Ramasamy v. Th District Registrar

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.06.2020 C O R A M THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU Ramasamy ... Petitioner Vs.

1.The District Registrar, District Registration Office, Periyakulam, Theni District.

2.The Sub Registrar, Sub Registration Office, Theni.

...Respondents

PRAYER: Writ Petition filed under Article 226 of the constitution of India, to issue a writ of Certiorarified Mandamus, to call for the records relating to the impugned order vide Na.Ka.No.5308/E2/2018 dated 31.05.2019 and quash the same and consequently direct the Second Respondent to cancel the registration of an unilateral cancellation deed of the petitioner's sale deed vide Doc.No.292/1994 dated 04.02.1994. For Petitioner : Mr. R.Venkateswaran For Respondents : Mr. V.Anand Government Advocate

ORDER

Heard Mr. R.Venkateswaran, Learned Counsel for the Petitioner and Mr. V.Anand, Learned Government Advocate, who takes notice for the Respondents through video conferencing and perused the materials placed on record, apart from the pleadings of the parties.

2.

The father-in-law of the Petitioner viz., Veeramuthu Gounder had executed the Sale-Deed dated 31.01.1994 registered as Document No. 232 of 1994 in the Office of the Sub-Registrar, Theni, transferring the property measuring an extent of 31⁄2 cents 1/5

in Ayan S. No. 754/10 and 754/11, Allinagaram Village, Theni Taluk, in favour of the Petitioner. Subsequently, the said Veeramuthu Gounder by a Deed of Cancellation dated 04.02.1994 registered as Document No. 292 of 1994 had unilaterally cancelled the aforesaid Sale Deed dated 21.01.1994 executed in favour of the Petitioner. According to the Petitioner, the said Veeramuthu Gouder subsequently died without informing of that cancellation and on coming to know about the same when he applied for encumbrance certificate of the property for availing bank loan, he had made a representation dated 20.12.2018 to the First Respondent seeking to cancel the unilateral Cancellation Deed. The said representation was disposed by the First Respondent in his order Na.Ka. No. 5308/E4/2018 dated 31.05.2019 stating that the Petitioner has to work out his remedy before the Civil Court, in that regard. Aggrieved thereby, the Petitioner has filed this Writ Petition challenging the aforesaid order.

3.

In this regard, reference may be made to the decision of the Hon'ble Supreme Court of India in Satya Pal Anand -vs- State of Madhya Pradesh [(2016) 10 SCC 767], in which it has been held as follows:- "40. ....At the same time, once the document is registered, it is not open to the Registering Officer to cancel that registration even if his attention is invited to some irregularity committed during the registration of the document. The aggrieved party can challenge the registration and validity of the document before the Civil Court...."

The order impugned in this Writ Petition, which is in confirmity with that legal position, does not require any interference by this Court.

4.

Having regard to the relief sought by the Petitioner, it would be necessary to refer to Section 31 of the Specific Relief Act, 1963, which reads as follows:- "31. When cancellation may be ordered:-

(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation." The said statutory provision in no uncertain terms enables the Petitioner to institute suit before the jurisdictional Civil Court 2/5

for the relief that he wants. There is no explanation from the Petitioner in the affidavit filed in support of the Writ Petition for not having resorted to that efficacious remedy. In this backdrop, it may be recapitulated here that the Hon'ble Supreme Court of India in CCE -vs- Dunlop India Limited [(1985) 1 SCC 260], has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction, as follows:- "3.

Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged." 5.

That apart, the nature of disputes sought to be agitated by the Petitioner in the Writ Petition involve various disputed question of facts which require recording of evidence of the parties on their respective claims, which are absolutely private in character and does not have any element of public law involved, which could be decided in summary proceedings under Article 226 of the Constitution. In this regard, reference may be made to the decision of the Division Bench of this Court in P.Rukumani -vsAmudhavalli (Judgment dated 17.07.2019 in W.A. No. 229 of 2018), in which the question whether Writ Petition under Article 226 of the Constitution challenging the validity of the registration of documents made under the Registration Act, 1908, could be entertained came up for consideration, and it has been held as follows:- "9.

Considering the submissions made at the bar, we are of the clear opinion that in a case relating to execution of a conveyance deed or a sale deed or cancellation thereof, if there is any dispute about the rights of the parties involved therein, the only appropriate remedy for the parties is to approach the Civil Court by way of civil suit.

will be subject to decree of Civil Court in case such a dispute arises.

10. We are of the clear opinion that such a relief could not have been sought or granted in Writ Jurisdiction under Article 226 of the Constitution of India. The civil rights of the parties based on relevant evidence can only be determined by a Civil Court by a competent Civil Court and not by the writ Court under Article 226 of the Constitution of India. Such private rights of the parties cannot be made a subject matter of writ jurisdiction. The writ petitions under Article 226 of the Constitution of India lie only against the State or instrumentality of the State as defined under Article 12 of the Constitution of India. Therefore, such determination of private civil rights of the parties cannot be made subject matter of writ petition." 6.

On a conspectus of the aforesaid binding decisions viz-aviz statutory provisions, the following legal position would emerge:- (i) it is not open to the Registering Authority to cancel the registration of a document which has already taken place, even if there is some irregularity committed during the registration of the document;

(ii) the aggrieved party has to challenge the validity and registration of the document before the jurisdictional Civil Court invoking Section 31 of the Specific Relief Act, 1963; and (iii) if the jurisdictional Civil Court finds in such suit instituted that the registered instrument is void, it shall send a copy of that decree to the Registering Authority, who shall note on the copy of the instrument contained in its books the fact of its cancellation.

7.

In the upshot, the Writ Petition, which cannot be admitted, is dismissed. It is made clear that no view has been expressed by this Court on the correctness or entitlement on the merits of the claim made by the Petitioner. No costs. Sd/- Assistant Registrar(CS) // True Copy // / /2020 Sub Assistant Registrar(CS) ta/sj 4/5

Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

To 1.The District Registrar, District Registration Office, Periyakulam, Theni District.

2.The Sub Registrar, Sub Registration Office, Theni.

+1 CC to M/s.R. VENKATESWARAN, Advocate ( SR-97583[F] dated 12/11/2019 ) W.P.(MD)No.23577 of 2019 05.06.2020 SPU(16.07.2020) 5P 4C 5/5