PLD 1965 Azad J&K 1 (PLP)

ABDUL HAMID KHAN, C. J.‑Brief facts giving rise to this appeal are briefly stated as under:‑ Ali Mohammad (respondent) brought a suit for the joint possession of the suit land on the basis of a registered sale‑deed dated 11‑4‑1958 against the defendants (petitioners). An objec tion was raised by Mohammad Azim and Mohammad Hussain defendants in their written statement dated 21‑10‑61 that the registered sale‑deed on the basis of which the plaintiff had sued had been registered by the Sub‑Registrar, Bagh, who was not competent to register the same because the property which was intended to be transferred by the sale‑deed was not situated within the jurisdiction of the Sub‑Judge, Bagh and hence the sale deed was in‑effective and that no rights of ownership had devolved on the plaintiff. While the case was still in progress in the Court of Sub‑Judge, Rawalakot the sale-deed was even got regis tered by the Registrar Rawalaleot (Poonch) and, therefore, the following preliminary issue was framed by the Sub‑Judge :‑ "Is the sale‑deed under dispute illegal and not enforceable even in the presence of the registration‑ by the Registrar dated 11‑12‑1961 ? O. P. D. 1 & 2." The Sub‑Judge, after hearing the arguments gave the finding that the first registration by the Sub‑Registrar; Bagh, was void ab initao in view off the provisions of section 28.of the Registration Act. He further held that, the registration of the sale‑deed by the Registrar, Rawalakot, having been effected under section 23‑A of, the, Registration 'Act was in‑operative because the same was not effected within the time limit fixed‑by that section. He, therefore, found the preliminary issue in favour of the defendants and dismissed the suit. On appeal to the District Judge, the‑‑‑finding of the Sub‑Judge was set aside by the District Judge by his order dated 13‑5‑

63. The District Judge was of the view that the first registration of the sale‑deed by the Sub‑Registrar dated 11‑4‑58 was valid because the Sub‑Registrar, Bagh, had been authorised‑ by the Registrar under section 11 of the. Registration Act to register the sale‑deed and that even its registration by the‑registrar‑was valid in view of the provisions of .section 30 of the Registration Act under which the Registrar had‑re‑registered the deed. He, therefore, accepted the‑appeal and sent the case back to the Sub‑Judge, Rawalakot,‑for proceeding further in the case. The aggrieved party has now come in second appeal to this Court against the judgment and decree of the District Judge. The counsel appearing on behalf of the appellants argued that the first registration of the sale‑deed effected by the Sub- Registrar, Bagh, was void because he had no jurisdiction to register it and re‑registration of the sale‑deed too by the Registrar was not valid because the document was not presented to him for registration within time. It was further argued that in view of the provisions of, the section 52 of the Transfer of Property Act, the property which is the subject matter of the suit cannot be transferred or otherwise dealt with by any party to the suit or otherwise dealt with by any party to the suit or proceeding so as to affect rights of any other party thereto and, therefore; the suit .land could not be transferred to the plaintiff on 11‑12‑61 when the sale‑deed was registered by the Registrar, Rawalakot. In reply it was conceded that the first registration by the Sub‑Registrar, Bagh, was void because the property mentioned in the sale‑deed which was registered, by the Sub‑Registrar, Bagh, was not situate within the jurisdiction of the Sub‑Registrar, Bagh. As regards the registration of the sale‑deed by the Registrar; Rawalakot, it was pointed, out that. the registration had been effected under section 30 of the Registration Act which conferred wide and unfettered powers on the Registrar to receive and register any document which might be registered by any Sub -Registrar subordinate to him. As for the point that during the pendency of the suit transfer of the sit land cannot be effected by any party to the suit in view of the provisions of section 52 of the Transfer of Property Act, it was pointed out that the vendors who had appeared before the Registrar, Rawalakot, at the time of re‑registration of the deed were not parties to the suit and therefore they were free to transfer, the suit land in favour of the plaintiff. There is a good deal of force in what has been stated by the learned counsel for the respondents. As far the re‑registration of the document which is accepted for registration by a Registrar or a Sub‑Registrar from a person not duly empowered to present the same and has been registered, section 23‑A of the Registration Act authorises re‑registration and lays down the procedure to be followed by the Sub‑Registrar or Registrar and also prescribed the time limit during which such e: registration can be affected. The. registration of the document in the present case by the Registrar does not fall under section 23‑A of the Registration Act. In the present case as is clear from the record the document was originally presented for registration to the Registrar Rawalakot who then had his headquarters at Bagh because it was convenient for the parties to the sale‑deed to have it registered there. The Registrar instead of registering the document himself made it over to the Sub‑Registrar, Bagh, for registration. It may be pointed out here that after the War of Liberation the administration of Azad Jammu & Kashmir area was topsyturvy and the process of restoration of normal conditions was, gradual. Even now the conditions prevailing here cannot be said to be absolutely normal and for this reason non‑judicial stamps for the execution of documents outside the District Head quarters were usually not available till recently. In 1958 Rawalakot was not even a Tahsil Head‑quarter and for this reason stamps were not available there. It was, therefore, more convenient .for the parties. to the sale deed to execute the deed at Bagh and also to get it registered there, instead of presenting the same for registration to the Sub Registrar, Rawalakot. Since the Sub‑Registrar; Bagb, had no jurisdiction to register this sale‑deed it was presented for. regis tration to the Registrar' who under the impression that he had .the powers to do so made it over to the. Sub‑Registrar, Bagh, to register the same The Sub‑Registrar, Bagh, registered ‑the docu ment in compliance with the orders of the Registrar but appended a note that though , he had no jurisdiction to register the sale deed he had done ,so under orders of .the Registrar. When objection was raised to the validity of this deed, in the written statement, by Mohammad Azeem and Mohammad Hussain defendants, the vendors to the sale‑deed again approached the Registrar for registration of the document and the Registrar realising his mistake registered the same `document 'over again which had already been registered by the Sub‑Registrar, Bagh. We do not treat, the representation of the document to the Registrar by the vendors for registration as a presentation for the second time. We feel that the presentation of this document to him by the vendors was in accordance with law and if he made it over to the wrong Sub‑Registrar .for registration the parties to the deed could not, be made to stiffer for the fault of the Registrar; because to act , of court should prejudice any party. We are also of the opinion that since the initial presentation to the Registrar for registration was by the proper person, the registration of the deed by the Registrar does not fall under section 23‑A but under section 30 of the Registration Act under which he has wide and unfettered powers as held in 181 Ind. Cas. 24 and 187 Ind. Cas.

