The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17838 OF 2023 (An application under Articles 226 and 227 of the Constitution of India) Suresh Chandra Behera and others .... Petitioners ****** -versus- State of Odisha and others …. Opp. Parties Advocates appeared: For Petitioners : Mr. Prafulla Kumar Lenka, Advocate For Opp. Parties : Mr. Swayambhu Mishra, Additional Standing Counsel (For Opposite Party Nos.1 to 4) Mr. Bhaskar Chandra Panda, Advocate (For Opposite Party Nos.5 to 17) CORAM: JUSTICE K.R. MOHAPATRA --------------------------------------------------------------------------------- Heard and disposed of on 26.04.2024 ---------------------------------------------------------------------------------- J U D G M E N T 1. This matter is taken up through hybrid mode. 2. Petitioners in this writ petition seek to assail the decision of Sub-Registrar, Jagatpur communicated to Petitioners vide letter No.1006 dated 15th December, 2022 (Annexure-22). Petitioners also pray for restraining the Tahasildar, Tangi- Choudwar at Jagatpur in mutating the disputed property in the name of Opposite Party No.17 pursuant to the registration of the sale deed dated 27th September, 2022. W.P.(C) No.17838 OF 2023 Page 1 of 11
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 2 //
Legal Reasoning
3. Mr. Lenka, learned counsel for the Petitioners submits that the land, i.e., disputed property stood recorded in the name of the father of Petitioners, namely, Purnananda Behera in 1931 Settlement ROR. Out of the disputed property, said Purnananda sold Ac.7.21 decimal and 5 kadis in favour of one Maguni Behera, the predecessor of Opposite Party Nos.5 to 16 through Registered Sale Deed (RSD) No.5474 dated 27th July, 1960. In turn, said Maguni Behera sold an area of Ac.3.18 decimal out of Ac.7.21 decimal the land in favour of the mother of Petitioners, namely, Sosilakanti Dei vide RSD No.379 dated 16th March, 1973 (Annexure-2) and subsequently vide RSD No.388 dated 20th March, 1973 (Annexure-3), said Maguni Behera sold rest portion of the property to the mother of the Petitioners. 3.1 The disputed property comprises of Sabik Plot No.493 under Sabik Khata No.43/Ga, to an extent of area Ac.0.02 decimal of mouza Nuapatana under 1931 Settlement ROR, which corresponds to Hal Plot No.550 under Hal Khata No.232, to an extent of area Ac.0.03 decimal in 1973 Settlement ROR finally published on 6th September, 1973 published in the name of Maguni Behera, the vender of the mother of Petitioners. Assailing the same, Petitioners filed RP Case No.486 of 2015, which is pending in the Court of Joint Commissioner, Settlement, Cuttack. After the death of Maguni Behera, his successors got the disputed land mutated in their name in Hal Khata No.232 in Mutation Case No.5409 of 2016 without knowledge of the Petitioners. W.P.(C) No.17838 OF 2023 Page 2 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 3 // 3.1 It is further submitted that daughters of Maguni Behera have also filed CS No. 258 of 2018, which is pending in the Court of learned Civil Judge (Senior Division), Athagarh for declaration and permanent injunction in respect of the property under RSD No.388 dated 20th March, 1973 executed by said Maguni Behera in favour of mother of the Petitioners. The said property includes the disputed property also. During pendency of RP Case No. 486 of 2015, legal heirs of Maguni Behera, namely, Opposite Party Nos.5 to 16 presented a sale deed dated 22nd October, 2019 (Annexure-10) executed in favour of Opposite Party No.17 for registration. The Sub-Registrar, Jagatpur refused to register the sale deed under Annexure-10 vide its order dated 5th November, 2019 (Annexure-11). 3.2 Assailing the order under Annexure-11, Opposite Party No.5-Murali Das filed Stamp Appeal No.1 of 2020 before Additional District Magistrate, Cuttack, which was also dismissed vide order dated 16th June, 2020 (Annexure-14). Being not satisfied, Opposite Party No.5 filed W.P.(C) No.15788 of 2020 before this Court without impleading the present Petitioners as parties and suppressing the material facts. This Court disposed
Decision
