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Orissa High Court

Chintamani Mohapatra vs State Of Odisha And Others .... Opposite ... on 27 October, 2021

Author: B.P. Routray

Bench: B.P. Routray

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                                       W.A. No.749 of 2021




            Chintamani Mohapatra                          ....          Appellants
                                                        Mr. Rajjeet Roy, Advocate
                                             -versus-

            State of Odisha and Others                    ....     Opposite Parties
                                            Mr. S.N. Das, Addl. Standing Counsel

                       CORAM:
                       THE CHIEF JUSTICE
                       JUSTICE B.P. ROUTRAY


                                            ORDER

Order No. 27.10.2021

01. 1. This appeal is directed against the order dated 26th August, 2021 passed by the learned Single Judge dismissing the Appellant's W.P.(C) No.25423 of 2021 which had sought a direction to the Inspector General of Registration, Odisha and the Sub-Registrar, Ranpur to act on the Appellant-Petitioner's request for rectification of the registered gift deed.

2. The learned Single Judge has in the impugned order concluded that "cancellation of the registration" is not permissible by way of representation and therefore, there is no scope for considering the request for "cancellation of the registered deed."

3. This Court has heard the submission of Mr. Rajjeet Roy, learned counsel for the Appellant and Mr. S.N. Das, learned Additional Standing Counsel for the Respondents (State).

4. It is seen that the Village Committee on 19th April, 2015 itself acknowledged that one Shri Sadananda Gouda and another Shri Gadadhar Mohapatra had registered a piece of land in favour of the Government for construction of a Veterinary Dispensary. The village committee had acknowledged that the land in respect of which the gift deed was registered in fact belonged to the present Appellant (Chintamani Mohapatra) and it had been wrongly mentioned instead of the Kotha property. Accordingly, it was decided by the Village Committee that steps would be taken on behalf of the Committee to cancel the registered gift deed. It was further decided that Sri Sarat Kumar Mohapatra would execute the cancellation deed instead of late Sadananda Mohapatra. It was further decided that Subhakanta Mohapatra would prepare a deed for rectification and shall remain present with the two Mahajans i.e. Shri Sadananda Gouda and Shri Gadadhar Mohapatra in order to facilitate the task.

5. It is in the above background that a representation was made by the present Appellant to the Inspector General of Registration that a direction should be issued to the Sub-Registrar, Ranpur for cancelling the gift deed because a plot of land which neither belonged to the donor nor the donee and which had never been in their possession was mentioned in the gift deed that was registered. That land in fact belonged to the present Appellant.

6. Mr. Das, learned Additional Standing Counsel refers to Section 26 of the Specific Relief Act which indicates when an instrument may be rectified. The relevant portion thereof reads thus:

"26. When instrument may be rectified.--

(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then--

(a) either party or his representative in interest may institute a suit to have the instrument rectified; or

(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or

(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument. (2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-

section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.

(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.

(4) No relief for the rectification of an instrument shall be granted to any party under this section Page 3 of 5 unless it has been specifically claimed: Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim."

7. In the present case, the party who is seeking cancellation of the gift deed that has been registered was not a party to the gift deed. His property has been wrongly indicated as being the subject matter of the deed. Therefore, filing of the suit by any of the parties to the gift deed would not resolve the problem of the present Appellant. All of the parties, including the parties to the gift deed, have acknowledged that there has been a mistake. Relegating the Appellant to a civil remedy at this stage with all the facts being admitted would be a complete waste of time and lead to unnecessary complications.

8. Consequently, a direction is issued to the Inspector General of Registration (Opposite Party No.2) to issue necessary directions to the Sub-Registrar, Ranpur to examine the Petitioner's grievance petition dated 19th August, 2019 (Annexure-4) to the writ petition in the light of the resolution dated 19th April, 2015 of the Village Committee and pass an appropriate order in accordance with law. It will be open to the Sub-Registrar, Ranpur in that process to record the statements of the members of the Village Committee consistent with the statements already made in the resolution dated 19th April, 2015 to facilitate the cancellation of the registered gift deed and for registering a fresh gift deed indicating the correct property.

9. The impugned order dated 26th August, 2021 passed by the learned Single Judge is accordingly, set aside and the writ appeal is allowed in the above terms.

10. An urgent certified copy of this order be issued as per rules.

(Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge S.K. Jena/P.A. Page 5 of 5