@JUDGMENTTAG-ORDER
U.C. Maheshwari, J.@mdashThe Order of the Court was delivered by:-Under Article 226 of the Constitution of India the petitioner/applicant has challenged the tenability and sustainability of Order bearing No.3408/Takniki/2008 dated 15.9.2008 (Annexure P-1) passed by Inspector General, Registration Bhopal dismissing his application, filed against the order dated 28.6.2008 passed by the Sub-Registrar dismissing his application for recording the cancellation of some registered documents, and held that u/s 69 of Registration Act (in short "the Act"), he has been vested only the powers of general superintendence over the registration offices and to make Rules in that regard and is not empowered to hear any proceedings against the order of Sub Registrar and directed the applicant to approach the competent court in that regard.
2. The facts giving rise to this petition in short are that the petitioner herein filed an application dated 4.2.2008 in the office of Sub- Registrar, Bhopal for cancellation of registered documents dated 9.8.2001, 21.4.2004 and 11.7.2006 registered with respect of immovable property i. e. Plot No.7-B Punjabi Bagh, Raisen Road, Bhopal. According to such application such plot was allotted to his mother Smt. Veeravali Anand by respondent No.4 Punjabi Housing Co-operative Society Ltd. Bhopal (In short "The Society"), vide sale deed dated 22.3.1962 registered on 30.3.1962. Smt. Veeravali Anand, died on 12.6.1988. Subsequent to her death the respondent No.4 Society through it is office bearer by executing a extinguished deed dated 9.8.2001 unilaterally cancelled the aforesaid allotment and thereafter on strength of such extinguished deed again executed a registered sale deed dated 21.4.2004 in favour of respondent No.5 Smt. Manjit Kaur who later on her tem executed another sale deed dated 11.7.2006 in favour of respondent No.6 and 7 Smt. Meenakshi and Shri S. C. Shanna. Such subsequent documents being got registered by the respondents practicing the fraud with the right of the petitioner ab-initio void the prayer for recording the cancellation in the record of the same was made.
3. In reply of private respondents by admitting the allotment of the plot to Smt. Veeravali in the year 1962, it is stated that subsequent to such allotment as per terms no steps were taken by such allottee for years together near about 35 years to make such construction on such plot. On which respondent No.4 Society got registered the extinguished deed dated 9.8.2001 in it''s favour. The same after taking the damages Rs.6,50,000/- was recognized by the petitioner by executing an agreement dated 6.7.2004. As per further averments the petitioner has also filed a dispute in this regard u/s 64 of Cooperative Societies Act before the Sub- Registrar Cooperative Society, Bhopal, the same is pending. Besides this in respect of the same plot some other litigations between the parties are also pending before different forum i. e. Joint Registrar, Cooperative Society, State Cooperative Tribunal and in the High Court.
4. On consideration, the Sub Registrar (Registration) vide order dated 28.6.2008 dismissed such application holding the question of sustainability of extinguished deed dated 9.8.2001 and interpretation of Clause 43 (1) of the Bye-Laws of Society are still pending before Sub-Registrar, Cooperative Society and other competent forum, therefore till declaring by the competent forum that Clause 43 (1) of Bye-Laws of the society was not applicable to the present dispute no finding with respect of aforesaid extinguished deed could be given by him. He also held that the jurisdiction of Sub-Registrar is limited only up to the extent to register the document and if any of the party wants its cancellation then the relevant parties may got registered the cancellation deed on proper stamp duty.
5. On filing the application against such order u/s 69 of the Act before the Inspector General of Registration, the same was dismissed holding the same is not entertainable with the direction to the petitioner to approach the competent court in this regard, on which the petitioner has come forward with this petition.
6. According to relief clause of the petition, the same is filed for declaring the above mentioned extinguished deed as well as the aforesaid subsequent sale deeds to be ab initio void with a further direction to respondent No.2 and 3 to record the cancellation of such documents in his record. Some other consequential relief is also prayed.
7. Inter-alia the aforesaid prayer are made alleging that said extinguished deed got executed unilaterally by practicing fraud, with the rights of said Smt. Veeravali after her death and without giving any intimation to the petitioner, in favour of respondent No.4 the same could neither be executed by the office bearer of the respondent 4, Society nor could be registered by the Sub-Registrar respondent No.3 without inquiry regarding previous document of title and contrary to the right of the said earlier owner. The aforesaid extinguished deed was registered contrary to the provision of Section 17(1)(b) of the Act by the respondent No.3, hence by virtue of Section 69 of the Act the respondent No.2 and 3 ought to have declared the same to be ab initio void and pursuant to it subsequent both the sale deeds executed on the strength of such extinguished deed should have also been declared void and consequently the cancellation of such documents should have also been recorded in the concerning index and the record of such respondent No.3. But such duty was not performed either by respondent No.3 or respondent No.2.
