Dismissed

Sri R Sampath v. State of Karnataka by Its Secretary

Karnataka HC5 Nov 2020WP/18660/2013

Case brief

AI extract

What is this about?

The purchaser sought certiorari against the Sub-Registrar's endorsement refusing registration of a sale deed presented in 2004 and mandamus to register it. The court held that the Sub-Registrar may refuse registration where the Section 81A declaration, the 11E sketch and the vendor's name in the revenue records are wanting, and dismissed the petition.

What the court decided

AI extract

Sri R Sampath Vs State of Karnataka by Its Secretary — Property and Title | Karnataka HC (2020)

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W.P.No.18660 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.18660 OF 2013 (KLR-RES)

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BETWEEN:

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SRI. R. SAMPATH S/O M. RAJAGOPAL AGED ABOUT 56 YEARS R/O 3, 19/1, 2^ND FLOOR KCD COMPLEX, CSI COMPOUND 3^RD CROSS, MISSION ROAD BANGALORE-560027 ...PETITIONER

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(BY SRI.M.R. RAJAGOPAL, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF REVENUE VIDHANA SOUDHA BANGALORE-560001

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THE TAHASILDAR BANGALORE EAST TALUK K.R.PURAM, BANGALORE-560001

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SRI. M. NAGESH S/O MAHESHWARAPPA AGED 42 YEARS

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SRI. M. VENKATESH S/O MAHESHWARAPPA AGED 41 YEARS

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SRI. M. RAGHAVENDRA S/O MAHESHWARAPPA AGED 35 YEARS

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W.P.No.18660 of 2013

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RESPONDENTS 3 TO 5 ARE THE RESIDENTS OF MEDAHALLI VILLAGE K.R.PURAM HOBLI BANGALORE RURAL DISTRICT-560066

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THE SUB REGISTRAR OFFICE AT KRISHNARAJAPURAM MUNICIPAL COMPLEX OLD MADRAS ROAD K.R.PURAM, BANGALORE-560066 … RESPONDENTS

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(BY SRI. SANDESH KUMAR.M, HCGP FOR R1, 2 & 6; R3, R4 & R5 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ENDORSEMENT ISSUED BY THE R6 DATED 16.08.2012 VIDE ANNEXURE-L AND DIRECT THE R6 TO REGISTER THE INSTRUMENT AS ADMITTED FOR REGISTRATION THE DOCUMENT ADMITTED FOR REGISTRATION DATED 8.11.2004 WHICH IS KEPT PENDING FOR REGISTRATION VIDE ANNEXURE-K AND ETC.

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*********

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP AND HAVING BEEN RESERVED FOR ORDERS ON 06.10.2020, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The Petitioner is before this Court seeking for a writ of certiorari to quash the endorsement issued by respondent No.6 dated 16.08.2012 bearing No.RGN.KR.PURA 237/12-13 (Annexure-L) as also for a mandamus directing respondent No.6 – Sub-Registrar to

W.P.No.18660 of 2013

Facts according to the Petitioner

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2.1. The land bearing Sy.No.37 measuring 34 guntas belonged to the family of Maheshwarappa and Munivenkatamma who had six sons viz., M.Jayaram, M.Ramesh, M.Subramani, M.Nagesh, M.Venkatesh and M.Raghavendra.

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2.2. There was a registered partition effected between the family members on 03.01.2004 in terms whereof the portions of the land measuring 34 guntas in Sy.No.37 of Sigehalli Village, K.R.Puram Hobli, Bengaluru Rural District had fallen to the share, land measuring 12 guntas as per Schedule ‘A’ Item No.3 of the said partition deed had

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fallen to the share of M.Nagesh (respondent No.3), 11 guntas as per Schedule ‘F’, Item No.3 of the said partition deed had fallen to the share of M.Venkatesh (respondent No.4), 11 guntas as per Schedule G, Item No.3 had fallen to the share of Sri.Raghavendra (respondent No.5).

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2.3. Subsequent to the registration of the partition deed, the same was also reflected in the encumbrance certificate.

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2.4. Thereafter, respondent Nos.3 to 5 had approached the Tahsildar (respondent No.2) to effect the necessary entries in the revenue records. Provisional entries were made by issuance of Form No.21 as per Annexure-E. However, the said provisional entries remained unconfirmed, and the process of

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certification was not completed. Even though there was no objection to the application filed by respondent Nos.3 to 5, an endorsement came to be issued in Form No.12 on 05.01.2005.

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2.5. As per family tree available Maheshwarappa had nine children. However, partition deed was entered into only in respect of four children hence, the other children not being parties to the partition deed, the entries sought for was not made.

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2.6. In the meanwhile, said respondent Nos.3 to 5 are stated to have executed a sale deed in favour of the Petitioner on 08.11.2004 which was presented for registration on the very same day.

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2.7. An endorsement came to be issued rejecting the application made by the vendors to mutate their names. Aggrieved by the endorsement issued in terms of Form No.12, the Petitioner had challenged the same before this Court by filing W.P.No.37279/2011, which came to be disposed of by order of this Court on 19.03.2012 directing the Petitioner to place all the supporting documents before the Tahsildar - respondent No.2 to consider the same and if there are no complicated question of title and if respondent No.2 is satisfied that the Petitioner is the purchaser of the land in question, a mutation in his favour was required to be done. However, if the Tahsildar - respondent No.2 was of the view that there were complicated questions of title involved or that the

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Petitioner’s vendor himself was not the owner of land in question, then the Petitioner was required either to file an appeal before the Assistant Commissioner or a suit for declaration of title before the competent Civil Court.

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2.8. Subsequent thereto on 13.08.2012, the Petitioner was issued with an endorsement by Thasildar - respondent No.2 stating that since an order had already been passed, the same could not be reviewed and as such, the Petitioner was required to file an appeal under Section 136(2) of the Karnataka Land Acquisition Act.