295. It may be pointed out that the case which was before their Lordships of the Nagpur High Court in 181 Ind. Cas. 24 had again come up before their Lordships in 187 Ind. Cas.

295. In this case before their Lordships of the Nagpur High Court the plaintiff appellants had sued on a mort gage deed dated December 14, 1928 for Rs. 4,

000. The property covered by the mortgage was situate at Balaghat but by a mistake on the part of everybody concerned, including the Sub‑Registrar, the document was registered at Baihar although no portion of the property was situate within the jurisdiction of the Sub -Registrar there. There was no mis‑description and there was no fraud, nor was there any attempt to mis‑lead. As is clear from the judgments all the parties as welt as the Sub‑Registrar at Baihar had acted in perfect good faith. The situation of the property as given in the deed was "Mousa Lamta Tehsil and District Balaghat." Both Lamta and Baihar were in Balaghat District and that in itself afforded no indication as to whether Lamta lay within the jurisdiction of the Sub‑District of Baihar or of Balaghat. It was held that in such a case when the document had wrongly been registered at a place where no portion of the property was situate within the jurisdiction of the Sub‑Registrar, the defect was one of jurisdiction not curable under section 87 of the Registration Act and was enough to enable the parties to present the document for re‑registration and was enough to enable A the proper registering authority to proceed as if the document was being presented before him for registration for the first time and no question of limitation could arise because there was no limitation for the re‑registration of a document. It was further held that the discretion conferred by section 30 (1) Registration Act was wide and unfettered, that it was not controlled in so far as representation of the document which had been accepted and duly registered in wrong place by either section 32 or 34 or by any other provisions of Part VI or any other Part of the Registra tion Act and that these provisions dealt with initial presentation and did not refer to representation of a document which had been accepted for registration and duly registered in the wrong place through a mistake of the registering authority for which the parties were not responsible and that these sections did not impose a time limit or any other restriction on representation, and that the discretion was not lightly to be exercised and that it should not be exercised at all when there was gross negligence or care lessness or fraud. It was further held that where a Sub‑Registrar of a Sub‑District having no jurisdiction to accept for registering a document had wrongly accepted and duly registered it, the District Registrar having control over such, Sub‑Registrar and the Sub‑Registrar by whom the document ought to have been registered could remedy the wrong and register the document. According to section 30 (1), Registration Act, any Registrar may in his discretion receive and register any document which might be registered by any Sub‑Registrar subordinate to him. In the case before us the document was presented to the Registrar for registration within 4 months though it was registered by him after about 3' years. It was argued on behalf of the appellants that section 30 of the Registration Act was controlled by the provisions of section 23 of the Registration Act in so far as pre sentation of the document for registration within a certain time limit was concerned. According to him when the Registrar was again moved by the vendors to effect the registration of the sale deed which had been wrongly registered by the Sub‑Registrar, Bagh, it was an act of new presentation and as such time‑barred. The Nagpur view is that section 30 is not controlled by either section 32 or section 34 nor by any other provisions of Part VI or any other Part of the Registration Act. In the case before us we do not feel the necessity of adjudicating whether section 30 of the Registration Act is or is not controlled by sections 23, 32 and 34 or by any other provisions of Part VI or any other Part of the Registration Act because the sale‑deed was first presented to the Registrar at Bagh within 4 months and that if he wrongly made it over to the Sub‑Registrar, Bagh for its registration it means that he did not dispose it of as he was bound to do under the law and that the correct disposal of the sale‑deed was effected by him when he realised his mistake and registered it on 11‑12‑

61. We, therefore, repel the contention of the learned counsel for the appellants that the registration of the sale‑deed in question was effected by the‑ Registrar out of time. We may here add that when a document is presented to the registering authority for registration within time there is no time limit fixed during which the registering officer is bound to register it. We, for the reasons stated above, uphold the judgment of the District Judge on this point. As for the provisions of section 52 of the Transfer of Property Act we do not think the same are applicable to this case because here the vendors who got the deed registered by the Registrar on 11‑12‑61, during the pendency of the suit were not parties to the suit. The result is that the appeal fails. The case shall go back to the trial Court for proceeding further in the matter. Costs to follow the event. K.B.A. Appeal dismissed.