IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No._204 of 1999. Judgment reserved on: 27.8.2009 Date of decision: 14.10.2009 Mast Ram …….Appellant Vs. Sant Ram …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1Yes For the Appellant : Mr. B.B. Vaid, Advocate For the Respondent : Mr. O.P. Sharma, Sr. Advocate with Mr. J.R. Kashyap, Advocate. Kuldip Singh, Judge. The plaintiff has filed this appeal against judgment, decree dated 30.8.1997, passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Civil Appeal No.43 of 1995/93, affirming judgment, decree dated 31.3.1993 passed by learned Sub Judge Ist Class, Rampur Bushahr in Civil Suit No.104-1 of 1984 dismissing the suit of the plaintiff. 2. The facts in brief are that on 9.10.1984 appellant had filed a suit for declaration that he is owner in possession of land Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… measuring 2 bighas comprised in khata khatauni No. 7/14 min, khasra No.196/80/1, mauza Arout, Pargana Chabishi, Tehsil Kumarsain, Distt Shimla. The consequential relief of permanent prohibitory injunction was also prayed. 3. The case of the appellant is that he had purchased the suit land in the year 1974 for a sale consideration of Rs.1500/- from one Hira Nand who had earlier purchased the suit land from Sada Nand father of respondent. It is the case of the appellant that he is in physical possession of the suit land on which he has planted apple trees. The respondent on 1.10.1984 had threatened to interfere in the possession of the appellant, hence appellant filed the suit. 4. The respondent contested the suit and took preliminary objections of maintainability, appellant is not in possession of the suit land, limitation, valuation and jurisdiction. On merits, respondent claimed his possession on the suit land. The sale in favour of appellant and delivery of possession to appellant was denied. It was pleaded that Hira Nand had not paid the sale consideration; therefore, no title had passed to him. In alternative, it has been pleaded that in case factum of sale is proved then the respondent is in adverse possession of the suit land since 19.7.1971 the date of execution of the sale deed. 5. The further case is that initially the suit was decreed on 31.10.1987 and a declaration was given in favour of appellant but relief of permanent prohibitory injunction was denied to appellant on the grounds that he is not in possession of the suit land. The …3… appellant had filed appeal and learned District Judge on 9.10.1991 set aside the judgment, decree dated 31.10.1987 and remanded the suit. 6. The appellant after remand of the suit filed an application under Order 6 rule 17 CPC and prayed in alternative a decree for possession. The respondent raised additional plea that no saleable right accrued to Hira Nand vide sale deed dated 19.7.1991 as the same was registered on 23.12.1972 after the expiry of period of limitation for registration of the sale deed. The suit is barred by non- impleadment of Jeet Ram or his successor whose name appears in the subsequent sale deed No.73/94. 7. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is not maintainable as alleged? OPD 1(a) Whether the sale deed No.137/72 has been executed on 19.7.1971 and registered on 23.12.1972, if so its effect? OPD 1(b) Whether the plaintiff is also entitled for the relief of possession in the alternate as alleged? OPD 2. Whether the suit is within limitation? OPP 3. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? 4. Whether the plaintiff is in possession of the suit land as alleged? OPP 5. Whether the sale in favour of Hira Nand is without consideration, if so its effect? OPD 6. If issue No.4 is not proved, whether the defendant has become owner of suit land by adverse possession? OPD 7. Relief The issues No.1, 1(a), 2, 5 were answered in affirmative. Issues No.1(b), 4,6 in negative, under issue No.3 it was held that suit …4… was properly valued and ultimately the learned Sub Judge dismissed the suit on 31.3.1993. The plaintiff filed appeal which was also dismissed on 30.8.1997 by learned District Judge, hence second appeal which has been admitted on following substantial questions of law :- 1. Whether the provisions of the Indian registration Act are applicable to the facts of the present case and whether the suit of the appellant could be dismissed on account of the same? 2. Whether the plea of bar of registration could be allowed? 8. The learned counsel for the appellant has submitted that the two Courts below have erred in non suiting the appellant and returning findings that the sale deed Ex.PW-5/A which was executed on 19.7.1971 and registered on 23.12.1972 was void and no title was passed to Hira Nand. It has been submitted that the two courts below have erred in returning the findings that Registration Act, 1908 (for short Act) is applicable in the instant case. Mr. O.P. Sharma, learned Senior Advocate representing the respondent has supported the impugned judgment, decree. 9. The substantial questions of law 1 and 2 are interconnected; therefore, both of them are being considered collectively. The appellant in the amended plaint has pleaded that he had purchased the suit land from Hira Nand in the year 1974 for a consideration of Rs.1500/- and Hira Nand had purchased the same …5… land from Sada Nand. Ex.PW-5/A is the copy of sale deed dated 19.7.1971 executed by Sada Nand of suit land in favour of Hira Nand for a consideration of Rs.1500/-. Ex.PW-5/B is the copy of sale deed dated 5.6.1974 of suit land executed by Hira Nand in favour of Jeet Ram and Mast Ram. Ex.PW-5/A was registered on 23.12.1972 whereas Ex.PW-5/B was registered on 5.6.1974. In the written statement by way of preliminary objection No.5 a specific plea has been taken that Hira Nand had executed the sale deed on 19.7.1971 but got the sale deed registered on 23.12.1972 and therefore, the registration of the sale deed was void and nullity. In the replication in reply to para No.5 of the preliminary objection it has been pleaded that the sale deed was executed in the year 1972 therefore, Hira Nand had got saleable right and was competent to transfer the land to the appellant. The registration of the sale deed in favour of Hira Nand is valid. 