of the writ petition vide order dated 12th July, 2022 (Annexure- 15) with the following direction. “5. Taking into consideration the rival contentions of the parties and the ratio decided in the case of Dhabal Prasad Pradhan (supra), this Court is of the considered opinion that when a document is presented for registration, the Sub-Registrar has to make an enquiry under Section 34 of the Act read with Rule 63 of the Orissa Registration Rules W.P.(C) No.17838 OF 2023 Page 3 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 4 // and take a decision accordingly. In the instant case, the Sub-Registrar has apparently not made any inquiry under Section 34 of the Act. It is also not clear from the impugned order as to how Section 22-A(2) of the Act has any application to this case, more particularly, when the R.O.R. in respect of the case land, although challenged, has not yet been set aside. Further, there is nothing on record to show that any interim order prohibiting transaction in respect of the land in question has been passed. The factual adjudication. Further, this Court very recently in W.P.(C) No. 25695 of 2021 (Manash Kumar Pradhan –v- State of Odisha and others) held as under: same, of requires course, to be registered “It appears, by the provision, Parliament gave option to person aggrieved by order of the Registrar, to file suit within thirty days after the making of refusal, in civil Court of original jurisdiction where the office, in which the document is sought to be registered is situate, for a decree directing the document in such office on presentation within thirty days after the passing of such decree. This option, if to be exercised by the person aggrieved, must be exercised within thirty days after the making of the order of refusal. It has to be seen as an option and as options go, they may or may not be exercised. The provision is more so an option because limitations for suits are provided by the Limitation Act,1963. The Act of 1908 does not save applicability of the provision from operation of the Limitation Act, 1963. As such, the writ petition is maintainable.” 6. In view of the discussion made above as well as the case law cited, this Court finds that this writ petition is maintainable. Accordingly, the impugned order under Annexure-4 is set aside and the matter is remitted back to the Sub-Registrar, Jagatpur Opposite Party No.3 to take a decision afresh in accordance with law keeping in mind law cited the observation made as well as case hereinabove, giving opportunity of hearing to the parties concerned. Accordingly, Opposite Party Nos.5 to 16 presented a fresh sale deed on 27th September, 2022 along with order passed by this W.P.(C) No.17838 OF 2023 Page 4 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 5 // Court in W.P.(C) No.15788 of 2020 before the Registering Officer for registration. 3.3 Although a direction was given by this Court to pass an order providing opportunity to the parties concerned, but the Sub-Registrar, Jagatpur without providing any opportunity to the Petitioners, who have interest in the property, registered the sale deed. Assailing the same, Petitioners filed W.P.(C) No.26421 of 2022, which was disposed of on 19th October, 2022 with the following direction. in that the event the Petitioners “7. In view of the above, this Court feels that the Petitioners should be given opportunity of hearing. Accordingly, the writ petition is disposed of with a direction file an application to take a decision with regard to registration of sale deed dated 27th September, 2022 within a period of two weeks hence along with certified copy of this order, the Sub-Registrar, Jagatpur-Opposite Party No.2 shall do well to issue notice to the Petitioners and Opposite Party Nos.5 to 16 and take a fresh decision with regard to registration of sale deed in accordance with law.” Pursuant to the afore-quoted direction of this Court, Petitioners filed their objection to the registration of the sale deed vide Annexure-20. 3.4 It is submitted that without taking note of the objection filed by the Petitioners and without affording opportunity of hearing to the Petitioners, the impugned order under Annexure- 22 has been passed by the Sub-Registrar, Jagatpur. Hence, this writ petition has been filed assailing the said order. W.P.