8. In return of respondent No. 1 to 3 it is stated that after registration of the documents the Sub Registrar did not have any authority or power to register the cancellation of such documents u/s 69 of the Act. Such section 69 of the Act confers the power to respondent No.2, only for superintending the registration office and making the rules under the frame work of such section for the purpose of the administration of the offices of sub- registrar. Accordingly, such powers are only administrative powers, it does not give any judicial or quasi judicial power to consider the alleged dispute of the parties. It is further stated that as per settled proposition the cancellation of any registered document may be ordered by the competent forum or the court in a duly constituted suit u/s 31 of Specific Relief Act. Registering officer did not have any such power to delete any entries either from the index of book No. 1-A or any extract from any document. It is also stated that while registering any of the aforesaid documents no fraud has been committed by any of these respondents. It is also stated that in pendency of the various litigations, with respect of the alleged disputes, before the different forums provided under the law the writ jurisdiction under Article 226 of Constitution of India could not be invoked in the matter for issuing any writ against the respondents and prayer for dismissal of the petition is made.
9. Having heard the petitioner in persons and the counsel of the respondents, we have carefully perused the record.
10. It is undisputed the alleged plot was initially allotted to the mother of the petitioner Smt. Veeravali vide sale deed dated 22.3.1962 registered in the office of respondent No.3 on 30.3.1962 and subsequent to it respondent No.4 through his office bearers unilaterally got registered the extinguished deed dated 9.8.2001 with respondent No.3. Thereafter on the strength of such extinguished deed respondent No.4 and his office bearer again sold such plot to respondent No.5 vide registered sale deed dated 21.4.2004 who on her terms sold the same by way of sale deed dated 11.7.2006 to respondent No.6 and 7. It is also undisputed fact that subsequent to registration of aforesaid deeds various litigations including the dispute filed by the petitioner u/s 64 of the Society Act in the Court of Sub- Registrar Co-operative Societies are pending for adjudication. Those pending cases are to be decided by the competent forum, before whom the same are pending only after recording the evidence and on appreciation of the same. Under such circumstances, we are of the considered view that in pendency of said litigation before the alternative competent forum between the petitioners and the private respondents the power vested under Article 226 of the Constitution of India could not be invoked for issuing any writ.
11. The petitioner has cited so many reported cases but mainly placed his reliance on a minority view of the Full Bench decision of the Andhra Pradesh High Court in the matter of
111..........Therefore, in my view, when a person transfers all his rights, his rights in the property get extinguished and if he tries to get back the property, it has to be done by challenging the sale deed which he has executed and which is registered by the Sub-Registrar.
112. Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as ''the Contract Act'') is applicable to the present controversy. It lays down that an agreement is void if it deviates the provisions of any law. It further lays down that consideration or object of an agreement is lawful unless it is forbidden by any law or is fraudulent or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy. Therefore, such a document, in my view, is a fraudulent document within the meaning of Section 23 of the Contract Act and as such, cannot be registered. It is even against public policy.....
113..............I do not agree with my learned brother that the writs are not maintainable, as the remedy to the petitioners is at common law by going to a civil Court. The effect of registration of a cancellation deed is against public policy and it will create a chaos if such deeds are allowed to be registered. The purpose of registration of a document is not only to see that the rights of the vendor are extinguished and rights of the vendee are created, but the purpose is much more than that. It has been consistently held by the Courts that the purpose of registration is to inform and give notice to the world at large that such a document has been executed. Registration of a document is a notice to all the subsequent purchasers or encumbrances of the same property. The doctrine of constructive notice can be extended to others besides subsequent purchasers or encumbrances, as has been held in Tatyarao Venkatrao Vase v. Puttappa Kotrappa, 12 Bom LR 940. Therefore, the effect of registration of a sale deed is not effecting the rights of the present petitioners alone, but that registration is a notice to everybody in the world that the property belongs to the petitioners and if such a right is violated by subsequent registration of a cancellation deed by the Sub-Registrar, it cannot be said that writ petitions are not maintainable.
12. While considering the same set of facts in above mentioned cited case the majority view has been expressed in the following words:
89. Registration Act would show that the registering authorities are creations of statutes and they are conferred powers under the statute to enable them to discharge statutory duties. A registering authority has a role of a catalyst in the sense of legitimizing certain transactions by registering as per law. By the action or inaction of registering authority, there is no involvement of the State or the Government as such, except to the extent of charging registration fee for the service of registration as well as keeping the registers. Therefore, any instrument between the two persons, is governed by private law principles and registration thereof does not play any pervading role in rendering the transaction legal or otherwise. For instance, if a contract is prohibited by reason of its being against public policy, the registration of the document evidencing such contract does not render it valid. Similarly, if two joint owners of immovable property decide to exchange properties and do so without going to registering authority, no law prohibits such exchange. However, if either of them wants to produce such deed as evidence, by reason of Section 49(c) of Registration Act, the same cannot be received as evidence of transaction between them. The registration in certain circumstances is notice of a transaction relating to immovable property to a limited extent. Therefore, Registration Act and registering authorities acting thereunder mainly deal and regulate transactions in the realm of private law. For this reason also, the writ petition cannot be entertained.
