The High Court
Case Details
Order No. 9. IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8427 of 2022 Swapnaneer Building Pvt. Ltd., Kolkata …. Petitioner Mr. Hrudananda Mohapatra, Advocate -versus- State of Odisha and others ….
Legal Reasoning
Opp. Parties Mr. Ajodhya Ranjan Dash, Additional Government Advocate (For Opposite Party Nos.1 and 2) Mr. Bidhu Bhusana Mohapatra, Advocate (For Opposite Party Nos.3 to 8) CORAM: JUSTICE K.R. MOHAPATRA
Decision
ORDER 13.04.2023 1. This matter is taken up through Hybrid mode. 2. Order dated 25th February, 2022 (Annexure-8) passed by Additional District Magistrate-cum-District Registrar, Puri- Opposite Party No.2 in Registration Appeal No.8 of 2021 is under challenge in this writ petition, whereby dismissing the appeal, order dated 21st September, 2021 passed by Sub- Registrar, Puri refusing to register the sale deed presented by Opposite Party Nos.3 to 8 executed in favour of the Petitioner, was confirmed. 3. Mr. Mohapatra, learned counsel for the Petitioner submits that in Title Suit No.44/399 of 2004/1998, the right, title and interest in favour of one Bulamani Moharana was declared vide judgment dated 31st March, 2007. After death of Bulamani Moharana her legal heirs, namely, the Opposite Party Nos.3 to 8 executed a sale deed in favour of the Petitioner. The Page 1 of 4 // 2 // said deed was presented before Sub-Registrar on 22nd March, 2021 and ID number was generated vide ID No.1482102081. A receipt under Section 52 (b) of the Registration Act, 1908 was issued in favour of the Petitioner. However, although the receipt disclosed that the expected date of delivery was 23rd February, 2021, but surprisingly after a lapse of about six months, the Sub-Registrar, Puri refused to register the document vide order No.2839 dated 21st September, 2021 (Annexure-5). It is stated in the said order that the ROR/Khatian bearing Khata No.52, Plot No.154/1452 belongs to mouza Puri Sadar, Unit-12, Nolia Sahi, stands in the name of Laxman Moharana, son of Hadibandhu Moharana, which was granted to him in Pattadar satwa under Khasmahal lease. The said land belongs to the Government, as the lease period has already expired in the meantime. Although the order passed in Title Suit No.44/399 of 2004/1998 was produced before the Sub-Registrar, but without referring the same, the refusal order under Annexure-5 was passed. Assailing the same, the Petitioner preferred W.P.(C) No.31713 of 2021, which was disposed of vide order dated 25th November, 2021 with an observation that the Petitioners may file appeal under Section 72 of the Registration Act (for brevity ‘the Act’) before the District Registrar, Puri. Pursuant to such direction, the Petitioner filed Appeal Case No.8 of 2021 before the District Registrar, Puri, who although referred to the judgment passed in the suit, but holding that an appeal bearing RFA No.286 of 2007 is pending before learned District Judge, Puri, refused to entertain the appeal. Hence, this writ petition has been filed assailing the orders under Annexures-5 and 8. Page 2 of 4 // 3 // 3.1 It is submitted by Mr. Mohapatra, learned counsel for the Petitioner that although the appeal has been filed since 2007, but delay in filing the appeal has not yet been condoned. Thus, there is no appeal pending in the eye of law. Further, pendency of an appeal under Section 96 of CPC does not amount to stay of the judgment and decree impugned therein. Hence, there is no legal impediment to register the sale deed in favour of the Petitioners. 4. Learned counsel for the Opposite Party Nos. 3 to 8 also supports the case of the Petitioner and submits that they have no objection if the sale deed is executed in favour of the present Petitioners is registered. 5. Mr. Dash, learned AGA submits that of course law is clear on the point that mere pendency of the appeal does not amount to stay of the judgment and decree impugned therein. But Khasmahal lease in respect of the land in question was granted in favour of Laxman Moharana and the period of lease has already been expired since long. However, Bulamani Moharana had filed suit, i.e., TS No.44/399 of 2004/1998 claiming title over the suit property by adverse possession. The said suit being decreed in favour of said Bulamani is pending before learned District Judge, Puri in RFA No.286 of 2007. Thus, in order to avoid multiplicity of litigation, the sale deed in question should not be registered at this stage. He, therefore, submits that impugned orders under Annexures-5 and 8 warrant no interference. 6. Considering the submissions of learned counsel for the parties, this Court is of the considered opinion that during pendency of the appeal against judgment and decree passed in Page 3 of 4 // 4 // TS No. 44/399 of 2004/1998 does not amount to stay of the judgment and decree impugned therein. On perusal of the impugned order under Annexures-5, it appears that the Sub- Registrar did not at all take into consideration the decree passed in the Title Suit. Further, in the order under Annexure-8, the ADM-District Registrar, while entertaining the appeal, failed to appreciate the aforesaid position of law to the effect that mere pendency of appeal does not amount to stay of the judgment and decree impugned therein. Law is well-settled that record of right in the name of the Vender is not required to be produced at the time of presenting a document for presentation. However, the Vender has to show that he/she has an alienable right over the suit property by producing relevant documents. 7. In view of the above, this Court feels that the matter requires fresh consideration by the Sub-Registrar, Puri. As such setting aside the orders under Annexures-5 and 8, this Court remits the matter back to the Sub-Registrar, Puri to consider the matter afresh giving opportunity of hearing to the parties and keeping in mind the observations made hereinabove. 8. With the aforesaid observation and direction, the writ petition is disposed of. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 4 of 4