Thursday 1 March 2012

Whether sub registrar can decide serious question of fraud and manipulation?

Where a serious question of fraud and manipulation is raised in a summary proceeding, like the one engaged attention of respondent no. 1, it would not have been a substitute to decide the serious civil dispute which has the effect of transferring of immoveable property from its owner to another. When the document was not presented by the proper person before the Sub Registrar and the executant denied its execution, etc. I am of the view that remedy lie by filing a civil suit for declaration and specific performance and not in the summary proceedings under Section 72/73 of the Act


Case :- WRIT - C No. - 12312 of 2010 

 Smt. Raisa Begam Vs  District Registrar, Saharanpur & Anr. 

Hon'ble Sudhir Agarwal,J.
1. The writ petition is directed against the order dated 11.2.2010 passed by respondent no. 1, i.e. District Registrar, Saharanpur, in Appeal No. 3/4/2007, allowing the application of respondent no. 2 under Section 72/73 of the Indian Registration Act, 1908 (hereinafter referred to as the 'Act'), directing Sub Registrar to register the instrument allegedly executed by the petitioner in respect to property in dispute, mentioned in the alleged sale deed dated 28.2.2007. 
2. Brief facts giving rise to the dispute are as under: - 
3. The petitioner is the owner of Plot No. 334 Hata No. 264 measuring 0.7630 hectares at Mauza Salampur, Village Bhukadi, District Saharanpur. Respondent no. 1 filed an application on 9.5.2007 under Section 73 of the Act, alleging that the petitioner has executed an instrument on 28.2.2007 in respect to the said property, affixing her signature and thumb impression on the sale deed, registration whereof has been denied by the Sub Registrar, hence, he be directed to register the same. It is also alleged that total consideration was Rs. 3 lakhs out of which Rs. 2,50,000/- was paid and Rs. 50,000/- would be paid at the time of registration. 
4. The aforesaid application was initially rejected by the Registrar by order dated 28.2.2007 where against, an appeal was filed which has been allowed by means of the impugned order. The petitioner submitted, when she came to know of a forged sale deed prepared by respondent no. 2 allegedly having the signature and thumb impression said to be that of petitioner, she also filed a complaint under Section 156 (3) Cr.P.C for registering a case against respondent no. 2. He also stated that in respect to the said property, respondent no. 2 has filed Original Suit No. 289 of 2007 seeking permanent injunction restraining the defendant from interfering in the peaceful possession of the plaintiff, i.e. respondent no. 2 herein. In the aforesaid suit, the petitioner is impleaded as defendant no. 1. The property details given in the plaint of the aforesaid suit is reproduced hereunder: -

"Details of Property: -
Haqooq Bhumidhari pertaining to land measuring 0.7630 hectare pertaining to Khasra No. 334 Hall Khata No. 264 along with 367 Poplar Trees including all the rights and incorrect therein, situated in Village Salampur, Bhukadi, Pargana, Tehsil and District Saharanpur."
5. The Trial Court granted interim injunction to respondent no. 2, but the petitioner challenged the said injunction order in Writ Petition No. 39831 of 2008 wherein an order of status quo was passed by this court. This matter is pending.
6. It is said that the civil rights of the petitioner cannot be adjudicated adversely in summary proceedings by respondent no. 1 in the purported exercise of power under Section 73 of the Act and the impugned order is wholly without jurisdiction.
7. Respondent no. 2 has filed a detailed counter affidavit stating that the petitioner had half share in the property in dispute. The remaining half was already purchased by respondent no. 2 from the owner by the sale deed dated 11.3.1992 and mutation in respect thereto has already been made in favour of respondent no. 2. Total area of Plot No. 334 is 1.5260 hectares out of which, petitioner and respondent no. 2, both had their ownership to the extent of 50% each. The petitioner desired to sell out her share for consideration of Rs. 3 lakhs in pursuance whereof, she was paid Rs. 2,50,000/-. On 28.2.2007, the petitioner accompanied respondent no. 2 to the Office of Sub Registrar for registration of the sale deed. Stamp papers were purchased and the instrument was drafted. The petitioner signed thereon and thereafter, it was presented before Sub Registrar. At that time, the petitioner complained about feeling unwell and left the Office of Sub Registrar, stating that she would come on the next date. Thereafter, she did not visited the Office of Sub Registrar despite repeated requests. Since the petitioner thereafter declined to proceed for registration, respondent no. 2 moved an application in the Office of the Registrar on 9.5.2007 for registration of the sale deed dated 28.2.2009. On denial by the Sub Registrar, the appeal was filed before the Registrar which has been rightly allowed after considering the relevant evidences on the matter and proof of execution. It is said that no interference was made by this Court.