(C) No.17838 OF 2023 Page 5 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 6 // 4. Mr. Lenka, learned counsel for the Petitioners further submits that in view of Rule 63 (3) Registration Rules, 1988 (for brevity ‘the Rules’), the Sub-Registrar is required to make an enquiry before registration of the document more particularly with regard to person appearing as a representative/ assignee/ agent has any right to appear in that capacity or not. No such enquiry has been conducted by the Sub-Registrar either before registering the sale deed or during consideration of the objection of the Petitioners. Petitioners were also not given opportunity as directed by this Court. He, therefore, submits that when the Petitioners have subsisting right, title and possession over the disputed property and they have raised objection to the registration of the sale deed by Opposite Party Nos. 5 to 16 in favour of Opposite Party No.17 pursuant to direction of this Court, the Sub-Registrar, Jagatpur should have cancelled the registration and made an entry to that effect in the concerned register. He, therefore, submits that Petitioners are entitled to the relief claimed. 5. Mr. Panda, learned counsel for Opposite Party Nos.5 to 17 submits that the allegation in the writ petition has been made against the action of the Sub-Registrar in registering the sale deed. As such, Opposite Party Nos.5 to 17 do not have much to submit in the matter. He, however, submits that the mutation ROR stands in the name of Opposite Party Nos.5 to 16 and Civil Suit in respect of the suit property filed by them has already been withdrawn. Thus, there was no legal impediment on the part of W.P.(C) No.17838 OF 2023 Page 6 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 7 // the Sub-Registrar, Jagatpur to register the sale deed executed by Opposite Party Nos.5 to 16 in favour of Opposite Party No.17. 5.1 It is his submission that the Sub-Registrar is not the adjudicating authority to test the veracity of the submissions made by learned counsel for the Petitioners with regard to title over the suit property. He accordingly submits that there is no infirmity in the impugned order, as the Petitioners were provided with ample opportunity to have their say before Sub-Registrar, Jagatpur. 6. Mr. Mishra, learned ASC submits that in W.P.(C) No.15788 of 2020, Petitioners were not made parties. As such, while acting upon the direction of this Court made therein, the Sub-Registrar was not required to issue notice to the Petitioners. It is, however, pursuant to direction of this Court in W.P.(C) No.26421 of 2022, Petitioners were afforded with opportunity of hearing. Contentions raised by Petitioners were taken into consideration, but veracity of the allegation with regard to title of the Petitioners over the disputed property cannot be adjudicated by the Sub-Registrar. Registration of a sale deed is an administrative action of the Sub-Registrar. It does not discharge any quasi- judicial power. Thus, legality and correctness of the flow of title as claimed by the Petitioners could not have been gone into by the Sub-Registrar. Admittedly, Settlement ROR stands in the name of Opposite Party Nos.5 to 16 when the sale deed was executed. Thus, verifying the same, while making an enquiry under Section W.P.(C) No.17838 OF 2023 Page 7 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 8 // 34 of the Registration Act, 1908 (for brevity ‘the Act’) read with Rule 63 of the Rules, the Sub-Registrar rightly registered the sale deed. If the Petitioners have any grievance against validity of the sale deed in question, it can only be adjudicated by a competent civil Court in a properly constituted suit where flow of title in respect of both the parties can be gone into after receiving evidence from both the sides. He also drew attention to the discussion made by Sub-Registrar, Jagatpur in the impugned order and submits that Petitioners had appeared before the Sub-Registrar by filing Vakalatnama. They were also given opportunity of hearing and their contentions were also taken into consideration. Thus, no illegality has been committed by the Sub-Registrar in rejecting the objection of the Petitioners. 7. The factual aspects as narrated by Mr. Lenka, learned counsel for the Petitioners is not disputed by learned counsel for Opposite parties save and except the flow of title in respect of the disputed property, which is a piece of land of Ac. 0.03 decimal. When Opposite Party Nos.5 to 16 claimed that they have right, title and interest over the disputed property and mutation ROR has already been prepared in their names, Petitioners claim that by virtue of the sale deeds as per Annexures-2 and 3 executed by Maguni Behera in favour of their mother, namely, Sosilakanti Dei, they have acquired absolute right, title and interest over the disputed property and neither Maguni Behera nor his legal heirs have any semblance of right, title and interest over it, much less any alienable right. RP Case No.486 of 2015 assailing W.P.