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2.9. Thereafter, one more endorsement came to be issued on 25.08.2012 stating that mutation entries had already been carried out in the name of one Sri.

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Rakesh S/o Kodandaramaiah as per M.R.No.22/06-07 and as such, Thasildar - respondent No.2 could not take up the matter and the remedy of the Petitioner was only by way of an appeal under Section 136 (2) of the Act (Annexure-J).

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2.10. Subsequent thereto, by way of an endorsement dated 16.08.2012 (Annexure-L), an application for registration of the sale deed dated 08.11.2004 came to be rejected on the ground that the names of the vendors of the Petitioner were not found mentioned in the records and as such, in terms of Section 81A of the Karnataka Land Reforms Act and Section 46H of the Karnataka Land Revenue Act, the documents could not be registered since there was no sketch attached to the said sale deed and further that it was not

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clear as to whether the vendors and subsequent purchaser were agriculturists or not in order to enable the Petitioner to purchase the said property. It is aggrieved by the same; the Petitioner is before this Court.

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Sri.M.R.Rajgopal learned counsel for the Petitioner submitted that:

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3.1. Once the partition deed was registered on 03.01.2004 and the property was allotted to the share of respondent Nos.3 to 5, they became the absolute owners of the land in question, the rest of the family members are not given any share and as such, they were not made parties to the partition deed hence they did not have any right to claim any share.

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3.2. Acting on the said partition, respondent Nos.3 to 5 had executed a sale deed and admitted the same for registration before the Sub-Registrar – respondent No.6 on 08.11.2004, which was recorded on the file of Sub-Registrar and a pending registration number in terms of document No.P864 was allotted.

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3.3. The completion of registration was kept pending on account of separate RTC and mutation in the name of the sellers not being produced.

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3.4. Once a document was kept pending for registration, respondent No.6 – SubRegistrar ought to have, within a reasonable period of time, adjudicated the issue. Instead of so doing, the SubRegistrar kept the matter pending upto

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2012 for a period of eight years and issued impugned endorsement dated 16.08.2012.

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3.5. The endorsement now issued is as regards the non-compliance with the requirement of furnishing 11E sketch and that there is no declaration to the effect that the Petitioner is an agriculturist as required under Karnataka Land Reforms Act.

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3.6. Even though the earlier application filed by respondent Nos.3 to 5 were pending before respondent No.2, respondent No.6 – Sub-Registrar has accepted the document submitted by Smt.Munivenkatamma, mother of respondent Nos.3 to 5, transferring the very same property in favour of one

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Sri.Rakesh S/o Kodandaramaiah by way of sale deed dated 08.11.2006 and registered the same. He alleges that there is a fraud which had been committed by Munivenkatamma and Rakesh in collusion with respondent Nos.3 to 5 family members as also respondent Nos.2 and 6 being officers viz., Tahsildar and Sub-Registrar.

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3.7. In this regard, the Petitioner is also stated to have filed a police complaint on 11.02.2007 (Annexure-N). In the said complaint, it is alleged that the above allegations have been made and it is further alleged that the Petitioner has purchased the said property on behalf of BEML (HQRS & MKTG) SC/ST Employees Welfare Association for the benefit of its members and subsequent to the said

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purchase, the said association has

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formed sites and sold it to its members.

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3.8. The complaint having been filed on 11.02.2007 followed up with another complaint dated 29.10.2007, the Superintendent of Police (Civil Rights), Enforcement Cell had instructed the Deputy Superintendent of Police to submit a report on the above after investigation. The said Deputy Superintendent of Police investigated the matter and when called upon, respondent No.6 had informed that the document admitted for registration was pending registration.

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3.9. The Petitioner had also filed a suit in O.S.No.1832/2007 against the respondent Nos.3 to 5 and said Rakesh seeking for a declaration that the

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Petitioner is the absolute owner as also for cancellation of the sale deed dated 08.11.2006 executed in favour of said Rakesh. The said suit, however, came to be dismissed for non-prosecution and Miscellaneous Petition had been filed to restore the said suit.

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3.10. On the basis of the above, Sri.M.R.Rajgopal, learned counsel for the Petitioner would further submit that once a sale deed had been executed and admitted for registration, respondent No.6 – Sub Registrar had no option but to register the said sale deed. The only power of the Sub-Registrar is to conduct an enquiry in terms of Section 34 of the Registration Act. Respondent No.6 – Sub-Registrar is not empowered to conduct a roving enquiry. Once the

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identities of the parties are established, respondent No.6 – Sub-Registrar ought to have registered the document.

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3.11. Respondent No.6 – Sub-Registrar could not have declined registration by relying on and referring to non-compliance of requirements under either Karnataka Land Reforms Act or Karnataka Land Revenue Act.

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3.12. When a document had been presented in the year 2004 for registration and it was kept pending, respondent No.6 could not have registered the sale deed in respect

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of the very same property in the year 2006 in favour of said Sri.Rakesh and on the above grounds, Sri.M.R.Rajgopal, counsel submitted that the endorsement dated 16.08.2012 is required to be quashed and the documents submitted

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for registration on 08.11.2004 is required to be ordered to be registered by the issuance of mandamus.

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3.13. The Petitioner has relied on the decision rendered by Division Bench of this Court in the case of VEERABADHRAPPA AND

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ANOTHER VS. JAGADISHGOUDA AND OTHERS REPORTED IN ILR 2003 KAR

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3042 to contend that the registration of the sale deed could not be kept pending.

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Sri. Sandesh Kumar, learned HCGP for respondent Nos.1, 2 and 6 submitted that:

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4.1. The action taken by the Sub-Registrar is proper and correct. In that, it was but required for the purchaser of agricultural property to declare by way of an affidavit that he was an agriculturist and he was entitled to purchase agricultural land.

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4.2. The above is mandated under Section 81

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(A) of the Karnataka Land Reforms Act, 1961 since in the State of Karnataka as the law stood on the date of presentation of the document for registration, the alienation and/or transfer of agricultural land to a non-agriculturist is prohibited.