8. There is another counter affidavit also filed by respondent no. 2 which is quite brief in the matter.
9. A separate counter affidavit has been filed by respondent no. 1 justifying his order. Nothing substantial has been stated otherwise.
10. The question up for consideration in this case is "whether the order passed by respondent no. 1 directing for registering the instrument dated 28.2.2009, is legal and within jurisdiction or not". The ancillary but necessary question which requires consideration is "whether the document/instrument could have been registered by the Sub Registrar though the seller has not admitted execution of the document and instead has challenged the same as forged and fictitious".
11. For adjudicating this question, it would be necessary to refer certain provisions of the Act.
12. Initially the codified enactment was made vide Registration Act No. XVI of 1864 which came into force in the Presidencies of Bengal, Madras and Bombay. It was replaced by Indian Registration Act, 1866 (XX of 1866), 1871 (VII of 1871), 1877 (III of 1877) and thereafter by the present Act of 1908.
13. Section 23 prescribed time for presenting documents. It says, subject to the provisions contained in Sections 24, 25 & 26, no document, other than a will, shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution.
14. Here three things are mentioned. One is 'presentation' before proper officer, execution of the document and third is the time i.e. four months from execution.
15. The term 'Presentation' as such has not been defined but Part-6, Sections 32 to 35 deals with 'Presentation of document for registration'.
16. Section 32 says that the document shall be presented at the proper registration office by a person, executing or claiming under the same or by the agent of such person, representative or assign, duly authorized by power of attorney executed and authenticated in the manner mentioned in subsequent sections.
17. Section 32(A) inserted by U.P. Act No.29 of 1989 which came into force on 11.5.1989 provides for supplying photostat copies of documents presented for registration alongwith the document.
18. The provisions are wide enough to cover presentation of document before the registering officer having jurisdiction to register the same as it can be presented either by the person executing it or any one authorized by him or otherwise represented in a valid manner.
19. The 'Presentation', however, does not mean a mere physical handing over the document to the Registrar.
20. In "Jambu Prasad Vs. Muhammad Nawab Aftab Ali Khan and others, AIR 1914 Privy Council 16", two mortgage deeds were presented for registration by the Sub-Registrar. One was presented by Nathu Mal, an agent of the mortgagee and another by Ilahi Baksh, another agent of the mortgagee. Ilahi Baksh held a power of attorney of the mortgagee which did not empower him to present document for registration. The mortgagors also appear before Sub-Registrar and acknowledged execution and completion of mortgage deed as also the receipt of money whereupon the Sub-Registrar registered the document. This was a matter under old Registration Act namely Act III of 1877.
21. The Privy Council approved and followed an earlier decision of this Court in Ishri Prasad v. Baijnath (I.L.R. 28 All. 707) wherein the Court has observed "His (the Sub-Registrar's) jurisdiction only comes into force if and when a document is presented to him in accordance with law". The Court, referring to another decision, observed that Registrar or Sub-Registrar under Act III of 1877 would have no jurisdiction to register document unless he is moved to do so by a person who has executed or claims under it, or by the representative or assign, duly authorized by power of attorney executed and authenticated in the manner prescribed in Section 33 of that Act. It also observed that the executants of a deed who attend the Registrar or Sub-Registrar merely to admit that they have executed it, cannot be treated for the purpose of Section 32 of Act III of 1877 as presenting the deed for registration. They, no doubt, would be assenting to the registration, but that would not be sufficient to give the Registrar, jurisdiction to register the document.
22. The Privy Council also observed that object of Sections 32, 33, 34 & 35 of Act III of 1877 was to make it difficult for any person to commit fraud by means of registration under the Act. It is the duty of the Courts not to allow imperative Provisions of the Act to be defeated.
23. In "Sri Sri Sri Kishore Chandra Singh Deo Vs. Babu Ganesh Prasad Bhagat and others", AIR 1954 SC 316, four Judges Bench of the Apex Court, in the context of Sections 32 & 33 of Registration Act, 1908 observed "Where, therefore, a document is presented for registration by a person other than a party to it or his legal representative or assign or by a person who is not an agent authorized in the manner prescribed in Section 33, such presentation is wholly inoperative, and the registration of such a document is void".
