Naren Chandra Naskar vs Arun Bhattacharya & Ors

being Deed No.3203 of 1989 and recorded in 2

Book No.1, Volume No.75, at Pages 167-174,

have given rise to Alipore Police Station

Case No.110 of 2006. The said complaint was

filed by Shri S.K. Debnath, the District

Registrar, South 24 Parganas, in respect

whereof a charge-sheet has been submitted

against the appellant herein alleging the

commission of offences under Sections 471/420

IPC. Both the purchasers claimed to be in

undisturbed possession of the lands forming

the subject matter of their respective

Conveyances.

3. The controversy relating to the complaint

filed by the District Registrar, South 24

Parganas, is with regard to the identical

registration details and the fact that the sale

deed of the respondent No.1 was not traceable

in the records of the office of the

complainant. Claiming the deed of the appellant

herein to have been forged and wrongfully

placed in Volume 75 of 1989 in Index I, 3

maintained in the District Registrar's office,

Alipore, the respondent No.1 filed a writ

petition before the High Court, inter alia,

alleging that his Deed, which was the genuine

deed, had been removed from the records and

replaced with the forged deed of the appellant

herein. He therefore, prayed for a direction

upon the concerned respondents, and, in

particular, the respondent No.2, to remove the

appellant's deed from the records and to

restore his deed in its place. The other relief

sought for by the respondent No.1 herein was

for a direction upon the respondent No.4, the

Officer in-Charge, Alipore Police Station,

South 24 Parganas, to cause a thorough inquiry

on the basis of the First Information Report

lodged by the District Registrar, South 24

Parganas, and to proceed against the culprits

in accordance with the law.

4. The learned Single Judge who heard the

writ petition took note of the fact that

action had been taken on the basis of the 4

complaint made by the District Registrar,

South 24 Parganas and that Alipore Police

Station Case No.110 dated 27.5.2006 had been

instituted under Sections 467/468/471/420 and

120-B IPC. It was also noted that further

investigation into the complaint was being

conducted.

5.In that view of the matter, the learned

Single Judge held that since the

investigation was on, no further order was

required to be passed on the writ petition

and disposed of the same.

6.Aggrieved by the order of the learned Single

Judge, the respondent herein filed a Mandamus

Appeal (F.M.A. No.816 of 2006), which was

heard and disposed of on 9.11.2006. Taking

note of the case of the respondent No.1 that

he had come to learn from the proposed buyer

that his sale deed was not traceable in the

concerned Volume Register maintained in the 5

Registration Office and that another sale

deed pertaining to a totally separate plot of

land with the identical registration details

was in the records, the High Court felt that

the learned Single Judge ought not to have

rejected the writ petition filed by the

respondent No.1 only on the ground that a

criminal case is pending. Accordingly, while

disposing of the appeal the Division Bench

set aside the order of the learned Single

Judge and directed the District Registrar,

South 24 Parganas, to conduct an enquiry and

if it appeared that the deed of the

respondent No.1 herein was a genuine

document, to place the copy of the same at

the appropriate place of the Book Volume. It

was also observed that in the event the Deed

of the respondent No.1 was not found to be

genuine, the respondent No.2 would be

required to take appropriate action against

the said respondent.

6

7.The special leave petition has been filed

against the said order of the Division Bench

of the Calcutta High Court disposing of the

writ appeal of the respondent No.1. It

appears that in terms of the order of the

Division Bench of the High Court the District

Registrar, fixed 12th January, 2007, for

hearing but the said hearing was adjourned to

31st January, 2007, on the ground of the

appellant's illness. In between on 11th

January, 2007, the present Special Leave

Petition was filed.

8.From the records it appears that the enquiry

was held on 31st January, 2007, as scheduled

in the absence of the appellant herein and

the District Registrar came to a finding that

the deed produced by the respondent No.1,

Arun Bhattacharya, was genuine. However,

according to the appellant the said order or

finding was not communicated to him. 7

9.Meanwhile, on 8th March, 2007, when the

Special Leave Petition was taken up for

preliminary hearing, this Court issued notice

and also stayed the directions of the High

Court to keep a copy of the document which

was found to be genuine in the appropriate

place of the Book Volume.

10.On 6th September, 2007, a charge-sheet was

submitted against the appellant in Alipore

Police Station Case No.110 of 2006, which had

been registered on the complaint of Shri S.K.