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4.3. There was also a requirement for the parties to furnish 11E survey sketch so as to identify the property being sold since without a sketch, the property was incapable of identification and the boundaries being fixed.

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4.4. The name of the vendor was not found in the land revenue records pertaining to the land identifying the vendor to be the owner.

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4.5. The partition deed sought to be relied upon by the Petitioner, though registered, the necessary entries not having been made, it was but required for the parties to get the entries made and thereafter approach the SubRegistrar for registration. Since in the absence thereof, there would be a gap in the revenue records, and it is in order to not to have such a gap, such a requirement has been imposed.

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4.6. He further submitted that these are all the aspects that are required to be taken into consideration by the Sub-Registrar while registering the document. Merely because a document is presented before the Sub-Registrar, he is not required to complete the process of registration. There is a duty imposed on the Sub-

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Registrar to verify the compliance of various requirements so as to maintain a proper and effective process of registration.

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Though respondent Nos.3, 4 and 5 - the vendors of the Petitioner have been served, they remained unrepresented.

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Sri.M.R.Rajgopal, learned counsel for the Petitioner in reply would submit that

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6.1. Respondent Nos.3, 4 and 5 having executed the sale deed in favour of the Petitioner, they have no subsisting right, title and interest in the property.

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6.2. They having received the agreed consideration, they are also not interested in the outcome of the

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proceedings and as such, he submitted

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that the matter could be proceeded with in their absence.

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On the basis of the submission made above by the learned counsel for the Petitioner, respondent No.1, 2 and 6 as also on perusal of the documents and pleadings, the points that would arise for determination for this Court are:

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(i) What is the role of the Sub-Registrar when a document is presented for registration?

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(ii) Would a Sub-Registrar be required to register any document presented for registration?

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(iii) Would the requirement under the Karnataka Land Revenue Act and the Karnataka Land Reforms Act be required to be fulfilled in order to proceed for registration?

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(iv) Is the Sub-Registrar required to ascertain from the records if the vendor’s name is found mentioned in the revenue records before proceeding with the registration of the property?

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(v) Can the Sub-Registrar go through and appreciate the document submitted for registration in order to ascertain whether the requirements under the Registration Act have been followed or not?

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(vi) In the present case, is the refusal by the Sub-Registrar to register the document on the ground that the vendor’s name was not found mentioned in the revenue records, the failure of the Petitioner to declare himself as an agriculturist while purchasing an agricultural land and the nonproduction of 11E sketch be a good ground for refusal of registration?

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(vii) What order?

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I answer the above points as under:

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POINT NOS.(i) & (ii) :

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What is the role of the Sub-Registrar when a document is presented for registration?

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Would a Sub-Registrar be required to register any document presented for registration?

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9.1. Both the points being related to each other, they are taken up for consideration together.

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9.2. Sub Registrars are statutory authorities appointed by the State Government in the exercise of the power conferred under Section 6 of the Registration Act, 1908 (for brevity referred to as Registration Act ) or by the Registrar of the District in the exercise of the powers conferred under Section 12 of the Registration Act which is reported by the Registrar to the State Government under Section 13 of the Registration Act.

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9.3. The following books shall be kept in all the registration offices, namely:-

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9.3.1. Book-I: Register of nontestamentary documents

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relating to immovable

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property;

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9.3.2. Book-II: Record of reasons for refusal to register;

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9.3.3. Book-III: Register of wills and authorities to adopt;

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9.3.4. Book-IV: Miscellaneous Register;

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9.3.5. Book-V: Register of deposits of wills.

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9.4. In Book I shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills.

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9.5. In Book II shall be entered the reasons for refusal to register any document presented for registeration;

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9.6. In Book III shall be entered the details of all wills registered as also adoption deeds;

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9.7. In Book IV shall be entered all documents registered under clauses (d) and (f) of section 18 which do not relate to immovable property.

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9.8. The Sub-Registrar or a Registrar of Assurance is vested with a very important role in accepting the documents presented for registration and registering the same. These documents could be as regards immediate transfer of a property like sale deed, lease deed, gift deed, etc., which are registered in Book-I and certain documents could be presented for registration which could operate in

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future like a Will which is registered in Book-IV.

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9.9. The role and duty of a Sub-Registrar in respect of documents which convey a property or transfer of a property is of paramount importance.

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9.10. A Sub-Registrar is not a ministerial authority, nor does he perform clerical work of registering any document placed before him for registration. There are vast resources made available to such registrars, including the assistance of several officers and staff to perform his duties.

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9.11. The Sub-Registrar performs an administrative role, such role is to be performed in the manner as prescribed under law primarily being the Indian

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Registration Act and in Karnataka as per the suitable amendments made to the Registration Act by the State of Karnataka as also the Karnataka Registration Rules, 1965, hereinafter for brevity referred to as Registration Rules which are framed in furtherance of Indian Registration Act.

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9.12. The entire gamut of role and authority of Sub-Registrar cannot be considered and laid down in a judgment. However, for the purpose of the facts in dispute, the relevant role in respect of factual matrix is required to be ascertained.

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9.13. A Sub-Registrar is required to follow the procedure laid down in Rules 69 to 81 of the Registration Rules more so for the reason that under Rule 171 (1) of Registration Rules, a Sub-Registrar can

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also refuse registration of a document in terms of what is stated in the said Rule. This would necessarily imply that the power or authority to register a document vested with the Sub-Registrar is one coupled with duties that are required to be discharged by such SubRegistrar prior to such registration. If there is any violation of this and if the Sub-Registrar were not to follow the applicable rules, there could be a document which could be registered which was not supposed to have been registered which would wreak havoc on the rights of the persons interested in such property.

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9.14. A Registrar or a Sub-Registrar is required to be appointed by the State of Karnataka in terms of Section 6 of the

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Registration Act, 1908 and is required to perform the functions and duties as prescribed under the Registration Act, 1908.