24. With reference to Section 68, the Court said that statement by attesting witness deposing that he has attested the document executed by A in favour of B and that other attestators also witnessed its execution is a sufficient evidence of valid attestation.
25. In "Deo Singh and others Vs. Mt. Rani Dulaiya Judeo, AIR 1932 Allahabad 63", a Division Bench of this Court with reference to Section 32 of Registration Act, 1908 held that a document, though physically handed over by the servant of a Pardanashin lady in her presence, at her request, would amount to presentation of document by lady herself. The Sub-Registrar was right in making endorsement on the document that it was presented by the lady herself. Has it been done in absence of the lady, situation would have been different and in that case the servant ought to have produced a proper authentication and authorization.
26. In "Bharat Indu and others Vs. Hakim Mohammad Hamid Ali Khan and others, 1921 Privy Council 93", considering Section 33 of Registration Act, 1877 (old Act) it was held that provisions of Registration Act had been carefully designed to prevent forgeries, procurement of conveyances or mortgages by fraud or undue influence. It also said, sometimes it may seem to be somewhat technical to insist upon exact compliance with the provisions of the Act but in order to achieve object of the Act, it is necessary to do so. The Privy Council relied on its earlier decision in Jambu Prasad (supra).
27. In "Puran Chand Nahatta Vs. Monmotho Nath Mukherjee and others, 1928 Privy Council 38", considering Section 35 of Registration Act, 1877 explaining the word 'executing', it said that vide Section 35, registration is directed when certain persons have appeared, duly identified, and have admitted execution of the document propounded. The necessary persons are "the persons executing the document." The appellant contends that in these words, 'executing' means and means only "actually signing". The Privy Council did not accept this. A document is executed, when those who take benefits and obligations under it have put or have caused to be put their names on it. Personal signature is not required, and another person, duly authorized, may, by writing the name of the party executing, bring about his valid execution, and put him under the obligations involved. Hence the words "person executing" in the Act cannot be read merely as "person signing". They mean something more, namely the person, who by a valid execution enters into obligation under the instrument. When the appearance referred to is for the purpose of admitting the execution already accomplished, there is nothing to prevent the executing person appearing either in person or through an authorized and competent attorney in order to make a valid admission.
28. In Wilaiti Begum Vs. Fazal Husain Khan, 9 A.L.J.R 148=13 Ind Cases 961, the father of lady did not have authority by power of attorney within the meaning of Section 32 of the Registration Act, 1877. The Court found that she herself had gone to registration office, was present in a Doli when the document was handed to the Registrar by her own father, and admitted execution and receipt of money. The Court held it a presentation of document by the lady herself.
29. In Nath Mal and another Vs. Abdul Wahid Khan and others, 1912 (34) ILR (All.) 355, Section 32 of Registration Act, 1877 was considered. The Court said:
"It seems to us that the word "presented" has a technical meaning................... We think, however, that where the executants were present acquiescing in the handing over of the document to the Registrar for registration, the document was being "presented" by them for registration within the meaning of the Act."
30. In Maung Mya Maung Vs. A.R.M.M. Meyappa Chettyar, AIR 1940 Rangoon 297, the Court said that no doubt it is not necessary that physical act of presentation be performed by the executor. But it is necessary to show more than mere attendance for the purpose of admitting execution. It is necessary to show that the obliger joined in the presentation or the presentation was made at the request of the obliger or on behalf of the obliger.
31. A Full Bench of this Court in Khalil-Ud-Din Ahmad Vs. Banni Bibi, 1913 (35) ILR (All.) 34 (decided on 5.11.1912), observed that registration following a bad presentation is illegal. It also held that there cannot be any presumption of document being presented by the proper person before Sub-Registrar. On the contrary it is a matter of fact which has to be proved.
32. In Barkhurdar Shah Vs. Mt. Sat Bharai and another, AIR 1931 Lahore 677, the deed was brought to the Sub-Registrar for registration by donor's counsel. Sub-Registrar endorsed it as having been presented by counsel and returned to donor. Subsequently, the Sub-Registrar went to donor's residence and registered deed after presentation by donor and admission of execution by donor. The word 'presentation' could not be recited on the deed. It was held to be a proper presentation.
33. Similarly in Satrohan Singh Vs. Ganga Bakhsh Singh, AIR 1919 Oudh 201, the executant of a document was present. The document was presented to the registering officer on his behalf and with his assent. Mere not presenting physically by him was held immaterial. The document was held as presented validly.
