MOTAHAR ALI Vs. SK ABDUL MALEK

JUDGEMENT

(1.) This second appeal has been brought by the plaintiff against a decree of the District Judge of 24 Perganas in Title Appeal No. 335 of 1947, reversing the decree of the Munsif, First Court, at Basirhat in Title Suit No. 61 of 1946.

(2.) The facts which are material for the purpose of this second appeal may be shortly stated as follows : One Baharali Mandal alias Bahadur Mandal had an occupancy holding in respect of an area of .47 acres in plot No. 334 of Mouza Nehal-pur at a rental of Rs. 4/8 as under the superior landlords Sk. Md. Abdulla and others. By a document, dated 16th January, 1943, Baharali sublet .40 acres of land held by him to the appellant at a rent of Rs. 4/8 as Although the Potta was executed by Baharali on 16th January, 1943, it was not registered by him, and the appellant presented this document for registration on 13th May, 1943. Upon registration being refused by the sub-registrar the appellant filed an appeal which was unsuccessful. Thereafter the appellant instituted a suit which was Suit No. 46 of 1944 in the Court of the First Munsif at Basirhat under Section 77 of the Indian Registration Act. This suit was decreed on compromise on 10th November, 1944, and under the terms of the compromise Baharali agreed to register the document within fifteen days; in default, the appellant was given the right to get it registered through Court. Baharali made default in getting the document registered, whereupon the plaintiff filed an application to Court for sending it to the registration office for registration. Upon that application the learned Munsif deputed one of his officers to present the document to the sub-registrar together with a letter directing the sub-registrar to register the document. Acting upon that letter of the learned Munsif, the sub-registrar actually registered the document on 3rd April, 1945. Defendant No. 2, Sk. Golam Kibria, purchased the occupancy holding of Baharali by a registered conveyance, on 3rd February, 1943, arid the conveyance by which he purchased Baharali's interest is Exhibit D. After purchasing the interest of Baharali, defendant No. 2 sublet his land to defendant No. 1 Sk. Abdul Malek by a Potta executed and registered on 26th July, 1944. This Potta is Exhibit 2. The plaintiff claims title on the basis of the Potta, dated 16th January, 1943, which according to him was validly registered under the order of the Court on 3rd April, 1945. The plaintiffs claim was resisted by the two defendants on the ground that the Potta in favour of the plaintiff was executed under coercion, and that in any case, it was not validly executed and registered, and therefore, conferred no title upon the plaintiff. There can be no doubt that the Potta in favour of the plaintiff being prior in point of time to the deed of sale in favour of defendant No. 2 the plaintiff's suit must be decreed if it is held that the Potta in his favour was validly executed and registered. Both the Courts below have concurrently held that the defendants have failed to prove that the Potta in favour of the plaintiff was executed under coercion. The Trial Court further held that the Potta was validly executed and registered and made a decree in i'avour of the plaintiff. On appeal the Lower Appellate Court has come to the conclusion that though the defendants had failed to prove that the Potta was executed under coercion, the plaintiff had also failed to prove that it was properly executed. The Trial Court held that the registration of the Potta on 3rd April, 1943, was valid. The Lower Appellate Court has held that that registration is invalid on two grounds

(3.) Against the decree of the Court of appeal below the plaintiff has filed this second appeal, and Mr. Janah appearing in support of the appeal has raised three points before us. In the first place, Mr. Janah has contended that the finding of the Court of appeal below on the question of the execution of the Potta is not a finding in accordance with law. His argument is that the only ground upon which the Potta was challenged by the defendants was that it was obtained by coercion, and apart from coercion there was no other ground of attack upon the Potta in the Trial Court and the Court of appeal below was not justified in allowing the defendants to raise a new question of fact for the first time in the appeal in the Court of appeal below. The second point raised by Mr. Janah is that the decision of the Lower Appellate Court on the question of presentation of the document before the sub-registrar is wrong in law. His argument is that there can be no doubt that the document was in the present case validly presented before the sub-registrar under Section 32 of the Indian Registration Act on 13th May, 1943, and thereafter it was not necessary for the plaintiff to present the document afresh to the sub-registrar in accordance with Section 32, Registration Act after the decree made by the Munsif, First Court, Basirhat, in Suit No. 46 of 1944. In support of this contention, Mr. Janah invited our attention to a decision of the Privy Council in Chottey Lal v. Collector of Moradabad, AIR 1922 PC 279 (A). The third point raised by Mr. Janah is that the decision of the Court of appeal below on the question of limitation is wrong, because according to him the presentation of the document beyond the period of time prescribed by Section 77 of the Indian Registration Act is a mere defect in procedure which is curable by Section 87 of the Indian Registration Act.