SK MD ISMAIL Vs. SK ANWAR ALI

JUDGEMENT

(1.) This appeal is against an appellate Judgment and decree passed by the Second Court of Sub Judge, Hooghly, confirming a judgment and decree of the Second Court of Munsif, Serampur. The facts of the case out of which the appeal arose may be briefly stated as follows :--

(2.) One Sk. Abdul Matin, the defdt. No.1 in the Original Suit in the Munsif's Court sold the disputed property to the respondent-plaintiff Sk. Anwar Ali on 3-8-1971 for a consideration of Rs. 500.00 and executed a sale deed, but the registration of the deed was deferred at the instance of the said defdt. till 10-8-1971. On 10-8-1971, however the said defdt. No.1 refused to register the document. On 12-8-1971 the respondent presented the deed for registration before the Sub-Registrar. but deldt. No.1 did not appear before the Sub-Registrar in spite of service of notice upon him. The Sub-Registrar, concerned ultimately refused to register the deed on 20-9-1971. An appeal was filed before the District Registrar against the order of the Sub-Registrar, but the Registrar also refused registration of the document by an order dated 19-12-1972. A suit was subsequently field on 24-1-1973 before the Munsif's court under Section 77 of the Registration Act, 1908 for a declaration that the relevant sale deed was executed by the said defdt. Sk. Abdul Matin in favour of the respondent plaintiff and for a direction upon the Sub Registrar to register the same. The defdt. No.1 the original defdt, contested the suit by filing a written statement denying the alleged and the execution of the deed and also the receipt of the alleged consideration money. According to him the respondent-plaintiff fraudulently got his thumb impression on some Demi papers and stamped papers on the pretext of obtaining some loan for him and taking advantage of his blindness prepared a sale deed Subsequently however, he sided with the plaintiff and compromised the suit with him. He actually deposed for the plaintiff admitting the execution of the deed and expressing his willingness to register the same. At this stage the present appellant before this court was added as defdt. No.2 in the original suit at his own prayer and it was he who contested the suit before the Munsif's court and having lost there filed an appeal before the first appellate court. The first appellate court having confirmed the Munsiff's Court's judgment the appellant has filed this appeal against the said judgment of confirmation.

(3.) Mr. S.K.Banerjee appearing for the appellant attacks the judgment of the Subordinate .Judge on several grounds. His first ground of attack is that the suit under Section 77 of the Registration Act, 1908 was barred by limitation and that the courts below condoned the delay in filing the suit by a wrong application of Section 5 of the Limitation Act, 1908. His Second ground of attack is that the issue regarding Limitation was decided against the original defendant when the present appellant was not in the picture i.e. before his being added a party to the suit, but that the Id. Sub-judge declined to interfere with the decision by applying the principle of res judieata which was in fact an outrageous application of the said principle to the facts of the present case. His third ground of attack is that original defendant having filed a written statement challenging the plaintiff the plaintiff-respondent's case and contesting the suit on the point of limitation collusively joined the plaintiff respondent without withdrawing his written statement. His evidence was, therefore, against his pleading and was not acceptable according to law. His last point of attack is that the suit was not maintainable in the absence of the Sub Registrar who was a necessary party.