34. Section 35 requires for satisfaction of the Registrar about execution of the document. If a document is properly presented and its execution is admitted by the competent person, as prescribed in statute, the Registrar has no option but to register the document. The purpose of Registration Act was to mitigate litigation in regard to property which in the absence of any documentary evidence was creating lot of administrative and otherwise problem to the then Government. It neither confers title upon the concerned person nor validates it but only recognizes execution of document relating to a transaction pertaining to property of the person concerned and acts like evidence to prove such transaction in the manner it is written in the document and registered with the Registrar.
35. In Jogi Das and others Vs. Fakir Pandey, AIR 1970 (Orissa) 22, it was observed that the object and purpose of Registration Act, amongst other things, is to provide a method of public registration of documents so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud. Registration lends inviolability and importance to certain classes of documents.
36. This was also reiterated in Hakim Gulam Mohd. Vs. Dr. Zahoor Ismail., AIR 1970 (Rajasthan) 171, that the object of Registration Act is to prevent people being duped into purchasing a property from a person who does not own it. There is a distinct public policy behind the Registration Act. Hence the purpose which governs the interpretation of Stamp Act can not be applied to the interpretation of Registration Act.
37. The registration, therefore, in the light of provisions of Registration Act is an act of officer appointed by law who is bound to register the document, if the conditions prescribed by the Act are satisfied. If the document is presented to the Registrar by a person entitled to present a document for registration, the registering officer shall not inquire whether the executant of the document has executed with a willing mind or not; nor he is supposed to inquire about the truth or falsity of any recital in the deed etc. What Section 35 requires is that he has to satisfy himself only about the execution of document by the person concerned. Section 35 also contemplates that a person executing the document if is dead, but his representative or assign appears and admits the document, the same shall be registered as directed in Sections 51 to 61. But if a person executing the document denies its execution or is minor or idiot or is dead and his representative or assign denies its execution, then the registering officer shall refuse to register the document.
38. Section 58 requires a Registrar to endorse the signature of a person admitting execution of document. Section 59 requires the registering officer to affix date and signature to all endorsements made under Section 52 and 58 relating to the same document and made in his presence on the same date.
39. Section 60 thereafter provides that after compliance of Section 34, 35, 58 and 59, the registering officer shall endorse a certificate containing the word 'Registered' together with the number and page of the book in which the document has been copied. Meaning of registration, therefore, as provided in Sections 58 to 61 is "Registration in accordance with the provisions of the Act". It is in fact recording of the copy in Registrar office. Section 61 thereafter requires endorsement and certificate referred to and mentioned in Sections 59 and 60, to be copied into margin of the register book and the copy of the map or plan, if any, mentioned in Section 21 which is to be filed in Book No.1. Section 71 provides the reasons where the Registrar can refuse a document to be registered.
40. Therefore, first step which is of utmost importance for registration of a document under the Act is the execution and its presentation before the registering authority in the manner provided in the Act. On this aspect some light can also be thrown by the Rules framed under the Registration Act, published and compiled in Registration Manual of U.P. This was first published with a preface of the then I.G., Registration, U.P. Sri T. Stoker dated 15.10.1895 which reads as under:-
"Since the publication of the Registration Rules sanctioned in North-Western Provinces and Oudh Government notification no. 92/VII-III-6, dated the 5th February, 1886, many changes have been made and circulars issued dealing with matters both of importance and of subordinate detail. The existing rules have now been thoroughly revised, and, as far as possible, all obsolete or superfluous matter has been expunged; while the many and apparent deficiencies and shortcomings in the older rules have been supplied, and the whole re-arranged and classified under main heads in separate chapters.
2. Every effort has been made to render the publication both useful and complete; but it is not unlikely that errors, inaccuracies, and omissions may have crept in. A list of errata will, if necessary, be issued as soon as practicable after distribution, and registering officers are invited to communicate any defects that they may detect.
3. These rules supersede all existing orders whether issued by Government in the form of notifications, or by the Inspector General in the form of circular orders. All subsequent additions and alterations will be made by errata slips and the system of circular orders restricted as far as possible in future."
41. Thereafter second edition contained preface dated 22.3.1905 and third edition comes with the preface dated 1.8.1914. The third Edition was published after enactment of Act 16 of 1908. Rule 284 and onwards contain procedure for acceptance of a document for registration. Rule 285 provides for certain aspects, to be looked into by the Registering Officer when a document is presented for registration. It says:-
"285. When a document is presented for registration the points requiring the attention of the registering officer may be summarized as follows:
(1) Whether he has jurisdiction to register the document?
