), (b), (c), (d) and (e), Section 17, Sub-section (2) in so far as such document affects immovable property and Section 18, Clauses (a), (b), (c) and (cc), shall be presented for registration in the office of Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate.' 9. Section 31 requires that the document should be presented for registration at the office of the registering officer. But it also provides for an exception. The section reads :

'In ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorised to accept the same for registration or deposit :

Provided that such officer may on special cause being shown attend at the residence of any person desiring to present a document for registration or to deposit a will, and accept for registration or deposit such document or will.' 10. Section 38 exempts certain categories of persons from appearance at registration office. It reads:--

'1. (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office, or

(b) a person in jail under civil or criminal process, or

(c) persons exempt by law from personal appearance in court, and who would but for the provision next hereinafter contained be required to appear in person at the registration office, shall not be required so to appear.

(2) In the case of every such person the registering officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination.'

11. Sub-section (2) enjoins upon the Sub-Registrar to go himself to the house of a person referred to in Sub-section (1) or to issue a commission for his examination. It makes no distinction whether the place where the Sub-Registrar is required to go is within or outside his territorial jurisdiction. For example, a person who is detained in a jail outside the territorial jurisdiction of the Sub-Registrar and who wishes to have any document registered, it will be the duty of the Sub-Registrar to go to that jail. Of course, he may instead of going himself issue a commission. It has been contended that the Sub-Registrar has no right to go outside his territorial jurisdiction and he could only issue a commission. To me the contention appears to be baseless. Sub-section (2) is unambiguous and there is no necessity of reading into it something which is not there. Moreover, issuance of a commission is in the alternative. Instead of the officer going himself he has been permitted to issue a commission. The commissioner so appointed has to do the same thing which the officer could himself do. In my opinion, there is no doubt whatsoever that it is the bounden duty of the Sub-Registrar to himself go to the house or to the jail under Sub-section (2) and the presentation of a document for registration to the Sub-Registrar at the house or at the jail which happens to be outside the territorial jurisdiction of the Sub-Registrar shall not lead to improper registration or in any manner affect the validity of the registration of the document.

12. In the instant case, as already stated, the sale deed had to be presented for registration to the Sub-Registrar of Simla District since the property wassituated in Simla District. The Rana of Koti who was exempted from personal appearance in the court, was a person who was not required to appear at the registration office under Clause (c) of Sub-section (1) of Section 38. It was, therefore, the duty of the Sub-Registrar under Sub-section (2) to himself go to the house of Rana of Koti. Therefore, the sale deed in question was validly presented and has been validly registered.

13. Mr. Amar Chand Sud, learned counsel for the appellants, cites some decisions to show that only a valid presentation of a document gives jurisdiction to a Sub-Registrar. None of these admittedly relates to the circumstances with which we are concerned. In Nandeswar Chakravarty v. Mahendra Nath Sharma, AIR 1956 Assam 123, the document was presented for registration after four months of its execution and it was held that the registration was void.

14. In Mahaluxmi Bank Ltd. v. Kamakhyalal Goenka, AIR 1958 Assam 56 (at p. 63), it was ruled :

'It is always important to distinguish between a case of illegality affecting the jurisdiction of the Registrar and a mere case of irregularity. If a document is presented by a person not authorised to present, it may constitute an illegality,.........Defects in the procedure of theregistration and lack of jurisdiction are two different things. Where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time, the registration would be invalid and Section 87 of the Registration Act will not have any effect. On the other hand, if the Registrar having Jurisdiction has made some error in the exercise of it, Section 87 takes effect.'

15. These are not relevant to the question at issue and cannot be of any help to the appellants.

16. Mr. Amar Chand Sud then contends that the defendant had been in possession of the property in dispute for more than 12 years before the plaintiff brought the suit and, therefore, he has acquired a right by adverse possession. Whether the appellants have been in possession of the property or not, is aquestion of fact. It is by now well settled that howsoever erroneous a finding of fact may be, a Judge of the High Court has no jurisdiction to interfere in second appeal with the findings of fact given by the first Appellate Court based upon an appreciation of the relevant evidence (Deity Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57).

17. The appeal is, therefore, dismissed with costs.


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