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9.15. Registration Act itself contains various provisions bringing out the requirement for registration as also the duties and powers of the Registering Officers.

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9.16. For example, Part III from Sections 17 to 22-A deals with ‘Registrable documents’. If a document is not compulsorily registrable, the same is not required to be registered. In terms of Section 21, a document can only be registered if it contains the description of such property and maps or plans which are sufficient to identify the same.

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9.17. Part IV from Sections 23 to 27 deals with ‘Time of Presentation’.

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9.18. Part V from Sections 28 to 31 deals with ‘the Place of Registration’.

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9.19. Part VI from Sections 32 to 35 deals with the method and manner of ‘Presenting documents for Registration’.

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9.20. Part XI from Sections 51 to 70 deals with the ‘Duties and Powers of Registering Officers’.

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9.21. Part XI-A from Section 70A to 70G deals with ‘Registration of documents by means of electronic or other devices’.

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9.22. Part XII from Sections 71 to 77 deals with ‘Refusal to Register’.

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9.23. For the present facts and circumstances of this case, it is Part XI and XII which are relevant more so Part XII.

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9.24. If the requirements of Part III to Part VI of the Registration Act are not satisfied, the question of proceeding towards registration of the document would not at all arise.

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9.25. Under Part XII the Registrar has been provided with powers of refusal of registration of the document.

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9.26. Section 71 reads as under:-

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“71. Reasons for refusal to register to be recorded:- (1) Every Sub-Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his sub-district, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall, without

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payment and unnecessary delay, give him a copy of the reasons so recorded.

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(2) No Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered.”

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9.27. Reading of the above Section makes it clear that if the property is not situated within its jurisdiction, the Sub-Registrar can refuse registration without affording any reasons. However, if registration is refused for reasons other than above, then the Sub-Registrar is required to record his reasons for such refusal in Book-II and endorse the words “registration refused” on the document on an application made by any person executing or claiming under the document.

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9.28. Thus, this provision makes it clear that a Sub-Registrar is not required to register all or any document presented for registration. There are instances which would afford the power and authority to the said Sub-Registrar to refuse registration.

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9.29. Apart from the Registration Act, land and registration of conveyance relating to land being a State subject, the State of Karnataka has formulated Karnataka Registration Rules, 1965, which would apply to the registration of any document. The relevant provision for the purpose this matter would be Rule 171 in Chapter XXIV, which reads as under:-

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“171. Reasons for refusal to register :— When registration is refused, the reasons for refusal shall be at once recorded in Book 2. They will usually come under

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one or more of the heads mentioned below:-

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(i) Section 19:— that the document is written in a language which the Registering Officer does not understand and which is not commonly used in the district, and that if is unaccompanied by a true translation or a true copy;

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(ii) Section 20:- that it contains unattested interlineations, blanks, erasures, or alterations which in the opinion of the Registering Officer require to be attested;

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(iii) Sections 21(1) to (3) and Section 22:- that the description of the property is insufficient to identify it or does not contain the information required by Rule 15;

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(iv) Sections 21(4):- that the document is unaccompanied by a copy or copies of any map or plan which it contains;

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(v) Rule 50:- that the date of execution is not stated in the document or that the correct date is not ascertainable or altered so as to make it unascertainable;

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(vi) Sections 23, 24, 25, 26, 72, 75 and 77:- that it is presented after the prescribed time;

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(vii) Section 32, 33, 40 and 43:- that it is presented by a person who has no right to present it;

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(viii) Sections 34:- that the executing parties or their representatives, assigns, or agents have failed to appear within the prescribed time;

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(ix) Sections 34 and 43:- that the Registering Officer is not satisfied as to the identity of a person appearing before him who alleges that he has executed the document or when an executant is not, identified to the satisfaction of the Registering Officer.

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(x) Sections 34 and 40:- that the Registering Officer is not satisfied as to the right of a person appearing as representative, assignee or agent, so to appear;

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(xi) Section 35:- that execution is denied by any person purporting to be an executing party or by his agent;

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Note:- When a Registering Officer is satisfied that an executant is purposely keeping out of the way with a view to evade registration of document or has gone to a distant place and is not likely to return to admit execution within the prescribed time, registration may be refused, the non appearance being treated as tantamount to denial of execution.

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(xii) Section 35:- that the person purporting to have executed the

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document is a minor, an idiot or a lunatic;

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Note :- When the executant of a document who is examined under a Commission under Section 38 of the Act is reported by the Commissioner to be a minor, an idiot or a lunatic, registration may be refused and it is not necessary that the Registering Officer should personally examine the executant to satisfy himself as to the existence of the disqualification.

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(xiii) Section 35:- that execution is denied by the representative or assign of a deceased person by whom the document purports to have been executed.

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Note:- When some of the representatives of a deceased executant admit and the others deny execution, the registration of the document shall be refused in to, the persons interested being left to apply to the Registrar for an enquiry info the fact of execution.

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(xiv) Sections 35 and 41:- that the alleged death of a person by whom the document purports to have been executed has not been proved;

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(xv) Section 41:- that the Registering Officer is not satisfied as to the fact of execution in the case of a Will or of an authority to adopt presented after the death of the testator of donor;

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(xvi) Sections 25, 34 and 80:- that the prescribed fee or fine or fee under any other Act to be levied before admitting a document to registration has not been paid.”

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9.30. A reading of the above Rule 171 would

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indicate that the reasons for refusal to register would have to be recorded in Book II.

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9.31. The said Rule is only illustrative, illustrating the power or in some cases duty of the Registrar to refuse registration on account of noncompliance or default or violation of various provisions referred to and as detailed under Rule 171 of the Registration Rules.