(2) Whether the document is time-barred?
(3) Whether the document is free from the objections in sections 19, 20 and 21?
(4) Whether the document is properly stamped?
(5) Whether the document is presented by a proper person?
(6) Whether the document was executed by the persons by whom it purports to have been executed?"
42. For the person who would present the document the matter needs be considered by the registering officer, Rule 300 provides:-
"300. If the document be not open to any of the objections set forth above, the registering officer, before finally accepting it for registration, should satisfy himself that the person presenting it has legal authority to do so. The persons who may present a document for registration are the following:
(a) in the case of a will, the testator, and after his death any person claiming under it as executor or otherwise;
(b) in the case of an authority to adopt, the donor, and after his death, the donee or the adopted son;
(c) in the case of a copy of a decree or order, any person claiming under the decree or order;
(d) in any other case, any person executing or claiming under the document;
(e) the representative or assign of any of the foregoing; (f) the agent of any of the foregoing."
43. About the identity of the person appearing, procedure is prescribed in Rule, 304, 305, 306, 307 and read as under:-
"304. When a document is accepted for registration the prescribed fees should be levied and the necessary entries made in the fees book. The counterfoil receipt should then be prepared and the receipts for the document and the fees delivered to the presenter. The registering officers should then, with as little delay as possible, enquire whether the document was executed by the alleged executant, and satisfy himself as to the identity of the person appearing before him to admit execution. He should also satisfy himself that the person admitting execution has read and understood the contents of the document and should if the person is illiterate or cannot read and understand the document will explain the nature and contents to him. If the presenter be the executant, or his representative, assign or agent, and if such executant, representative, assign or agent be present, the registering officer shall make the necessary enquiry at once.
When the registering officer is not personally acquainted with executants, he shall require them to produce persons to testify to their identity. Such persons shall, if possible, be persons known to the registering officer personally, or failing these, persons of apparent respectability. Witnesses who are unknown to the registering officer shall have their thumb impressions recorded as in the case of executants (vide rule 308, so far as it is applicable). Any distinctive physical peculiarity or marked deformity in a party or witness should be noted in the endorsement. But a descriptive roll need not be recorded except in suspicious cases. This procedure must be in addition to, and not take the place of, the procedure required by section 34, that the registering officer shall satisfy himself of their identity. Such descriptive rolls afford in themselves no proof identity.
305. The registering officer must take care that the witness is really able to identify the person to be identified. To this end the witness should be clearly and specially asked whether that person is or is not the person he professes himself to be, and what the nature of his the witnesse's acquaintance with that person is. The testimony of an identifying witness should be rejected if he has had no personal acquaintance with the person identified, but has merely been told his name for the purposes of that identification. Care should be taken that identification does not become a trade among the petition-writers, menials and hangers-on of the office. The testimony of persons who make such a trade should not be accepted.
306. In the case of documents executed by parda-nashin ladies, registering officers should be careful to obtain an admission of execution from the executant's own lips. The mere statement of the relatives or other persons accompanying her is not sufficient. The lady should be seen and identified by some person acquainted with her appearance, and the name and relationship of such person to the executant should be noted in the endorsement. The terms of the document should be explained to the executant, and if while admitting execution, she objects to any of the terms, such objection should be noted. The instructions apply to the case of all documents executed by pardanashin ladies, whether registered at the registration office or on visit or by commission at the executant's residence.
307. If execution by the alleged executant is admitted and the registering officer is satisfied on the points laid down in paragraph 1 of rule 304 he should record on the instrument the endorsement required by section 58 in one or other of the forms given in rule 384, and such endorsement should be signed by the registering officer, the executant, and all the witnesses examined; but no such endorsement is necessary on a copy of a decree or order, or on a certificate sent under section 89 of the Registration Act."
