Delhi District Court
Rajesh Kumar vs Sub-Registrar-Ix (S-W) on 7 September, 2022
Suit No. 16385/2016 1
IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 16385/2016
Rajesh Kumar
S/o Sh. Bishambar Nirmal,
R/o H. No. 337, Sunlight Colony no. 1,
New Delhi-110014
.....Plaintiff
Versus
Sub-Registrar-IX (S-W)
District South-West,
Old Terminal Tax Building,
Kapashera,
New Delhi-110037
.....Defendant
SUIT UNDER SECTION 77 OF THE REGISTRATION ACT,
1908
DATE OF INSTITUTION : 22.12.2015
DATE OF RESERVING THE JUDGMENT : 05.09.2022
DATE OF DECISION : 07.09.2022
JUDGMENT
1. The plaintiff has filed the present suit under Section 77 of the Registration Act, 1908 seeking directions to Sub-Registrar-IX to Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 2 register the sale deed dated 28.04.2014 executed by the co-owners of the land with respect to 5/36 th share (1 Bigha 12 Biswas 10 Biswansi) in land admeasuring 11 Bighas 14 Biswas bearing Mustatil no. 3, Killa Nos. 1 (4-10), 2(4-16), 9/1(2-08) situated in the revenue estate of village Jhatikra, Tehsil Kapashera, New Delhi through plaintiff herein to sell their undivided share in the said land to M/s Synergy Infradevelopers LLP, through its partner Mr. Rohit Chechi. PLAINT
2. In the plaint of this suit, the plaintiff had pleaded that the plaintiff Mr. Rajesh Gupta, AR of the co-owners of land to the extent of 5/36th share in land admeasuring 11 Bighas 14 Biswas bearing Mustatil no. 3, Killa Nos. 1 (4-10), 2(4-16), 9/1(2-08) situated in the revenue estate of village Jhatikra, Tehsil Kapashera, New Delhi (hereinafter referred to as the 'said land') vide registered General Power of Attorney dated 28.04.2014 having registration no. 994, before Sub-Registrar-IX, New Delhi, executed by the co-owners of the said land, namely, Sh. Mittar Sen and Sh. Ashok, both sons of late Sh. Bhim Singh (5/108th share), Sh. Virender Singh, Sh. Sunder Singh and Sh. Mukesh Singh, all sons of late Sh. Munshi Ram (having 15/432 share), Smt. Jagroshani, W/o late Sh. Satpal and Ms. Monica and Ms. Anisha, daughters of late Sh. Satpal (having 5/432 share) as well as Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 3 registered General Power of Attorney dated 28.04.2014, having registration no. 995, before Sub-Registrar-IX, New Delhi, executed by Sh. Deep Chand, S/o Sh. Hardayal, having 5/108 th share in the said land.
3. The plaintiff has further averred that vide the abovesaid GPAs, the co-owners of the said land authorised the plaintiff herein to sell their undivided share in the said land to M/s Synergy Infradevelopers LLP, having its registered office at 4, Friends Colony (West), New Delhi-65, through its partner Mr. Rohit Chechi, S/o Sh. Nirmal Singh Chechi, R/o C-24, South Extension Part-I, New Delhi-
49.
4. It is further averred in the plaint that pursuant to the execution of the aforesaid GPAs, a sale deed dated 28.04.2014 was executed by the co-owners of the said land, through plaintiff herein, in favour of M/s Synergy Infradevelopers LLP, through its partner Mr. Rohit Chechi, in respect of the said land. The requisite stamp duty was also paid in respect of the sale deed.
5. Further, Sh. Satpal Singh, predecessor-in-interest of 3 co-sharers in the said land had passed away on 05.01.2008 and thereafter, the right, title and interest of the said land devolved upon Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 4 his wife Mrs. Jagroshini and his 2 daughters, Ms. Monica and Ms. Anisha and became the co-owners thereof.
6. It has also been averred in the plaint that the LRs of late Sh. Satpal applied for mutation on 12.02.2014 in order to sell their share in the said land as the same would be required for the purely administrative purpose of obtaining NOC under Delhi Land (Restriction on Transfer) Act, 1972. The said mutation was sanctioned on 27.08.2014 and the LRs had received the updated Fard/Khatauni on 06.09.2014. LR Mrs. Jagroshini filed for a status report/NOC on 09.09.2014 and received the same bearing no. 6882 on 11.11.2014.