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9.32. For the purpose of this matter, the Registrar is entitled to refuse registration in terms of Section 171(iii) that is to say

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that description of the property is insufficient to identify or it does not contain the information required by Rule 15. Rule 15 is hereunder reproduced:

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“15. Description in cases of non-testamentary documents:- (i) Whenever any nontestamentary document presented for registration relates to land situate in any local area in respect of which a rule has been made under Section 22(1) requiring description by reference to a Government map or survey, the Registering Officer shall satisfy himself that if the land comprises one or more entire survey field or sub-divisions the document specifies the number of each field or sub-division and that if the land has no separate number assigned to it, the document specifies the number assigned to the field or sub – division in which the land is situated and further includes a description of the land sufficient for its identification.

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(ii) Lands in those taluks in which mapping is completed should be described in non-testamentary documents presented for registration by reference to the serial numbers (Pot Hissa Numbers as well as survey numbers) in the maps prepared under the

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Karnataka Land Revenue Act, 1964 (Act No. 12 of 1964).

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(iii) In areas where a city survey is complete, the parties should be directed to have the 1 [city] survey number invariably entered.”

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9.33. Rule 171 (iv) is also attracted affording or entitling the Sub-Registrar to refuse registration if the document is unaccompanied by a copy or copies of map or plan which it contains. In the facts and circumstances of the case, Rule 171(iii), (vi) and (vii) would be attracted.

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9.34. However, as stated hereinabove, in the event of Sub-Registrar refusing registration, for any of the reasons under Registration Act or Registration Rules, he is required to record the said reasons in Book-II maintained at his office.

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9.35. The order passed under Rule 171 being

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traceable to Section 71 of Part XII of the Registration Act, an appeal as against such order of refusal is provided under Section 72 of the Registration Act and the manner and methodology thereof is provided under Chapter 25 of the Registration Rules. Needless to say that any order passed by the Sub-Registrar would have to be in writing and reasoned.

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9.36. An appeal under Section 72 of the Registration Act shall lie against an order of the Sub-Registrar to the Registrar to whom such Sub-Registrar is subordinate which is to be filed within 30 days from the date of the order.

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9.37. The Registrar who is the Appellate Authority, would have the right and power to reverse and alter the order passed by the Sub-Registrar.

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9.38. In the event of the Registrar directing the document to be registered, the SubRegistrar shall obey the same and follow the procedure prescribed under Sections 58, 59 and 60 and registration shall take effect as if the document is registered when it was first duly presented for registration.

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9.39. Appeal under Section 72 is only on account of where the Sub-Registrar refuses the registration on the grounds other than denial of execution.

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9.40. Section 73 provides for an appeal to the Registrar where the Sub-Registrar

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refuses to register on the ground of denial of execution. The Registrar in terms of Section 74 is required to ascertain whether the document had been executed and requirement of law then in force has been followed.

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9.41. In the event of Registrar refusing the appeal and/or dismissing the appeal, such Registrar shall make an order of refusal and record reasons for such order in Book II. In terms of Section 76 (2), no appeal lies from any order by a Registrar under the said Section. In that event, the only recourse for the applicant is to file a suit in terms of Section 77 of the Registration Act within 30 days of making of the order of refusal before the Civil Court within the local limits of whose original jurisdiction the

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office in which the document sought to be registered is situated. Pending the result of the suit whether the document is required to be registered or not would follow.

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9.42. Thus from the above, it is clear that a Sub-Registrar can refuse registration in terms of Section 71 of the Registration Act read with Rule 171 of the Karnataka Registration Rules for the reasons stated therein. The said order would have to be reasoned, and such reasons should be recorded in Book II.

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9.43. The applicant can move the Registrar seeking for reversal of the order of SubRegistrar or alteration of the order passed by the Sub-Registrar, then the Registrar can either direct the registration or refuse the application. If

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the application is allowed and registration is ordered, the Sub-Registrar is required to register the document and if the application is refused, the applicant would have to file a suit as detailed hereinabove.

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9.44. In view of the same, I answer Point No.(i) by holding that the role of the Sub-Registrar is detailed hereinabove.

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9.45. I answer Point No.(ii) by holding that the Sub-Registrar is not required to register any document presented for registration. The document presented for registration has to comply with the requirement of the Registration Act and the Registration Rules for it to be registered. If the document does

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not comply with all the requirements as mentioned above, then the Registrar can refuse the registration by a reasoned order to be recorded in Book II. If the Sub-registrar were to register a document contrary to the applicable rules, the subregistrar can be proceeded with in accordance with law.

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POINT NO.(iii) : Would the requirement under the Karnataka Land Revenue Act and the Karnataka Land Reforms Act be required to be fulfilled in order to proceed for registration?

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10.1. Karnataka Land Revenue Act, 1964 and Karnataka Land Reforms Act, 1961 have various provisions relating to the transfer of land.

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10.2. Section 79A and 79B of the Karnataka Land Reforms Act, 1961 which were

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inserted by Act No.1 of 1974 with effect from 01.03.1974 as it stood at the time of document in question being presented for registration prohibited the acquisition of agricultural land by a nonagriculturist. Section 79A and 79B are extracted below for easy reference:

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“Section 79-A . Acquisition of land by certain persons prohibited. –

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1. On and from the commencement of the Karnataka Land Reforms (Amendment) Act, 1995, no person who or a family or a joint family which has an assured annual income of not less than rupees [twenty five lakhs] from sources other than agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another.

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2. For purposes of sub-section (1) –

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i. the aggregate income of all the members of a family or a joint family or a joint family from sources other than agricultural land shall be deemed to be income of the family or joint family, as the case may be, from such sources;

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ii. a person or a family or a joint family shall be deemed to have an assured annual income of not less than [rupees twenty five lakhs] from sources other than agricultural land on any day if such person or family or joint family had an average annual income of not less than [rupees twenty five lakhs] from such sources during a period of five consecutive years preceding such day.

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Explanation . A person who or a family or a joint family which has been assessed to income tax under the Income Tax Act, 1961 (Central Act 43 of 1961) on an yearly total income of not less than [rupees twenty five lakhs] for five consecutive years shall be deemed to have an average annual income of not less than [rupees twenty five lakhs] from sources other than agricultural lands.

