Karnataka High Court
Smt Sunandamma vs District Registrar on 23 May, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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WP No.3643 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 3643 OF 2018 (GM-RES)
BETWEEN:
1. SMT. SUNANDAMMA,
W/O SHIVAKUMAR,
D/O NANJUNDAPPA,
AGED 55 YEARS.
2. SMT. AKKAYAMMA,
W/O VENKATESHAPPA,
D/O NANJUNDAPPA,
AGED 51 YEARS.
3. SMT. GAYATHRI,
W/O NARAYANASWAMY AND
D/O NANJUNDAPPA,
AGED 48 YEARS,
4. SRI. MANJUNATH N.,
S/O NANJUNDAPPA,
AGED 46 YEARS,
5. SMT. KAVITHA,
W/O NAGARAJU,
D/O NANJUNDAPPA,
AGED 39 YEARS,
6. SMT. NAGARATHNA,
W/O LATE VENKATESH,
AGED 33 YEARS,
ALL THE PETITIONERS ARE
R/A SINGAPURA VILLAGE,
VIDYARANYAPURA POST,
BANGALORE-560 097.
...PETITIONERS
(BY SRI. P.N.NANJA REDDY, ADVOCATE)
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WP No.3643 of 2018
AND:
1. DISTRICT REGISTRAR,
GANDHINAGAR REGISTRATION DISTRICT,
NO.17, MARUTHI PLAZA,
2ND FLOOR, 2ND MAIN ROAD,
VYALIKAVAL EXTENSION,
BANGALORE-560 003.
2. SENIOR SUB-REGISTRAR,
OFFICE OF YELANHANKA SUB-REGISTRAR,
YELAHANKA UPANAGAR,
BANGALORE-560 064.
3. INSPECTOR GENERAL OF REGISTRATION
AND COMMISSIONER OF STAMPS,
8TH FLOOR, KAVERI BHAVAN,
KEMPEGOWDA ROAD,
BANGALORE-560 009.
4. SMT. SHANTHAMMA,
W/O T.K.KEMPARAJU, AGED 57 YEARS,
5. SMT. K.S.SUMAN,
W/O SRI. K.T.HARISH,
D/O LATE T.K. KEMPARAJU,
AGED 31 YEARS
6. MISS K.S.SUSHMITHA,
D/O LATE K.T.KEMPARAJU, AGED 22 YEARS,
RESPONDENT NOS.4 TO 6 ARE
R/A NO.69, PIPELINE ROAD,
YEASHWANTHAPURA, BANGALORE-560 022.
...RESPONDENTS
(BY SRI. V.SHIVA REDDY, HCGP FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER AT ANNEXURE-J DATED 01.10.2016 PASSED BY
R1.
THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 10.03.2023, THIS DAY, THE COURT, PRONOUNCED THE
FOLLOWING:
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WP No.3643 of 2018
ORDER
Challenging impugned order bearing no.
JI.NO/GA.NO.JI/673/2016-17 dated 01.10.2016 (Annexure-J) passed by respondent no.1, this writ petition is filed.
2. Sri P.N. Nanja Reddy, learned counsel for petitioner submitted that land bearing Sy.no.109, new no.123 of Singapura village, measuring 1 acre (hereinafter referred to as 'petition property') belongs to petitioners. It was granted on 19.04.1978 to Nanjundappa, father of petitioners no.1 to 5 and father-in-law of petitioner no.6. After death of Nanjundappa, Khata was mutated in name of his wife Smt.Achamma, who died intestate on 10.04.2006. As such, petitioners succeeded to property.
3. It was submitted that during life time of Smt.Achamma, husband of respondent no.4 and father of respondents no.5 and 6 namely Kemparaju played fraud on her and obtained her signatures on some papers and created sale deed dated 22.02.1997. However, due to undervaluation, its registration was refused. When Kemparaju sought to interfere with their peaceful possession based on said sale deed, petitioners filed O.S.no.260/2015 seeking for declaration of their title and for permanent injunction.
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4. In suit defendant no.1 - Kemparaju filed written statement (Annexure-D) and also filed O.S.no.7015/2014 against respondents no.1 to 3 and petitioners herein for declaration that sale deed dated 22.02.1997 at Annexure-B as legal, valid and subsisting. Both suits were clubbed and presently pending on file of IX Additional City Civil Judge, Bangalore. Since Kemparaju died on 26.08.2016, respondents no.4 to 6, claiming as his legal representatives filed application under Order XXII Rule 3 of Code of Civil Procedure, 1908 (for short 'CPC').
5. Thereafter, they filed a memo stating that respondent no.1 had recalled earlier order of refusal and restored registration of sale deed. On enquiry, petitioners found that respondent no.1 had passed impugned order dated 01.10.2016 for restoration of registration of sale deed dated 22.02.1997 after setting aside order of refusal for registration.