7. The plaintiff herein also avers that on 09.12.2014, he presented the sale deed dated 28.04.2014 in favour of M/s Synergy Infradevelopers LLP to the Sub-Registrar-IX for registration and a registration fee of Rs. 35,100/- was also deposited vide receipt no. 18509. However, on 15.12.2014, the Sub-Registrar-IX vide order no. F/SR-IX/DC(SW)/Refusal/2014/1833-34 refused to register the said sale deed for being time barred.
8. Further, it has been averred in the plaint that an appeal under Section 72 of the Registration Act, 1908 bearing appeal no. 142/14 titled 'Rajesh Kumar Vs. SR-IX' was filed by the plaintiff Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 5 herein on 26.12.2014 before the Registrar/District Magistrate, Distt. South-West, against order dated 15.12.2014 passed by the Sub- Registrar-IX. However, the same was dismissed vide order dated 20.10.2015 negativing the contention of the appellant/plaintiff herein, that it was due to administrative delays on part of the revenue authorities that the requisite status report/NOC could not be obtained well within time, thus, the sale deed was presented for registration belatedly on 09.12.2014 before the Sub-Registrar-IX.
9. It is also averred in the plaint that although the sale deed was executed on 28.04.2014 and presented for registration, it was refused to be registered as the requisite status report/NOC had not been obtained by Mrs. Jagroshni, W/o Late Sh. Satpal. It has been further averred that the prolonged delay was caused by the revenue authorities themselves, in first sanctioning mutation and then in giving the status report/NOC and therefore, as per plaintiff, the present case is a fit case for condonation of delay under Section 25 of the Registration Act, 1908 for the registration of the said sale deed.
WRITTEN STATEMENT, REPLICATION,
ADMISSION-DENIAL OF DOCUMENTS AND
FRAMING OF ISSUES
10. A perusal of the Court file reveals that the
Rajesh Kumar Vs. Sub-Registrar-IX
Suit No. 15693/2016 6
summons was ordered to be issued qua the defendant, on 23.12.2015, and Written Statement was filed by the defendant on 11.07.2016, however, replication was not filed on behalf of the plaintiff.
11. In the WS, the defendant took the plea that it was only the Registrar who can condone the delay and once the Registrar had refused to condone the delay, the Sub-Registrar could not register the document.
12. Proposed issues were filed by the parties. No admission- denial of documents was conducted by the parties. On 26.11.2018, following issues were framed:
(I) Whether plaintiff is entitled to decree directing Sub-
Registrar-IX to register sale deed dated 28.04.2014? (OPP) (II) Whether plaintiff's suit is not maintainable in view of non-joinder of Registrar being necessary and only party? (OPD) (III) Whether plaintiff's suit is not maintainable in view of absence of application for condoning delay in presenting the document for registration as per requirement of Section 25 of The Registration Act, 1908? (OPD) (IV) Relief.
No other issue arose or was pressed for. Issues no. (II) and (III) were directed to be treated as preliminary issues and matter was proceeded Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 7 for submissions/arguments on preliminary issues and plaintiff's evidence.
EVIDENCE LED BY THE PARTIES
13. On 03.07.2019, PW-1 Sh. Rajesh Kumar tendered his evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:
(I) Ex. PW-1/1 i.e. certified copy of GPA dated 28.04.2018 bearing registration no. 994;
(II) Ex. PW-1/2 i.e. certified copy of GPA dated 28.04.2018 bearing registration no. 995;
(III) Ex. PW-1/3 i.e. copy of sale deed along with registration performa;
(IV) Ex. PW-1/4 i.e. certified copy of receipt of registration fees of sale deed;
(V) Ex. PW-1/5 i.e. certified copy of application for issuance of status report/NOC;
(VI) Ex. PW-1/6 i.e. certified copy of status report/NOC dated 11.11.2014;
(VII) Ex. PW-1/7 i.e. certified copy of order dated 15.12.2014;
(VIII) Ex. PW-1/8 i.e. certified copy of court proceedings before Registrar (SW) and, Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 8 (IX) Ex. PW-1/9 i.e. certified copy of order dated 20.10.2015 passed by Registrar (SW).
