P L D 1955 Peshawar 48 (PLP)

Registration Act (XVI of 1908), S. 77--Suit for specific performance of contract of sale of property upon refusal to register sale deed

Not a suit under S. 77

Limitation governed by Article 113, Limitation Act (IX of 1908). A suit for specific performance of a contract of sale of property instituted after the Sub-Registrar had refused regis tration of the sale deed is not a suit under section 77 Registra tion Act, and the period of limitation for such a suit is 3 years under Article 113, Limitation Act, inasmuch as the relief asked for was against the defendant directing him to have the sale deed registered and not a direction in terms of section 77 Registration Act that the deed be registered in the Registration office if presented within 30 days of the decree. ORDER MUHAMMAD SHAN, J.

On. 23rd March 1953, Pir Muhammad Khan, son of Abdul Wadood Khan, of Mardan, presented a document dated 18th November 1952, purporting to be a sale deed of certain property, executed by Nadar Khan, son of Misal Khan, in his favour, before the Sub-Registrar, Mardan, for registration. The Sub-Registrar refused to register this document, on the ground that Nadar Khan stated before him that he had not purchased the stamp-paper, nor had he signed the document, or received Rs. 3,000, the consideration thereof. An appeal against this order of the Sub-Registrar was dismissed by the Registrar on 6th July, 1953. On 22nd October 1953. Pir Muhammad Khan institued a suit against Nadar Khan for the specific performance of the contract by having the sale deed registered after complying with all the formalities of law and also having the mutation of sole attested in his favour. The Sub-Judge 1st Class Mardan, dismissed this suit on the ground that it was barred by time. An appeal against this order was dismissed by the Senior Sub-Judge Mardan, by his order dated 24th March 1954. Pir Muhammad Khan has come up in revision to this Court. The two Courts below have found the suit barred by time, because they mistook it as having been instituted under section 77 of the Registration Act. Under this section when the Registrar refuses to order the document to be registered under section 72 or section 76, then any person claiming under such document may within 30 days after the making of the order of refusal institute in the Civil Court within the local limits of whose jurisdiction the office in which the document is sought to be registered is situate, a suit for a decree, directing the docu ment to be registered in such office, if it is duly presented for registration within 30 days after the passing of such decree. A suit under this section has a very limited scope. The Civil Court under it can do only what the registering officer could have done under the powers conferred upon him by the Registra tion Act. It has got to be guided by the same considerations, which guide the Registrar in registering or refusing to register the document presented to him. It has no jurisdiction to go into the question if the person signing the document signed it under a misapprehension or he was induced to do so as a result of deception practised upon him, or the person in whose favour the document was registered was only acting as benami, or that no consideration had passed. Virtually under section 77 of the Registration Act the Civil Court issues an order in the nature of mandamus to the Sub-Registrar, whose discretion otherwise is final subject to an appeal to the Registrar. The suit which Pir Muhammad Khan brought was certainly not a suit in which a prayer was made for directing the Registrar to register the document, if it is presented to him within 30 days of the decree. It was pure and simple a suit for the specific performance of the contract, in which certain directions were sought to be issued to the defendant as distinguished from the Sub-Registrar The defendant in his written statement had raised certain objections, which no Court hearing the suit under section 77 of the Registration Act could go into. It, therefore, clearly follows that if tile plaint and the written statement are both taken together, or separately, the suit is only for the specific performance of the contract, and would be governed by Article 113 of the Limita tion Act, for which a period of three years is fixed, The suit of Pir Muhammad Khan would, thus, clearly be within time. The result of the above discussion is that I set aside the judgments and decrees of the two Courts below, and remand the case under O. XLI, r. 23, C. P. C., to the trial Court to dispose it of according to law. Costs will follow the event. Pleader's fee Rs.

30. A. H. Petition accepted.