44. In the context of the above discussion, this court has to examine whether there was presentation and execution of the document in accordance with statute before the Sub Registrar, or not. What actually transpired on 28.2.2007, mainly regarding presentation and admission of the execution of the instrument before Sub Registrar, is not clear, as the report of Sub Registrar or his version is not available on record. It does not appear that any such report was obtained from Sub Registrar by respondent no. 1. It further appears that on 15.3.2007, respondent no. 2 submitted an application before Sub Registrar requesting him to issue notice to the petitioner and direct her to appear for registration of the document. The petitioner has categorically denied to have executed any document or obtained any money. It appears that two affidavits of Sri Rakesh Kumar, Son of Sri. Guru Darshan Lal and Sri Ved Prakash, Son of Sri Narain Singh were filed before respondent no. 1 stating that they are witnesses to the fact that the sale deed was drafted at the instance of the petitioner and after receiving Rs. 2,50,000/-, she signed and put on her thumb impression on the instrument. Both the aforesaid witnesses are claimed to be present in the Office of Sub Registrar on 15.3.2007 having also signed the instrument as witnesses. Merely on the basis of these two witnesses, respondent no. 1 has concluded that the document was executed by petitioner and treating the execution as he has held that the document ought to have been registered by the Sub Registrar.
45. Where a serious question of fraud and manipulation is raised in a summary proceeding, like the one engaged attention of respondent no. 1, it would not have been a substitute to decide the serious civil dispute which has the effect of transferring of immoveable property from its owner to another. When the document was not presented by the proper person before the Sub Registrar and the executant denied its execution, etc. I am of the view that remedy lie by filing a civil suit for declaration and specific performance and not in the summary proceedings under Section 72/73 of the Act.
46. The petitioner did not admit to have visited the Office of Sub Registrar on 28.2.2007. She also did not admit to have presented the document for registration.
47. The persons competent to present the document for registration are mentioned in Section 32 which reads as under:-
"32. Persons to present documents for registration.--Except in the cases mentioned (Sections 31, 88 and 89), every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper Registration Office,--
(a) by some person executing or claiming under the same or, in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
48. It is not clear who presented the document before Sub Registrar. The two witnesses who filed their affidavits before respondent no. 1, cannot be said to be the assigned or representatives of the petitioner.
49. The term "representative" has been defined in Section 2(10) reads as under:-
"2(10) "representative" includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.
50. In "The Concise Oxford Dictionary of Current English" Eighth Edition, the meaning of word "Assign" is given as under:
"Assign:-1. (a) allot as a share or responsibility, (b) appoint to a position, task, etc. 2. fix for a specific purpose, 3. ascribe or refer to, 4. transfer formally to a person to whom property or rights are legally transferred"
51. "The New Lexicon Webster's Dictionary The English Language", Deluxe Encyclopedic Edition, defines the word "Assign" as under:
"Assign:- to give as a share, allot, to assign positions to people; to nominate, appoint, to assign a person to a position; to give or make over; to fix or determine; to ascribe to a given time, authorship, origin, class; to give as a task"
52. Thus the above meanings of the words "Representative" and "Assign" would and could n ot have included the two witnesses unless they prove otherwise no such evidence is referred. One of the important requirements under Section 34(3) is that the registering officer has to enquire whether the document was executed by the person by whom it is alleged to have been executed. He has to satisfy himself as to the identity of the person appearing before him and alleging that he has executed the document. In case any person appears as a representative, assign or agent, the Sub Registrar has to satisfy himself of the right of such person to appear. A cumulative reading of all three aspects would show, where the person who is alleged to have executed a document himself is present before the Sub Registrar, there is no reason or occasion to hold that instead of that person somebody else should tell the Registrar that the document has been executed by such person though not acknowledged by such person himself before the Sub Registrar unless it is a case of a Pardanashin lady etc. There is no document or material on record to show that any such occasion had arisen before the Sub Registrar where he could comply with the requirement of his satisfaction under Section 34(3) of the Registration Act. In fact the documents available do not show and prove that petitioner was present in the office of Sub Registrar for some time whereafter he felt uneasiness and went away..
53. When the petitioner admittedly had denied presentation and execution of the instrument, by obtaining merely two affidavits from two persons who also have not shown as to how and in what capacity they were present and whether they identify the petitioner, or not, and in what manner and without having any opportunity to the petitioner to cross examine them, such seriously disputed questions of fact could not have been decided by respondent no. 1 in such summary proceedings. In my view, respondent no. 1 has usurped the jurisdiction of Civil Court in an illegal manner.
54. The writ petition therefore deserves to succeed. The impugned order dated 11.2.2010 passed by respondent no. 1, i.e. District Registrar, Saharanpur, In Appeal No. 3/4/2007, is set aside.
55. The writ petition is allowed with cost which I quantify to Rs. 5,000/- against respondent no. 1.
Date :- 25.7.2011

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