ABDUL HAKIM KHAN Vs. CHANDAN

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiffs-respondents under Section 77 of the Registration Act to secure registration of a sale-deed which was admittedly executed by defendant No. 1 as general attorney of defendant No 2. The suit was contested by both the defendants. Registration wan refused by the Sub-Registrar on the 20th of December 1908. Within the period of thirty days from that date the plaintiff-respondents applied to the Registrar under Section 73 of the Act. A date was fixed by the Registrar for an inquiry to be made under Section 74. On the date fixed the parties did not appear, and the Registrar recorded an order dismissing the application. The plaintiffs then brought the present, suit. The suit was resisted chiefly on the ground that there had been no inquiry by the Registrar under Section 74 of the Act and that, therefore, there had been no such refuel to register as is contemplated by Section 77. A plea has been raised in this Court, that, the application to the Registrar had not been made within the time allowed by law. There is no substance in this plea as it was admitted by the parties in the Court below that that application was made within thirty days of the order passed by the Sub-Registrar. THIS is manifest from the opening lines of the Appellate Court s judgment and it has not been shown to us that the statement contained in the judgment is incorrect. Both the Courts below decreed the plaintiff s suit relying upon the ruling in Sajbullah Sirkar v. Haji Khosh Mahomed Sirkar 13 C. 264. They have held that the order of the Registrar is a refusal within the the meaning of Section 77. The point, taken before us is that the applicants, i.e., the present plaintiffs, not having appeared before the Registrar and not having adduced evidence, the inquiry which is ordered by Section 74 was not, made, and, therefore, the order of the Registrar is not a refusal such as is contemplated by the law. Reliance is placed upon certain observations in Udit Upaidhia v. Imam Bandi Bibi 24 A. 402. The question fur decision in that case was not that which is now before us. In that, case the plaintiff Musammnt Imam Bandi Bibi, had made an application to the Registrar to obtain an order for registration more than thirty days after the order of the Sub-Registrar refusing registration. It was, therefore, held that she had not fulfilled one of the conditions precedent to the bringing of a suit under Section 77. In the course of the judgment, certain observations were made by one of the learned Judges. On pages 406 and 407 Burkitt, J., says "the words refuses to order the document to be registered under Section 76 imply, in my opinion, that the application must have been presented in time under Section 73, and that after inquiry the Registrar has refused to direct it to be registered". Stress is laid upon the words that after inquiry the Registrar has refused to direct, it to be registered. At the bottom of page 403 the judgment continues--"finally I would point, out that the right, of suit given by Section 77 of the Act is a right consequential on a refusal under Section 76, which refusal is based on the inquiry directed by Section 74, and if there be no such refusal no right to sue accrues under Section 77". In so far as those observations touch on the question of the inquiry made after an application, they were quite unnecessary for a decision on the point in issue in that case In the case now before us there is no material on the record to show to us what exactly happened in the present case, and we are not, prepared to hold that, where the District Registrar on an application duly presented within time has fixed a date for the purposes of an inquiry and has then refused to register the document because no evidence has been adduced before him no such refusal has been made as is contemplated by Section 77. There is nothing in the circumstances of the case to show that, the application under Section 73 was not a bona fide application which the plaintiffs did not intend to prosecute. It is clear that they neither withdrew nor abandoned their application. The Registrar s order dismissing the application was one merely refusing to register the document because no evidence of the execution thereof had been PUC-MI before him. We agree with the remarks in Sajbullah Sirkar v. Haji Khosh Mahomed Sirkar 13 C. 264. In oar opinion the decision of the Court below is correct. The appeal fails and is dismissed with costs.