PW-1 was not cross examined as none was present on behalf of defendant. No other witness was examined and PE was closed on 03.07.2019 vide separate statement of Sh. Rajesh Kumar and matter was proceeded for final arguments as the defendant, despite appearing on various dates, never filed any list of witnesses or moved any other application to lead defendant's evidence. In any case, the facts were not disputed and the only defence was that the Sub-Registrar-IX i.e. the defendant was not the proper party to the suit. CONTENTION OF PARTIES
14. Written submissions were filed on behalf of plaintiff and reference was made to order dated 28.05.2015 passed by ADM, South-West in Appeal No. 142/14 titled Rajesh Kumar Vs. Sub- Registrar-IX specifying reason behind late issuance of NOC.
15. The perusal of past order sheets would reveal that Ld. Counsel for plaintiff had adverted to para 5 of impugned order dated 20.10.2015 passed by Registrar, South-West, Kapashera, New Delhi declining plaintiff's request for relief under Section 25(1) of the Registration Act, 1908 and submitted that plaintiff, having applied for mutation on 12.02.2014, could not be faulted for delay in mutation Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 9 which was sanctioned on 27.08.2014 in support of plaintiff's suit for directing Sub-Registrar-IX to register sale deed dated 28.04.2014 executed by Shri Rajesh Kumar and other co-owners of agricultural land in favour of M/s Synergy Infradevelopers LLP through its partner Mr. Rohit Chechi.
16. Perusal of file reveals that in this matter, earlier arguments were advanced before the Ld. Predecessor Court, however, none have appeared before this Court despite several opportunities. Therefore, final arguments on behalf of parties could not be heard and matter was proceeded for passing of orders/judgment on the basis of the record and the written submissions of the plaintiff. ISSUE WISE FINDINGS
17. I have perused the record and heard the parties as well as perused the written submissions filed by both parties. ISSUE NO. 2
18. Section 77 of the Registration Act is held as under:
"77. Suit in case of order of refusal by Registrar- (1) Where the Registrar refuses to order the document to be registered, under Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 10 section 72 or section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree. (2) 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 any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit."
19. The suit lies under section 77 of the Registration Act, 1908 only against the order of refusal of the Registrar. In the present case, it is crystal clear that the Sub-Registrar had noticed delay in the presentation of the sale deed which had been executed in the month of April 2014 but was only presented in the month of December 2014. In such cases, as per section 25 of the Registration Act, 1908, it is only the Registrar who can condone the delay and in fact, the Sub-Registrar can only refer the case for condonation if the document is presented after four months of execution but before eight months have elapsed from the date of execution. In such cases, the delay can be condoned Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 11 along with payment of fine provided that there was an urgent necessity or unavoidable accident. However, in suits under section 77 of the Registration Act, 1908, merely because the Registrar is the competent person to register the document, does not mean that he is the necessary party to the suit.1 Therefore, I find that the suit is maintainable as against the Sub-Registrar and this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3
20. This issue is also decided in favour of the plaintiff and against the defendant. A reading of the order of refusal by the Registrar would show that the Registrar had considered the Memorandum of Appeal to be the application for condonation of delay and thereafter, he had dealt with the appeal on merits. Therefore, I find that the present suit is maintainable and there is no need for the plaintiff to have moved a separate application for condonation of delay at the time of presentation of the sale deed. ISSUE NO. 1
21. Now, the question comes whether the suit of the plaintiff 1 Reference can be had to Sanjiva Row's Registration Act, 10th edition, 2002, p. 804. Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 12 should be decreed and the Registrar should be directed to register the sale deed dated 28.04.2014. In K. Soukath Ali and Ors. Vs. Sub- Registrar (2018) SCC OnLine Med 10227, the Hon'ble High Court of Madras has observed that "........It is relevant to extract Section 25 of the Registration Act which reads as follows:
"25. Provision where delay in presentation is unavoidable:-
(i) If, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time herein before prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration."