6. It was contended that said order was passed without notice or opportunity to petitioners and was therefore illegal and arbitrary, calling for interference by this Court.
7. It was further submitted that against order of refusal to register, an appeal was available under Section 72 of -5- WP No.3643 of 2018 Indian Registration Act, 1908 within 30 days. In instant case however, impugned order is passed without appeal being preferred, merely in pursuance of representation of Kemparaju on 13.08.2015, that too after enormous delay, without application for condonation.
8. And that impugned order was passed apparently when parties were agitating their rights before Civil Court to which respondent no.1 was also a party. Therefore, impugned order was arbitrary, illegal and wholly unsustainable in law.
9. It was urged that Sub-Registrar guidance value of agricultural property in Singapura village during 1996-97 was Rupees Four Lakhs per acre. Therefore, sale deed was grossly undervalued. But on ground of original deed remaining unclaimed for more than 2 years, it was destroyed as per Rule 220 of Registration Rules. But as undervaluation was endorsed on each page of said deed, without complying with procedure under Section 45A, impugned order would be highly irregular calling for interference.
10. It was submitted, fact that sale deed dated 22.02.1997 was fraudulently created could also be gauged from reference to khata no.IHC no.7/96-97 referred to in sale deed, which did not belong to her at all, but belonged to Sri Gangaiah -6- WP No.3643 of 2018 S/o Beeraiah in respect of Sy.no.55 and their ancestor Ramchandrappa S/o late Gangaiah. It was contended that since registration of original deed was refused and same was later destroyed as per orders of District Registrar, there was no sale deed in eye of law. Such being case, contention of respondents no.4 to 6 about petitioners having executed confirmation deed on 22.06.2013 as per Annexure-R3 would be grossly unsustainable and illegal.
11. Further, even their contention that as per order of Tahasildar on 27.03.2003, revenue records were transferred in name of Kemparaju, would be uncharitable, as said order was set-aside by Assistant Commissioner, who directed Tahasildar to mutate name of petitioner. Though, revision petition against said order was allowed, this Court in W.P.no.3682/2020, disposed of on 25.02.2020 had subjected mutation entries to final result of pending suits. Said order was modified in W.A.no.407/2010, disposed of on 07.04.2021 by directing parties to maintain status-quo regarding revenue entries till disposal of suit.
12. It was also contended that respondents - State authorities filed written statement in O.S.no.7015/2014 opposing suit as not maintainable on ground that document -7- WP No.3643 of 2018 submitted for registration was destroyed and respondents no.4 to 6 had no right for relief of declaration. However, after period of 18 years, Kemparaju, filed application before District Registrar and as stated above, without issuing notice to petitioners impugned order was passed virtually decreeing suit filed by respondents. Order passed during pendency of Civil Suit adjudication of rights of parties was highly irregular calling for interference.
13. It was submitted that above facts and circumstances did not justify invocation of power under Section 68(2) and impugned order would be totally contrary to law, and therefore, learned counsel sought for allowing writ petition.
14. On other hand, Sri T. Seshagiri Rao, learned counsel appearing for respondents no.4 to 6 submitted that writ petition filed by petitioners was not maintainable either in law or on facts. It was submitted that petitioners lacked locus standi to question impugned order after having executed a register Consent Deed dated 22.06.2013 by receiving additional sale consideration and confirming earlier sale deed dated 22.02.1997 executed by their mother Smt.Achamma. -8- WP No.3643 of 2018
15. It was submitted that impugned order was passed in exercise of powers available under Section 68(2) of Indian Registration Act, to rectify error committed by subordinate officer and same could not be questioned by third party such as petitioners. Even insofar as mutation of record of rights, petitioners had filed affidavit before Tahasildar declaring no objection for transfer in name of purchaser.
16. It was further submitted that restoration of sale deed preceded by notice issued by Kemparaju under Section 80 of CPC and a complaint dated 13.08.2015 filed before respondent no.3 requesting for suitable steps for restoration of sale deed. In pursuance of same and after daughter of Kemparaju (who had died in meanwhile) furnished certified copy of sale deed dated 22.02.1997, Sub-Registrar restored sale deed. Therefore, restoration was after following due procedure and did not call for interference.
17. It was further submitted that as petitioners had already filed comprehensive suit for declaration of title and for injunction, appropriate remedy for petitioners lie in pursuing suit and not by invoking extraordinary jurisdiction for adjudication of disputed question of fact and title of parties with regard to immovable property.
