IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.563 of 2009 Date of decision: 22.7.2010 Sultan Singh and another …..Appellants versus The Collector (Registrar under Registration Act) Gurgaon and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Gurinder Pal Singh, Advocate for the appellants Mr.S.S.Patter, Sr.DAG Haryana Jasbir Singh, J. (Oral) C.M. No.1492 of 2009 In view of reasons mentioned this application, it is allowed and 12 days delay in filing the appeal stands condoned. LPA No.563 of 2009 This appeal has been filed against order dated 3.2.2009, dismissing CWP No.1740 of 2009 filed by the appellants /petitioners. In the above said writ petition, the petitioners had laid challenge to an order dated 27.12.2007 (P5), vide which respondent No.2 declined to register sale deed of property at the instance of the petitioners, on the ground that earlier thereto on 1.10.2007, he had registered a sale deed bearing registration No.13784 regarding that very property under some mistake and he had already sent a reference to the competent authority for cancellation of that sale deed. Further challenge was laid to an order dated 1.10.2008 (P7), Letters Patent Appeal No.563 of 2009 passed by the Collector/Registrar, declining to cancel the sale deed registered on 1.10.2007. It is not in dispute that the petitioners had executed a power of attorney in favour of respondent No.3 Naveen Bahari, authorizing him to sell their land in dispute. Power of attorney was executed on 7.7.1995. It was stated by counsel for the petitioners that before registration of the sale deed on 1.10.2007, the above said power of attorney was cancelled on 14.9.2007 and intimation of the same was also sent to the Sub- Registrar- respondent No.2, however, despite that sale deed was executed at the instance of respondent No.3 on 1.10.2007. The Collector, before whom, reference was sent by the Sub-Registrar for cancellation of the sale deed, mentioned above, declined to interfere at the instance of respondent No.2, by observing as under:- I have heard the ld. Counsels for the parties and gone through the case file. Annexure P-4 is a letter written by the Tehsildar Gurgaon vide No.442/MJI dated 14.12.2007 seeking the cancellation of deed No.13784 dated 1.10.2007. The said reference was based on a complaint made by the applicant petitioner stating that the said registered deed has been registered wrongly as the GPA on the basis of which the said deed has been registered had already been cancelled. The reference above states that the Tehsildar Gurgaon himself inquired into the matter and on enquiry it was found that GPA had been cancelled. The letter of cancellation had been marked by him to the concerned registry clerk so that the factum of cancellation could be entered into the computer & when required he could be apprised of the same. However at 2 Letters Patent Appeal No.563 of 2009 the time of registration of the said deed the said registry clerk did not produce the cancellation of GPA before him as a result of which the said deed has been registered through fraud. The Tehsildar concluded that the said registration was done by him in good faith. Therefore from the view point of Justice & under provision of 68 (1-2) of Stamp Act the registration deed may be cancelled. Section 68(1) of the Indian Registration Act (not the Stamp Act as stated in the letter of the Tehsildar) states that every Sub Registrar shall perform the duties of his office under the Superintendence and control of the Registrar. Section 68 (2) of Indian Registration Act, 1908 grants the Registrar authority to issue any order consistent with the Act which is considered necessary in respect of any act or omission of any Sub Registrar subordinate to him or in respect of the ratification of any error regarding the book or the office in which any document has been registered. In the instant case, a fraud through misrepresentation has been alleged while registering the impugned sale deed. To my mind a sale deed once registered, the factum of proving an offence through fraud or misrepresentation or otherwise in the execution of the sale deed and its registration under law is a subject matter to be handled by a criminal court under the law of the land. To declare such registering deed as ipso-factor null and void would be a subject matter of jurisdiction of a competent civil court. 3 Letters Patent Appeal No.563 of 2009 It would also be pertinent to mention that though fraud through mis-representation has been alleged by the applicant, no evidence of any action regarding initiation of criminal proceedings against Sh.Naveen Bahri who is alleged to have wrongly exercised a power of attorney not provided to him on the date of registration by the applicant has been produced before me. It is certainly not within the authority or powers for the Registrar to give an enforceable finding on a criminal offence such as fraud. It is my considered opinion that section 68(2) of the Indian Registration Act, 1908 does not provide the competence or the jurisdiction to the Registrar to cancel a registered sale deed but involves only giving the general directions to the Sub Registrar to prevent such frauds from happening in the future or by way of rectification of an error. In view of the above, the petition seeking cancellation applying the directions u/s 68(2) of the Indian Registration Act is hereby dismissed. However, the petitioner is advised of approach the competent judicial court exercising the jurisdiction for seeking cancellation of the sale deed allegedly registered by way of fraud. The Sub Registrar-cum-Tehsildar, Gurgaon is also directed to fix responsibility on the concerned clerk for alleged negligence or connivance and initiate necessary disciplinary action as per rules. Announced in open court. A copy of the order be sent to Sub-Registrar Tehsil Gurgaon.” 4 Letters Patent Appeal No.563 of 2009 It was specifically observed that fraud has to be proved as a matter of fact and for that it is necessary for the parties to bring evidence on record. It was ordered that the parties may approach the Civil Court for cancellation of the sale deed. The Sub-Registrar – respondent No.2 was also directed to fix responsibility as to how the sale deed was executed on 1.10.2007. Petitioners came to this Court to lay challenge to the above said orders. The learned Single Judge dismissed that writ petition by stating as under:- “Having heard learned counsel for the petitioners and on perusal of the impugned orders, I am of the considered that there are seriously disputed questions of facts involved in this case which cannot be effectively decided by this Court in exercise of its writ jurisdiction. Mere execution of the cancellation deed by the petitioners before the Sub-Registrar at Rewari in respect of the land which is situated within the revenue estate of district Gurgaon, cannot be taken as a conclusive proof of committing any fraud by respondent No.3. In other words, the question, as to whether or not fraud has been committed, being a pure question of fact, has to be proved in appropriate proceedings where both the parties can have opportunities to lead their respective evidence. Similarly, so as long as the sale deed dated 1.10.2007 executed by respondent No.3 is not set aside / declared null and void, the Sub Registrar, Gurgaon cannot be compelled to execute another sale deed at the behest of the petitioners in respect of the same land as their title qua the same is presently under clouds.” 5 Letters Patent Appeal No.563 of 2009 We feel that the order passed is perfectly justified. It is not stated before us that respondent No.3 was closely related to any of the petitioners. If that is so, it is not coming out from the records as to why power of attorney to sell their land was executed in his favour way back in 1995 and was cancelled only on 14.9.2007. Copy of the power of attorney is not put on record. It is also not clear from the records as to whether any authority was available with the petitioners in the power of attorney to cancell that document. Otherwise also, the facts regarding fraud cannot be effectively proved before this Court as has rightly been observed by the learned Single Judge. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 22.07.2010 (Augustine George Masih) gk Judge 6