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3. Every acquisition of land otherwise than by way of inheritance or bequest in contravention of this Section shall be null and void.

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4. Where a person acquires land in contravention of sub-section (1) or acquires it by bequest or inheritance he shall, within ninety days from the date of acquisition, furnish to the Tahsildar having jurisdiction over the Taluk where the land acquired or the greater part of it is situated a declaration containing the following particulars, namely:

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i. particulars of all lands;

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ii. the average annual income of himself or the family;

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iii. such other particulars as may be prescribed.

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5. The Tahsildar shall, on receipt of the declaration under sub-section (4) and after such enquiry as may be prescribed send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that with effect from such date as may be specified in the notification, such land shall stand transferred to and vest in the State Government without further assurance free from all encumbrances. From the date specified in such notification the Deputy Commissioner may take possession of such land in such manner as may be prescribed.

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6. For the land vesting in the State Government under sub-section (5), where the acquisition of the land was by bequest or inheritance, an amount as specified in Section 72 shall be paid and where the acquisition was otherwise than by bequest or inheritance, no amount shall be paid.

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“Section 79-B. Prohibition of holding agricultural land by certain persons. –

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1. With effect on and from the date of commencement of the Amendment Act, except as otherwise provided in this Act, -

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a. no person other than a person cultivating land personally shall be entitled to hold land; and

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b. it shall not be lawful for:-

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i . an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of Section 63, capable of holding property;

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ii . a company;

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iii . an association or other body of individuals not being a joint family, whether incorporated or not; or

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iv . a co-operative society other than a co-operative farm, to hold any land.

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2. Every such institution, society, trust, company, association, body or cooperative society;-

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a. which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and

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b. which acquires such land after the said date shall also furnish a similar declaration within the prescribed period.

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3. The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner.

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4. In respect of the land vesting in the State Government under this Section an amount as specified in Section 72 shall be paid.

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Explanation .- For purposes of this Section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf.”

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10.3. In terms of said Sections, a person is required to be an agriculturist i.e., holding an agricultural land and possessing agricultural status as also the income of such a person is required to be below the threshold prescribed under

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the said provision as fixed from time to time. Unless the dual test is satisfied, a person cannot purchase an agricultural land.

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10.4. Under Section 79B, there is a prohibition in toto for certain persons to hold agricultural land which would amongst others include a company, an educational, religious or charitable institution or society or trust, etc., with a further restriction that no persons other than the person cultivating the land personally would be entitled to hold agricultural land.

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10.5. Section 80 specifically bars transfer to non-agriculturist. Thus, there is on the face of that provision a bar to transfer. Though the Sub-Registrar is also required to conduct an enquiry, the said

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enquiry is restricted and is not one which could result in a roving enquiry conducted by such Sub-Registrar.

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10.6. In view thereof, in terms of Section 81A, there is a requirement for a declaration to be made by the purchaser or a donee or a lessee or otherwise in writing in the form that may be prescribed by the Registering Authority declaring title in respect of land held by him as also his assured annual income. If such a declaration is not made part of the document proposed to be registered, the registration cannot be gone ahead with. The Registering Authority is required to forward the declaration filed under Section 81A to the prescribed officers in whose jurisdiction the subject matter of the transfer is situated.

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Sections 80 and 81A are reproduced

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hereunder for easy reference:

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Section 80. Transfers to nonagriculturists barred.

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(1) (a) No sale (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue, gift or exchange or lease of any land or interest therein, or

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(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be lawful

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(i) who is not agriculturist; or

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(ii) who being an agriculturist holds as owner or tenant or partly as owner and partly as tenant land which exceeds the limits specified in Sections 63 or 64; or

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(iii) who is not an agricultural labourer; or

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(iv) who is disentitled under Section 79A or Section 79B to acquire or hold any land

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Provided that the Assistant Commissioner having jurisdiction over the area or any officer not below the rank of an

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Assistant Commissioner authorised by the State Government in this behalf in respect of any area may grant permission for such sale, gift or exchange, to enable a person other than a person disentitled to acquire or hold land under Section 79-A or Section 79B who bonafide intend taking up agriculture to acquire land on such conditions as may be prescribed in addition to the following conditions, namely:-

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(i) that the transferee takes up agriculture within one year from the date of acquisition of land, and

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(ii) that if the transferee gives up agriculture within five years, the land shall vest in the State Government subject to payment to him of an amount equal to eight times the net annual income of the land or where the land has been purchased, the price paid for the land, if such price is less than eight times the net annual income of the land.

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(2) Nothing in sub-section (1) shall apply to lands granted under Section 77.

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Section 81-A . Declaration to be made before the registering authority in certain cases.

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(1) No document relating to any transfer of land either by sale, gift, exchange, lease, mortgage with possession surrender, agreement, settlement, or otherwise, shall be registered unless a declaration in writing is made in duplicate in such form as may be prescribed and filed by the transferee before the registering authority under the Indian Registration Act, 1908 (Central Act XVI of 1908), as to the total extent of land held by him as also his assured annual income].

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(2) The registering authority referred to in sub-section (1) shall forward within such time in such manner as may be prescribed, one copy of the declaration referred to in sub-section (1) to be prescribed officer, within whose jurisdiction the land which is the subject matter of the transfer or the major part thereof is situated.

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(3) On receipt of the copy of the declaration under sub-section (2), the prescribed officer may obtain such information as may be necessary and take such action as he deems fit in accordance with the provisions of this Act, and in accordance

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with such rules as may be made in this behalf.”

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10.7. On receipt of such declaration, the prescribed officer could if and so required initiate such action as he deems fit within the provision of the Act.

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10.8. Apart from the above provisions, there are also several provisions affecting transfer under the Land Reforms Act but for the purpose of the present matter since the refusal for registration is that Section 81A declaration was not enclosed along with the document presented for registration discussion here is limited to the said provision.