6. The scope of Section 25 of the Registration Act came up for consideration in 2011(2) MLJ 57- Rasammal Vs. Pauline Edwin and others wherein, at paragraph No.93, it has been held as follows :
"93. In this connection, it is to be stated that Section 25 of the Registration Act provides a exception, viz., Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 13 that if owing to urgent necessity or unavoidable accident, a document has not presented till after the period of four months the Registrar, in cases where the delay in presentation does not exceed four months, may direct that such document shall be accepted for registration. In a case, the document on which the Defendant claims that it has been presented for Registration beyond four months from the date of his execution, the burden, therefore, heavily lies on the defendant to establish that the requirement of law has been fulfilled, before it can be assumed by any Court that the document has been registered within the meaning of Section 25 of the Indian Registration Act. One cannot say that a presumption must be raised in favour of the defendant under Section 114 of the Indian Evidence Act, in view of the Registration Act shows that the District Registrar has the power to condone the delay in the presentation of a document for registration, for a period of four months after the lapse of the period of four months from the date of execution of the said document and he is competent and authorised to exercise his discretion in this matter by levying a appropriate fine thereto. There is nothing in the Registration Act to prevent a party Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 14 from applying to the Registrar to excuse the delay, if the Registrar condones the delay, then in the words of Section 25 he may direct that such document may be accepted for registration. In short, the Registrar has given the discretion under Section 25 of the Act to decide whether there has been an urgent necessity or unavoidable delay which let to the delay in presentation of the document for registration. Certainly, it is not the domain of the Civil Court in a suit filed under Section 77 of the Act to sit an Appeal over its decision in such discretionary matter, when no such appeal is allowed by the provisions of the Act as per decision in Abdul Ghafoor v. Ganga Bux Singh (1950) 5 D.L.R. (AII)340."
22. Therefore, it appears that the law is that under section 25, it is for the Registrar to decide whether there was any urgent necessity or unavoidable accident which led to the delay and it is not for the civil court in a suit under section 77 of the Registration Act, 1908, to sit in appeal over the decision of the Registrar in the discretionary matter.2 Under Section 77 of the Registration Act, 1908, the Court is only to see whether the document executed is genuine and has been validly executed by the parties. Even otherwise, I find that the Registrar has, vide order of refusal dated 2 Reference can also be had to Sanjiva Row's Registration Act, 10 th edition, 2002, p. 805 wherein also the author has relied on the following authorities i.e. Durga Singh v. Mathura Das, I.L.R. 6 All. 460 : 4 A.W.N. 173; Kanhayalal v. Sardar Singh, I.L.R. 29 All. 284 : 4 A.L.J. 171; Isak Mohammad v. Bai Khatija, I.L.R. 6 Bom. 96; Sultan Nawab Jung v. Rustamji Nanabhoy, I.L.R. 21 Bom. 704; Abdul Hossain v. Ghulam Hossain, I.L.R. 30 Bom. 304.
Rajesh Kumar Vs. Sub-Registrar-IX Suit No. 15693/2016 15 20.10.2015, taken into account all necessary circumstances and passed the speaking order with respect to the existence of urgent necessity and unavoidable accident which is condition precedent for the condonation of delay under section 25 of the Registration Act, 1908. Therefore, the present suit of the plaintiff cannot be decreed. No judicial precedent authority has been placed by the plaintiff which contradicts the judgment of the Hon'ble High Court of Madras. Therefore, this issue is decided against the plaintiff.
RELIEF
23. Therefore, the suit of the plaintiff is dismissed. No orders as to cost.
24. Decree sheet be prepared accordingly.
25. File be consigned to Record Room after due compliance. Digitally signed
DIVYANG by DIVYANG
THAKUR
THAKUR Date: 2022.09.07
16:24:38 +0530
Announced in the open court (Sh. Divyang Thakur)
On 07.09.2022 ADJ-03/South West
Dwarka / New Delhi
Note: This judgment is having 15 pages and each page is bearing my signatures. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2022.09.07 16:24:46 +0530 (Sh. Divyang Thakur) ADJ-03/South West Dwarka / New Delhi Rajesh Kumar Vs. Sub-Registrar-IX