95..........We, therefore, hold that whenever a person is aggrieved by a cancellation deed, the remedy is to seek appropriate relief in the civil Court and writ petition is not proper remedy. There are other reasons as well, as discussed below.
99. As already referred to in these cases, there are serious disputed questions of fact regarding the allegations of fraud and misrepresentation played by the vendors as well as vendees against each other, there are also questions raised regarding the competence and entitlement of a person executing the document. In some cases (W.P. Nos. 22298, 23005 and 23088 of 2004), the sale deeds were cancelled some time in August, 2003, but the writ petitions are filed with considerable delay. In some cases, there are complaints of cancellation of deeds/instruments after lapse often years after execution of the original deed. In the opinion of this Court, these are the matters which are to be decided based on evidence and the affidavit evidence available on record is hardly sufficient to decide the issues in such a manner to meet the ends of justice. Indeed, in some of the matters (W.P. Nos. 879, 880, 881, 882, 979, 980 and 981 of 2006), suits are already filed for injunction and the orders of status quo are in force. Therefore, this Court is of considered opinion that the parties should be relegated to the civil Court to file suit either u/s 31 or u/s 34 of Specific Relief Act. Point No. 2 is answered accordingly.
126. It is also to be seen that there are many disputed questions of fact, which this Court cannot delve under Article 226 of the Constitution of India. Further it is not as though the petitioners are without any remedy, they have alternative remedy before the competent civil Court, which will be in a position to adjudicate based on the evidence both oral and documentary available on record and, therefore, when an alternative and efficacious remedy is available, writ jurisdiction cannot be invoked.
13. The petitioner has also placed his reliance in this regard on a decision of the Madras High Court in the matter of
14. Keeping in view the aforesaid cited case of Andhra Pradesh High Court in the matter of Yanala Malleshwari (Supra) on examing the case at hand we are of the considered view that the same is fully covered with majority view of such case and therefore in view of minority view no benefit could be extended to the petitioner under the writ jurisdiction. The other cited cases being distinguishable on facts and circumstances and some of them also decided taking into consideration the provisions of some other laws, are not helping to the petitioner in the present scenario of the case at hand.
15. In view of aforesaid discussion we are of the view that after registration of the extinguished deed or other documents by the Sub Registrar, if any application is moved by any of the affected party of such document stating that the same was got registered by practicing the fraud with his right then Sub-Registrar in the lack of any specific provision in this regard could neither entertain nor adjudicate such application under the provisions of Section 17, 18 or 69 or some other provisions of the Act. Section 69 of the Act only confers the superintending power of registration offices and to make rules to the Inspector General respondent No.2. It does not give any rights to cancel the earlier registered documents or modifying any entries in the index or in other record at the instance of any of party. So, Section 17(1)(b) read with 69 of the Act is also not helping to the petitioner in this writ petition. Consequently, it is held that Sub-Registrar as well as Inspector General have not committed any fault in dismissing the application of the petitioner with direction to approach the competent forum for adjudication of his dispute.
16. Apart the above the alleged dispute and allegations of the alleged fraud could not be adjudicated by this Court under the writ jurisdiction. The same could be adjudicated by the civil Court under the common law after recording the evidence of the parties and on appreciation of the same in a duly constituted suit
17. On arising the occasion, this question is also answered by the Apex Court in the matter of
18. On arising the occasion such question was also considered and answered by the Karnataka High Court in the matter of "M. Ramakrishna Reddy v. Sub-Registrar, Bangalore " AIR 2000 KAR 46, in such case their Lordships Justice R. V. Raveendran, the then, held as under:
when a person who claims to be the owner or a person interested in an immovable property, finds that some one else has executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs. If he is satisfied such sale deed is executed by a person without any title and that the deed is void ab initio, he may even choose to ignore the same and leave it to the person claiming title under such deed to establish his title in appropriate proceedings. A Court of Law has the jurisdiction to declare a document to be void or even cancel a document. But under no circumstances, a person claiming to be the owner of a property or a holder of a property, can require the Registering Authority to cancel the registration of a document or to cancel the entry made in Book No. 1 in regard to registered document or to delete or remove the entry made in the indexes relating no Book No. 1. The Registering Officer has no such power. Consequently, the question of the Registering Officer deleting any entry either from the Indexes of Book No. 1 or the extracts therefrom contained in the Encumbrance Certificate by holding transaction covered by a registered instrument is illegal or void, does not arise.
19. In view of the aforesaid discussion, this writ petition being devoid of any merits is hereby dismissed. There shall be no order as to the costs.