Debnath, District Registrar, South 24

Parganas, alleging the commission of offences

by the appellant under Sections 471/420 IPC.

11.Appearing for the appellant, Mr. Pradip

Ghosh, learned senior counsel, questioned the

propriety of the order passed by the Division

Bench of the High Court on several grounds.

It was firstly urged that the Division Bench

of the High Court erred in directing the same 8

officer, who had lodged the complaint against

the appellant, to conduct the enquiry into

the genuineness of the two sale deeds. Mr.

Ghosh submitted that asking the same officer,

who had already formed an opinion regarding

the appellant's guilt, to conduct the enquiry

as to whether the appellant's sale Deed was

genuine or not, could prejudice the outcome

of the enquiry as the judgment of the said

officer could be clouded by bias against the

appellant. It was submitted that the

judgment of the High Court and the directions

contained therein were heavily loaded against

the appellant and to his severe prejudice.

12.It was also submitted that the bias of the

District Judge came through strongly on

account of the fact that despite the High

Court's directions to consider the

genuineness of both the sale deeds executed

in favour of respondent No.1 and the

appellant, a decision was rendered by the 9

said officer only with regard to the

genuineness of the sale deed of the

respondent No.1. It was submitted that, in

fact, the enquiry directed to be conducted,

was confined only to the genuineness of the

respondent No.1's sale deed, without going

into the genuineness of the appellant's

document also.

13.It was urged that an error on the part of

the office of respondent No.2 in dealing with

the two Sale Deeds could not be discounted

and it was, therefore, absolutely necessary

for the respondent No.2 to have gone into the

genuineness of the appellant's sale Deed as

well before arriving at a finding as to

whether any fraud or forgery had at all been

committed.

14.Mr. Ghosh urged that on 2nd June, 2005, some

miscreants had tresspassed into the

appellant's property and had demolished the 10

rooms erected thereupon by the appellant. A

written complaint was lodged by the appellant

on 3rd June, 2005, before the Inspector-in-

Charge, Sonarpur Police Station on the basis

whereof Sonarpur P.S. Case No. 218 dated 3rd

June, 2005, was registered under Sections

147/148/149/427/506 IPC and that during the

investigation, the Investigating Officer

seized certain articles from the place of

occurrence to which one Dipankar Dey was a

seizure witness. On 16th September, 2005, the

said Mr. Dipankar Dey, in his alleged

capacity as the Constituted Attorney of one

Shrimati Anjali Ghosh, daughter of the

appellant's vendor, filed a suit for

declaration and permanent injunction, being

Title Suit No. 141 of 2005, against the

appellant before the learned Civil Judge

(Junior Division) 2nd Court at Baruipur, in

respect of the plot of land acquired by the

appellant by virtue of the sale deed executed

in his favour by Sayaram Basu, together with 11

an application for temporary injunction under

Order 39 Rules 1 and 2 and Section 151 of the

Code of Civil Procedure. The said application

for temporary injunction was rejected by the

learned Civil Judge but the suit is pending

disposal before the said Court.

15.On 3rd March, 2006, the said Dipankar Dey

having failed to obtain an interim order in

his suit, made an application on 3rd March,

2006, to the Inspector General of

Registration, Revenue Department, alleging

that the registration of the appellant's sale

deed had been effected in a forged and

fraudulent manner. Mr. Ghosh submitted that

though the title suit filed by Shri Dipankar

Dey stood dismissed, the writ petition was

thereafter filed despite the order of the

civil court. Mr. Ghosh submitted that such

an enquiry as directed by the Writ Court,

which had the effect of by passing the decree 12

of the civil court was, entirely without

jurisdiction and was liable to be set aside.

16.Mr. Ghosh concluded on the note that on the

strength of the two Conveyances both the

appellant, as well as the respondent, have

been in undisturbed possession of the

properties conveyed to them by their

respective deeds. Therefore, the dispute

which has been raised only requires

correction by the allotment of a different

number to one of the two documents,

particularly when the suit for declaration

which had been filed by the said Dipankar

Dey, on behalf of the daughter of the

appellant's vendor, was dismissed and no

further steps were taken in respect thereof.

17.The specific case made out on behalf of the

respondent No.1 was that the Sale Deed of the

respondent No.1 was the document which had

been registered before the District

Registrar, South 24 Parganas, on 14th March, 13

1989, and had been numbered as Deed No. 3203

of 1989 and recorded in Book No.1, Volume No.