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10.9. Section 81A as discussed and extracted above, imposes a specific restriction against the registration of a transfer of agricultural property by the Sub-

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Registrar without a declaration being filed along with the document proposed to be registered. In view thereof, I am of the considered opinion that the document not accompanied by such declaration cannot be registered.

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10.10. Land Revenue Act also has several provisions relating to the transfer of agricultural land, those provisions would also require to be followed where provided.

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10.11. One such requirement is providing of a sketch popularly known as 11E sketch. The said 11E sketch is required to be issued in terms of Form 11E by the Licenced Surveyor which form has been prescribed in terms of Rule 47H in terms whereof, the respective Survey Officer is required to prepare the sketch for each

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sub-division of the property. This is required for all the lands as regards which mutations have taken place subsequent to the preparation of the preliminary record which would in turn be required for the preparation of the records of rights in terms of Section 171 of the Karnataka Land Revenue Act.

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10.12. In terms of Section 21 (1) to (3) and 22 of the Registration Act, the document presented for registration has to include a description of the property in sufficient details so as to identify it, and the details are as prescribed under Rule 15 of Karnataka Registration Rules, 1965.

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10.13. The said Rule 15 is reproduced hereinabove. A perusal of the same would indicate that whenever any nontestamentary document is presented for

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registration, the Registering Officer is required to satisfy that if the land comprises one or more entire survey fields or sub-divisions the document specifies the number of each field or sub-division and that if the land has no separate number assigned to it, the documents specifies number assigned to the field or sub-division in which the land

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is situated and further includes a description of the land sufficient for its identification.

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10.14. Such lands are required to be presented for registration by reference to the serial numbers (Pot Hissa Numbers as well as survey numbers) in the maps prepared under the Land Revenue Act, 1964 which would include Rule 15 of the Registration Rules. Therefore, it requires that the

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Registering Officer is to satisfy himself that the requirements under the Land Revenue Act, 1964 relating to the survey number or the sub numbers are properly and correctly carried out.

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10.15. Thus, the Sub-Registrar will be within his jurisdiction to call for or require the annexation of such documents presented for registration so as to identify the property alienated so as to prevent multiplicity in registration etc.

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10.16. In the present case, as per endorsement issued by the Sub-Registrar, it is clear that the refusal of registration is on account of 11E sketch not being enclosed. The same being requirement of law on the date when the document was presented for registration, it was but required for the presenters of the

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document to include such sketch. If such sketch is not enclosed, Registrar was well within his rights to refuse registration.

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10.17. Hence, I answer Point No. (iii) by holding that if there are requirement/s under the Karnataka Land Revenue Act, 1964 or Karnataka Land Reforms Act, 1961 which are required to be followed by the Sub-Registrar, the same would have to be so followed for the SubRegistrar or the Registering Officer to proceed with registration. The declaration under Section 81A of the Karnataka Land Reforms Act and the requirement of production of 11E sketch prepared in terms of Land Revenue Act not having been

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fulfilled, the Sub-Registrar was

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justified in refusing registration.

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POINT NO. (iv) : Is the Sub-Registrar required to ascertain from the records if the vendor’s name is found mentioned in the revenue records before proceeding with the registration of the property?

¶381

11.1. In terms of Sections 32, 40 and 43 of Registration Act, a document is required to be presented by a person who has a right for presentation. The identity of such a person is required to be ascertained.

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11.2. Any person either, the executant or its authorised agent as per provisions of Section 33 of the Registration Act or any person claiming under the instrument can present the instrument for registration. The exception for presentation are provided under Section

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31(private residence), Section 88 (Government Officers and Public Functionaries) and or the instruments forwarded to Sub Registrar under Section 89 alone shall be admitted for registration without any person presenting it. The corresponding provision is Rule 40 of the Rules.

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11.3. The Sub Registrar is to conduct an enquiry under Section 34(3) and Section 35 of the Registration Act read with Rule 41 of the Registration Rules with regard to the following aspects:

¶387

11.3.1. As to execution of the document by the executant:

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11.3.2. As to identity of the person appearing for registration

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11.3.3. Right of representative appearing

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11.4. The scope of the enquiry of the Sub Registrar is envisaged in Rule 73 of the Rules wherein the Sub Registrar may not have jurisdiction to adjudicate on the validity of the document presented. The Hon’ble Supreme Court in the case of

¶393

Satya Pal Anand v. State of M.P. , reported in (2016) 10 SCC 767 has held the following with regard to scope of the powers of enquiry of the Sub Registrar:

¶394

41. Section 35 of the Act does not confer a quasi-judicial power on the Registering Authority. The Registering Officer is expected to reassure that the document to be registered is accompanied by supporting documents. He is not expected to evaluate the title or irregularity in the document as such. The examination to be done by him is incidental, to ascertain that there is no violation of provisions of the 1908 Act. In Park View Enterprises [Park View Enterprisesv. State of T.N., AIR 1990 Mad 251 : 1989 SCC OnLine

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Mad 273] it has been observed that the function of the Registering Officer is purely administrative and not quasi-judicial. He cannot decide as to whether a document presented for registration is executed by person having title, as mentioned in the instrument. We agree with that exposition.

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11.5. A person would have a right to present a document for registration if his name is found in the previous title deed or if there is any order passed in favour of such person declaring such person to be the owner of the property. If there are no documents in regard thereto furnished by a person presenting the document for registration, it cannot be said that the person presenting the document for registration is entitled to so present the document. While examining this aspect the sub-registrar is not to determine the title to the

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property, the enquiry is limited to whether the name of the person presenting the document for registration is found in the earlier records.

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11.6. In such a situation, the Sub-Registrar is not entitled to conduct a roving enquiry to ascertain the title to the property. The claim of the person executing the document that he is the owner of the property and his identity by way of production of necessary identity proof would have to be completed by the Sub-

¶403

Registrar. Once such identity is established, the production of a photograph either as a hard copy or through the registration process and incorporating it in the document as also the thumb impression would have to be

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followed in terms of Section 32A of the Registration Act.