(C) No.17838 OF 2023 Page 8 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 9 // correctness of the ROR in the name of Opposite Party Nos.5 to 16 is also pending for consideration. While disposing of W.P.(C) No.15788 of 2020, this Court has categorically observed that pendency of the revision petition cannot be a bar for the Sub- Registrar to consider registration of the document in respect of the property involved. 8. Admittedly, no interim order by any competent Court of law with regard to alienation of the property in question is operating at present. When the sale deed was initially presented for registration before Sub-Registrar, Jagatpur, it was refused to be registered vide order dated 5th November, 2019 (Annexure-11) on the ground that a mutation case was pending in respect of the disputed property. Subsequently, said order under Annexure-11 was also confirmed by ADM, Cuttack in Stamp Appeal No.1 of 2020. However, assailing the same Opposite Party No.5, namely, Murali Das filed W.P.(C) No.15788 of 2020 and pursuant to direction of this Court dated 12th July, 2022 passed therein, the Sub-Registrar entertained the sale deed for registration and allowed the same. Petitioners being aggrieved, filed W.P.(C) No.26421 of 2022, which was disposed of on 19th October, 2022 with a direction to the Sub-Registrar to consider the grievance of the Petitioners on registration of the sale deed providing opportunity of hearing to the Petitioners. Accordingly, the Petitioners were provided opportunity of hearing. W.P.(C) No.17838 OF 2023 Page 9 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 10 // 9. On perusal of the objection filed by the Petitioners before Sub-Registrar, Jagatpur vide Annexure-20 and the impugned order under Annexure-22, it appears that Petitioners basically raised objection with regard to flow of their right, title and interest over the disputed property denying such claim of Opposite Party Nos.5 to 16. Rival claim of right, title and interest over the suit property cannot be adjudicated by the Registering Officer while registering a document under the Act. Registration of a document is an administrative action of the Registering Officer. He does not have any quasi-judicial power to adjudicate upon the rival claims of right or title of the parties. Basing upon the document, i.e., mutation record of right published in the name of Opposite Party Nos.5 to 16, the Sub-Registrar proceeded to register the document presented before it. 10. The flow of title in respect of the disputed property can only be adjudicated by a competent civil Court in a properly constituted suit. The Sub-Registrar’ while making an enquiry under Section 34 of the Act read with Rule 63 of the Rules’ is required to satisfy himself with regard to the competence of the person to present the deed in question for registration. Since on being satisfied that Opposite Party Nos.5 to 16 are competent to alienate the suit property, the Sub-Registrar proceeded to register the document, this Court feels that it has not committed any error in discharging the duty to register the document. W.P.(C) No.17838 OF 2023 Page 10 of 11 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 29-Apr-2024 18:15:36 // 11 // 11. Although Mr. Lenka, learned counsel for the Petitioners vehemently submits that the Petitioners were not provided with any opportunity of hearing, but on perusal of the order under Annexure-22, it appears that Petitioners had appeared through their counsel and they were provided with opportunity of hearing. The Sub-Registrar also considered the contentions raised by the Petitioners while passing the impugned order under Annexure-22. As such, I find no infirmity in the order under Annexure-22. 12. Hence, the writ petition being devoid of any merit stands dismissed. However, dismissal of the writ petition shall not be a bar for the Petitioners to seek for appropriate remedy in competent Court of law. All interim applications are disposed of accordingly. 12.1 It is further made clear that in view of the order passed herein above, the observation made by this Court at para-8 of the order dated 19th October, 2022 by which W.P.(C) No.26421 of 2022 was disposed of, is no more required to be continued. Hence, the Sub-Registrar, Jagatpur is at liberty to rectify the entry in the website in respect of the sale deed in question accordingly. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge W.P.(C) No.17838 OF 2023 Page 11 of 11