The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.41455 of 2023 (In the matter of an application Under Articles 226 & 227 of the Constitution of India) A.Rajendra Prasad …. Petitioner Sub-Registrar, Khurda & another …. Opposite Parties -versus- For Petitioner
Legal Reasoning
: Mr. S.Biswal, Advocate : Mr. S.K.Rout, ASC(OP No.1) For Opposite Parties CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:06.11.2024(ORAL) G. Satapathy, J. 1. This writ petition Under Articles 226 and 227 of the Constitution of India by the Petitioner seeking declaration of the act of registration by the Sub- Registrar, Jatni, Khurda in registering sale deed Nos. 1112003598 dt. 22/10/20 and 11122000113 dt. 13/01/20 as illegal. 2. In course of hearing Mr. Soumyajyoti Biswal, learned counsel for the Petitioner by beautifully W.P.(C) No.41455 of 2023 Page 1 of 6 demonstrating the facts of the case, submits that the Sub-Registrar has not followed the legal procedure as prescribed to register the document and without verifying and following the procedures has allowed a dead person to register the documents (sale deeds) in favour of the vendee which in essence is illegal and unsustainable in the eye of law. He further submits by taking this Court through Rule 66 of Orissa Registration Rules,1988 that when a document is presented before the Registering Authority for registration, he shall require the executant of such instrument to furnish the best testimony available to establish their identity, but ignoring such provision, the Sub-Registrar in this case has registered the document and thereby, such registration of document is not only illegal but also inoperative. Mr. Biswal further by taking this Court through the citation in Asset reconstruction Company (India) Limited V. S.P. Velayutham and others; (2022) 8 SCC 210, submits that the declaration as sought for by the Petitioner in this case is a declaration in the nature of the Act of the Sub- W.P.(C) No.41455 of 2023 Page 2 of 6 Registrar to be illegal, but not the sale deed and, therefore, the writ is maintainable. 3. Mr. S.K Rout, learned ASC appearing on behalf of OP No.1 very fairly concedes that the fraud has been practized upon the Sub-Registrar but he, however, submits that since the nature of relief as claimed by the Petitioner is declarative in nature, the Petitioner has to approach the Civil Court. Mr. Rout, accordingly, prays to dismiss the writ. 4. In the aforesaid circumstance, since the Petitioner has claimed that the act of the Registering Authority is illegal, but it is not in the strict sense of declaration as required U/S. 34 of the Specific Relief Act and thereby, the prayer of the Petitioner may be amenable under writ jurisdiction, this Court considers it apt to extract the prayer as advanced by the Petitioner
Decision
in the writ petition, which reads as under:- “That in light of the facts and position of law stated above this Petitioner prays this Hon’ble Court to find and be pleased to: 1. To declare the act of registration of the sub-registrar, Jatni, Khurda in registering sale deed No. 1112003598 dt. 22/10/20 and 11122000113 dt. 13/01/20 as illegal and negate the same; W.P.(C) No.41455 of 2023 Page 3 of 6 2. To pass any other orders in the interest of justice. And for this act of kindness the Petitioner as in duty bound shall ever pray.” 5. The prayer as advanced explicitly depicts a situation where the petitioner is seeking a declaration of sale deed as illegal, but he has couched such prayer in other words by describing to declare the act of registration as illegal, however, in essence the prayer as advanced is for a simple declaration of sale deeds as illegal. This Court, however, feels it profitable to refer to the decision in Asset reconstruction Company (India) Limited(supra), wherein the Apex Court in paragraph Nos. 50 and 53 has stated as under: in a suit “50. The first of the aforesaid three steps may be challenged for declaration that the registered document is null and void, either on the ground that the executant did not have a valid title to pass on or on the ground that what was found in the document was not the signature of the executant or on the ground the executant was obtained by fraud, coercion etc. the signature of that 53. In suits for declaration of title and/or suits for declaration that a registered document is null and void, all the aforesaid three steps the entire process of which comprise execution and registration come under challenge. If a party questions the very execution of a document or the right and title of a person to execute a document and W.P.(C) No.41455 of 2023 Page 4 of 6 present it for registration, his remedy will only be to go to the civil court.xx xx xx” 6. On a careful consideration of the prayer of the petitioner in the writ petition together with its averments, it ex-facie discloses that the petitioner not only challenges the act of registration of the Registering Authority for not following the procedure of law/rule governing registration of instrument, but also he challenges the execution of the sale deeds on the ground of fraud for getting the same executed by a dead person. Thus, the principles laid down by Apex Court in paragraph-50 of Asset reconstruction (supra) are clearly applicable to this case at hand. True it is that the Petitioner has assailed the act of the Registering Authority for not following the procedure, but in essence he has sought for a declaration of the sale deeds as void in the guise of declaring the act of registration illegal, which in the circumstance the Civil Court only has the power to grant such relief. Further, the writ petition also demonstrates some disputed questions of fact, which is required to be adjudicated by any competent Court of law, but not writ Courts since W.P.(C) No.41455 of 2023 Page 5 of 6 disputed question of facts cannot be gone into in writ petition. For the reasons hereinbefore and taking into account the prayer as advanced by the Petitioner seeking a declaration of the sale deed as illegal in essence, the present writ petition is not maintainable. 7. In the result, the writ petition stands disposed of as not maintainable, but the Petitioner is at liberty to approach the appropriate forum for redressal of his grievance. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 6th day of November, 2024/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 07-Nov-2024 17:36:15 W.P.(C) No.41455 of 2023 Page 6 of 6