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18. It was further submitted that endorsement made by Sub-Registrar on sale deed clearly stated that all formalities for registration were completed and registration certificate could not be issued on same day due to paucity of time. Since completion of all formalities of registration was an internal matter, exercise of power under Section 68(2) by respondent no.1 in facts and circumstances of this case was fully justified and lawful. It was further submitted that though original deed was destroyed in compliance with Rule 220, Rule 36A as amended with effect from 15.10.1986, provided procedure for reconstruction of lost/destroyed documents on basis of available record. Hence, it was submitted that impugned order was justified and writ petition was liable to be dismissed.
19. Sri V. Shiva Reddy, learned High Court Government Pleader appearing for respondents no.1 to 3 sought to justify impugned order. It was submitted that sale deed executed by Smt.Achamma in favour of Kemparaju and presented for registration before Sub-Registrar, Yelahanka on 22.02.1997. Said document though registered as no.5226/1996-97, certificate of registration was not issued under Section 60 of Registration Act, 1908 for want of time as clearly endorsed on
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WP No.3643 of 2018said deed. Later, on report of Tahasildar dated 12.08.1997, that land in question was Government Gomal land, registration was refused on 25.09.1997. But, no records were available for having communicated order of refusal to purchaser.
20. Thereafter on 18.12.2001, Sub-Registrar sent document to District Registrar as unclaimed document under Rule 220 of Karnataka Registration Rules, 1965, for being destroyed under Rule 222. Thereafter same was destroyed. Subsequently, by letter dated 18.08.2016, Kemparaju requested respondent no.3 to set aside order of refusal as it was not communicated to him.
21. On detailed enquiry and on finding that refusal to register was not communicated, respondent no.3 directed respondent no.1 to take steps for its restoration. In furtherance of said direction, impugned order was passed and same was in accordance with law.
22. It was submitted that once a document was registered either rightly or wrongly, registering authority had no jurisdiction to refuse or cancel registration. It was submitted that since petitioners had filed O.S.no.260/2015 for relief of declaration of title and injunction, they were required to pursue
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WP No.3643 of 2018same. It was also submitted insofar as endorsement regarding undervaluation that real reason for refusal of registration was not undervaluation but report of Tahasildar and in case of any deficit in stamp duty or undervaluation, action would be taken under Section 45A of Karnataka Stamp Act, 1957.
23. In support of submission that refusal to register document on basis of report of Tahasildar would be contrary to law, reliance was placed on decision in case of Sulochanamma v/s H. Nanjundaswamy1, and Abid v/s Revenue Divisional Officer, Ottapalam2.
24. Heard learned counsel, perused impugned order and writ petition record.
25. From above submissions, it is noticed that there is title dispute between parties in respect of petition property wherein petitioners have filed O.S.no.260/2015 for declaration of their title and for permanent injunction while respondents no.4 to 6 herein have filed O.S.no.7015/2014 against respondents no.1 to 3 and petitioners herein for declaration that sale deed dated 22.02.1997 as legal, valid and subsisting. 1 2001 (1) KLJ 215 2 AIR 2010 Ker. 166
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WP No.3643 of 2018
26. In this writ petition however, dispute between parties is regarding legality of order dated 01.10.2016 (Annexure-J) passed by respondent no.1 during pendency of above mentioned suits.
27. While petitioners contend that impugned passed by respondent no.1 is illegal on ground that order refusing registration was appealable under Section 72 of Registration Act, and order was passed without appeal being filed. It is also questioned on ground of violation of principles of natural justice as affected parties were not heard. It is also contended that destruction of original sale deed was prior to completion of all formalities of registration. Therefore, in absence of original sale deed merely by passing impugned order registration could not be restored. Under above circumstances, it is contended that invocation of power under Section 68(2) of Registration Act was not proper exercise of discretion.
28. Respondents, however, seek to justify it on ground that after execution of sale deed on 22.02.1997, Vendor - Smt. Achamma had executed rectification deed dated 24.06.1997, which was duly registered and thereafter on 22.06.2013, even petitioners had executed deed of consent in
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WP No.3643 of 2018favour of Sri Kemparaju. They also contend that there were no proceedings held under Section 45-A of Karnataka Stamp Act for undervaluation and concern about demised property being gomal land was set at naught by Special Deputy Commissioner. It is contended that on 22.02.1997, all formalities of registration were completed, except issuance of original sale deed, which was delayed due to heavy rush of registration. While purchasers were under impression that when they were awaiting issuance of notices of undervaluation proceedings and only after securing information from respondents about status of their sale deed, they gave notice under Section 80 of CPC, in pursuance of which impugned order was passed upon due consideration of fact that reasons stated for refusal of registration were untenable and also on being satisfied that it was fit case to invoke Section 68(2) of The Registration Act.