10. The appellant in the plaint or in the replication has not pleaded that the Act is not applicable in the instant case, rather the pleaded case of the appellant is that the registration of sale deed in favour of Hira Nand is valid. In these circumstances it can be safely inferred from the pleadings of the appellant that he has not denied the applicability of the Act for registration of the sale deed of the suit land. The pleaded case of the appellant is that registration of the sale deed in favour of Hira Nand is valid. As noticed above, sale deed Ex.PW- 5/A in favour of Hira Nand was executed on 19.7.1971 but it was registered on 23.12.1972 after about one year and five months. The …6… Section 23 of the Act provides, subject to the provisions contained in sections 24,25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. 11. The section 24 of the Act is applicable when the documents executed by several persons at different times. The section 25 of the Act provides that 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. The section 26 of the Act is meant for documents executed out of India. In the facts of the present case, sections 24 and 26 of the Act are not applicable. Insofar, section 25 of the Act is concerned the delay can be condoned upto a period of four months. 12. In the present case the sale deed Ex.PW-5/A was executed on 19.7.1971 but registered on 23.12.1972 after more then one year. No provision has been pointed out from the Act by the learned counsel for the appellant wherein delay of more then four months can be condoned by the Registering authority. In U Aung Din and another vs. Maung Aung Myint and others AIR 1933 Rangoon 194 Page C.J. has held as follows:- “I cannot see any difference in principle between presentation by a person who is not entitled to present the document for registration and presentation after the period within which the presentation has to be made. Presentation by the wrong person and presentation at the wrong time appear to me to stand on the same footing. In either event, in my opinion, the Registrar has no jurisdiction to register the …7… document, and the fact that he has registered the document will not take that document out of the ambit of S.49, Registration Act. Bhagat Singh v. Ram Narain(7); Raya Raghoba Kamat v. Anapurnabai(8) ; Keesara Venkatappayya v. Nayani Venkata Ranga Row(9). In Ma Pwa May vs. S.R.M.M. A. Chettiar Firm(10) Lord Atkin, Delivering the judgment of the Judicial Committee, observed in connexion with S.87, Registration Act, that in seeing to apply this section it is important to distinguish between defects in the procedure of the Registrar and lack of jurisdiction. Where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where the presentation is out of time, the section is inoperative: see Mujibunnissa v. Rahim and Abdul Aziz(8)” 13. In Ram Singh Sant Ram vs. Jasmer Singh Hardit Singh and another AIR 1963 Punjab 100 it has been held that “moreover, this sale-deed was admittedly executed on 11.2.1943 and the same was presented for registration on 10.2.1944 and registered on 11.2.1944 . According to Section 23 of the Act, no document other than a will can be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution. Under Section 25 of the Act, a further period of four months is allowed for registration in certain cases of urgent necessity or unavoidable accident. That is to say, eight months is the outside limit for presenting a document for registration. In the present case, it would be seen that the sale-deed was presented after about a year of its execution. The same could not, therefore, under any circumstances be registered. Consequently, the learned single Judge was right in holding that the decree obtained in that suit and the registration of the sale-deed in pursuance thereof were not valid in law”. 14. The sale deed Ex.PW-5/A was registered on 23.12.1972 in violation of law; the Sub Registrar had no jurisdiction to register the sale deed Ex.PW-5/A after eight months of execution of Ex.PW-5/A which was executed on 19.7.1971. Once the registration of the sale deed Ex.PW-5/A is found to be illegal and without jurisdiction than it …8… does not convey or transfer valid title of suit land in favour of Hira Nand. This being the position, Hira Nand had no title on the suit land on the basis of sale deed Ex.PW-5/A and as such he could not convey or transfer any title in favour of appellant of the suit land vide sale deed Ex.PW-5/B. The respondent by way of preliminary objection No.5 in the written statement has specifically taken the plea that sale deed was executed on 19.7.1971 and was registered on 23.12.1972 and therefore void. On the face of this objection, it cannot be said that respondent had not taken the objection of bar of registration. The two Courts below have rightly appreciated the smaterial on record. There is no plea of bonafide purchase. The learned counsel for the appellant has miserably failed to point out any perversity or illegality in the impugned judgment, decree. The substantial questions of Law No.1 and 2 are decided against the appellants. 15. No other point was urged. 16. The result of the above discussion, the appeal fails and is accordingly dismissed with costs. ( Kuldip Singh ) Judge. October 14, 2009 (sks)