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11.7. Judicial notice can be taken of the fact

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that in the State of Karnataka, the only document which is found to be part of the registration and record is the document which was presented for registration. None of the other documents detailed hereinabove forms part of the registered document. Judicial note can also to be taken of the fact that registration process like that in the State of Maharashtra where apart from the document registered, all other documents relied upon for such registration including RTC, conversion orders, previous sale deeds, Power of Attorney, encumbrance certificate etc., also form part and parcel of the

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registered document. It would be advisable for the State of Karnataka to also follow a similar system so as to avoid the frequent issues raised as regards the registration of the documents being carried out by the SubRegistrar without examining the necessary documents. The Legislature and/or the concerned department may consider the above and formulate suitable rules or may amend the Act in relation thereto.

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11.8. Thus, I answer Point No. (iv) by holding that the Sub-Registrar is required to ascertain from the records if the vendors’ name is found mentioned in a previous title deed and/or the revenue records relating to the property .

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POINT NO. (v) : Can the Sub-Registrar go through and appreciate the document submitted for registration in order to ascertain whether the requirements under the Registration Act have been followed or not?

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12.1. In view of the discussion made above, Point No.(v) becomes Redundant. However, it is answered by holding that Sub-Registrar is required to appreciate the documents submitted for registration as also all other documents presented for registration to ascertain whether the requirement under the Registration Act has been followed or not since in the absence of such ascertainment, the document cannot be registered. If there are reasons to refuse registration as contained under Rule 171 of the Karnataka Registration Rules, the same would have to be recorded in Book II

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maintained by such Sub-Registrar which can only be done if the document presented for registration is appreciated in its proper perspective.

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POINT NO. (vi): In the present case, is the refusal by the Sub-Registrar to register the document on the ground that the vendor’s name was not found mentioned in the revenue records, the failure of the Petitioner to declare himself as an agriculturist while purchasing an agricultural land and the non- production of 11E sketch be a good ground for refusal of registration?

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13.1. Shri M R Rajgopal learned counsel for the Petitioner has relied upon Veerabadhrappa ’s case (Supra) to contend that the document could not been kept pending for registration and ought to have been registered. The said decision in my humble opinion would not be applicable to the facts and circumstances of the present case for the

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reason that the said decision was rendered on account of the fact that the document had not been properly stamped and this Court held that in the event of a document not being properly stamped, then the Sub-Registrar would have to impound the document and not keep the registration pending.

¶425

13.2. In view of the above discussion, coming to the facts of the case, as detailed above, In the present facts and circumstances, the refusal of registration is for reasons otherwise than being not duly stamped, the Sub-Registrar refused registration on account of the fact that the vendors’ name was not found mentioned in the revenue records. The Petitioner had failed to declare himself as an agriculturist by filing a declaration

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under Section 81A of the Land Reforms Act, 1961. 11E sketch had not been produced or annexed to the document presented for registration. Such being the case, the refusal of registration by the Sub-Registrar is proper and correct. In view thereof, the rejection of registration being on the above grounds, the decision in Veerabadhrappa ’s case (Supra) would not be applicable to the present facts and circumstances of the case.

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13.3. The Petitioner on the basis of such refusal could have approached the Registrar within 30 days of refusal order dated 08.11.2004 seeking to challenge the said endorsement, which has not been done by the Petitioner.

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13.4. The Petitioner has approached this Court in the year 2013 contending that Sub-Registrar ought to have registered the document and seeking for certiorari to quash the endorsement dated 16.8.2012 and for a mandamus directing for registration of the document presented for registration on 08.11.2004.

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13.5. From the endorsement dated 16.8.2012 it is seen that the document was registered in the pending category on 08.11.2004 and the pending No.864 of 2004 was issued. The cause of action for the Petitioner, therefore arose in the year 2004. Though the Petitioner would have challenged the same, the same was not done. The Petitioner having chosen to keep the document pending for

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registration ought to have taken such steps as are provided either to challenge the said order or comply with the requirements within a reasonable time.

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13.6. The original owner Munivenkatamma who was a party to the partition deed under which the Petitioner claims to have obtained title, along with vendors of the Petitioner have executed a sale deed on 08.11.2006 in favour of one Mr.Rakesh who is also not made as a party to the present proceedings. The Said sale deed having been executed after two years of the document in favour of the Petitioner, cannot be challenged in these proceedings.

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13.7. Challenging the said sale executed on 08.11.2006, the Petitioner had already filed a suit in O.S.No.1832/2007 seeking

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for a declaration that the Petitioner is the owner and that the sale deed dated 08.11.2006 is null and void. The said suit apparently was dismissed for nonprosecution on 15.10.2012 and thereafter the Petitioner has not taken any steps since no such document has been produced along with the Petition.

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13.8. In view of the above, the cause of action having arisen on 08.11.2004, the Petitioner having not done anything until 19.03.2012 when the first Writ Petition

¶443

was filed and thereafter taking up the matter is not entitled to any relief.

¶444

13.9. Infact on perusal of the endorsement dated 16.08.2012 it is seen that it was issued on an application filed by Munivenkatamma dated 21.05.2012 in furtherance of which notice was issued

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to the Petitioner. When the Petitioner claimed title over the property on the basis of the document pending for registration that the endorsement dated 16.08.2012 came to be issued.

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13.10. In view thereof, I am of the considered opinion that the lackadaisical conduct of the Petitioner disentitles him from any remedy at the hands of this Court.

¶449

13.11. I answer Point No. (vi) by holding that the refusal by the Sub-Registrar to register the document on the ground that the vendor’s name was not found mentioned in the revenue records, the failure of the purchaser to declare himself as an agriculturist while purchasing an agricultural land and the nonproduction of

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11E sketch would be a good ground

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for refusal of registration.

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