29. From above, it is seen that on representation / application given by Sri T.K. Kemparaju, on 13.08.2015, Inspector General of Registration and Commissioner of Stamps, by letter dated 03.09.2015 called upon District Registrar, Gandhinagar, Bengaluru to submit report. In pursuance of same, after obtaining report from Sub-Registrar, Yelahanka, impugned order was passed. As recorded in impugned order,
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WP No.3643 of 2018respondent no.2-Senior Sub-Registrar, Yelahanka submitted report (@Ref.no.4) in impugned order that after recording of attendance and noting receipt of fees for registration, sale deed dated 22.02.1997 was registered as document no.5226/1996-
97. But, on account of large number of documents for registration, copies were not made and entered in register. Said report further states that pending investigation regarding undervaluation was endorsed on each page of sale deed, which was also stated in index register with note regarding refusal for registration dated 25.09.1997. Thereafter it was entered in Register of unclaimed documents. Only after submission of application by Sri T.K. Kemparaju on 13.08.2015, status of said sale deed was traced.
30. It is also stated in impugned order that respondent no.2 obtained endorsement from District Registrar, Rajajinagar, about non-initiation and pendency of any proceedings for undervaluation and information provided by Tahsildar that demised property was not gomal land, order of refusal of registration without opportunity ostensibly entering into title dispute between parties would be contrary to provisions of Section 23, 25, 34, 35, 58 and 59 of Registration Act, and
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WP No.3643 of 2018therefore apt for being set-right exercising power under Section 68(2) of Registration Act.
31. From above, it is not in dispute that sale deed dated 22.02.1997 stated to have been executed by Smt.Achamma, was presented for registration before respondent no.2. As required, under Section 52, 53 and 58 of Registration Act were recorded. However, procedure mandated under Section 60 and 61 etc., of Registration Act, were not completed on suspicion about property being gomal and also on suspicion of undervaluation. Consequently, it was endorsed on document as 'registration refused' on 25.09.1997. Thereafter document remained as 'unclaimed documents'. Subsequently, as a matter of course, under Rule 220 of Registration Rules, sale deed dated 22.02.1997 came to be destroyed.
32. When refusal of registration is endorsed on a deed, question requires consideration is, whether exercise of power under Section 68(2) of Registration Act for declaring such refusal as illegal would be justified?
33. Admittedly, there is specific provision for appeal against order of refusal of registration in Section 72 of Registration Act. While under Section 68 of general
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WP No.3643 of 2018superintendence and control is conferred on Registrar over Sub-Registrars. It is settled law that only in absence of specific provision, general provision can be invoked [K.K. Veluswamy Vs. N Palanisamy, reported in (2011) 11 SCC 275].
34. In instant case, it is seen that beneficiary of sale deed dated 22.02.1997 namely, Sri. T.K. Kemparaju himself had filed O.S.no.7015/2014 for declaration about said sale deed being legal, valid and subsisting. Said relief was sought not only against petitioners herein, but also against respondents no.2 who was arrayed as defendant no.2 in O.S.no.7015/2014. Impugned order is passed after filing of said suit and entering appearance virtually leading to decree of suit would be highly questionable. Fact that it was passed in furtherance of representation without notice to petitioners in absence of any specific reason assigned would be wholly irregular and arbitrary.
35. While, it would normally be justified for registering authorities for exercising all powers dealing with registration and it's procedures, passing of orders amounting to decision on title would invite judicial review.
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WP No.3643 of 2018
36. Fact that impugned order was passed in pursuance of a representation dated 13.08.2015 which was submitted 18 years after date of presentation of sale deed for registration without proper explanation for delay and laches would also render impugned order arbitrary.
37. Insofar as contention that subsequently petitioners had executed consent deed in favour of defendant no.1 on 22.06.2013 would not stand to reason as same would also be subject to final outcome of comprehensive suits for declaration filed by both parties.
38. Reliance on decisions in Sulochanamma's case and Abid's case (supra) would not be justified. Though, it was held in both cases that order of refusal for registration by registering authorities was bad in law, neither case involved invocation of power under Section 68 of Registration Act.
39. Even contention that as there was no adjudication, there was no requirement of notice would require to be stated only for being rejected as in facts and circumstances of this case, wherein both parties are entrenched in title dispute over schedule property by filing suits against each other. It would be different if aggrieved party were to have resorted to appeal under Section 72 of Registration Act, by explaining delay.
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WP No.3643 of 2018
40. Wherefore, impugned order would be arbitrary and unsustainable.
Hence, writ petition is allowed, impugned order bearing no. JI.NO/GA.NO.JI/673/2016-17 dated 01.10.2016 (Annexure-J) passed by respondent no.1 is quashed.
Sd/-
JUDGE GRD