75 at pages 167-174 and that any other

document which purported to have the same

registration particulars had to be a forged

and/or fabricated document which had been

fraudulently inserted in the records of the

District Registrar in place of the Deed of

the respondent No.1. A complaint had,

therefore, been made to the District

Registrar to hold an enquiry into the matter

and thereafter to place the document of the

respondent No.1 in the concerned Book and

Volume maintained under Section 51 of the

Registration Act, 1908.

18.Reference was also made to the affidavit

affirmed by the District Registrar, South 24

Parganas, the respondent No.3 herein, wherein

it has been mentioned that an enquiry was

commenced by him pursuant to the direction

given by the High Court in its order dated 9th

November, 2006. During the course of the 14

enquiry, the appellant had been asked to

produce his original document, but neither

did he appear on the date fixed (12.1.2007)

nor did he produce the original Sale Deed.

Only a prayer was made by his learned

advocate to adjourn the hearing. It was, in

fact, adjourned to 31st January, 2007. On the

said date, although, the respondent No.1 was

present, the appellant again remained absent

and his advocate merely informed the District

Registrar that a Special Leave Petition had

been filed before this Court against the

order of the High Court directing him to

conduct the enquiry. However, on a careful

examination of the Deed produced by the

Respondent No.1 and upon verification of the

relevant office records, the District

Registrar came to the conclusion that the

Deed produced by the respondent No.1,bearing

No. 3203 of 1989, executed and registered in

his favour by Shri Manindranath Ghosal, was

genuine.

15

19.Mr. Dhruv Mehta, learned advocate, who

appeared for the respondent No.1 pointed out

from the report of the District Registrar

that he had taken due note of the stay order

passed by this Court in this Civil Appeal in

which the District Registrar was also

directed to proceed with the enquiry.

20.Reference was also made to the affidavit

filed on behalf of the Officer-in-Charge,

Alipore Police Station, wherein it had been

mentioned that during the course of

investigation it was noticed that the

Register Volume-I is accessible to the

members of public for the purpose of

searching for information in respect of

properties. In the affidavit, it was also

mentioned that any person with malafide

intention could replace a document in the

said Register, if he wanted to.

16

21.Mr. Mehta also urged that although the

Registration Act is silent as to whether the

District Registrar can conduct an enquiry of

the nature undertaken in the instant case,

there can be no bar to such an enquiry being

conducted on the orders of the High Court, if

the same was a fact-finding enquiry. It was

urged that the High Court, in exercise of its

powers under Article 226 of the Constitution,

was fully competent to order such an enquiry

to be conducted to enable the Court to arrive

at a proper finding with regard to the

dispute. Mr. Mehta submitted that the

enquiry conducted by the District Registrar

on the direction given by the High Court

could not be challenged on the ground that

the Registration Act did not provide for such

an enquiry to be undertaken.

22.Mr. Tara Chand Sharma, learned advocate,

appearing for the State of West Bengal and

its officials, supported the submissions 17

advanced on behalf of the respondent No.1 and

urged that despite having been given an

opportunity to prove that his document was

genuine and that some mistake may have taken

place in numbering of the two Deeds and

recording their registration in Book No.1,

Volume No.75, the appellant avoided the

enquiry for reasons best known to him and

even after appearing before the District

Registrar through his learned advocate, he

ultimately chose not to avail of such

opportunity and filed the present Civil

Appeal instead. It was urged that it was no

longer open to the appellant to claim that

his Deed had been rightly numbered as Deed

No. 3203 of 1989.

23.Having carefully considered the submissions

made on behalf of the respective parties and

the materials on record, we are inclined to

agree with Mr. Mehta that the enquiry

conducted by the District Registrar under the 18

directions of the High Court in exercise of

its jurisdiction under Article 226 of the

Constitution cannot be called into question

on the ground that the Registration Act did

not provide for such enquiry to be conducted

by the said officer. We are, therefore, not

inclined to interfere with the finding of the

District Registrar that the Sale Deed

executed in favour of the respondent No.1 by

Shri Manindranath Ghosal had been correctly

numbered as Deed No. 3203 of 1989 and

correctly entered in Book No.1, Volume No.75

and that in terms of the order passed by the

High Court a copy of the same is required to

be kept in the said Book-Volume. To that

extent, there is no reason to interfere with

the directions and order passed by the High

Court.

24.We are also not inclined to accept Mr.

Ghosh's submission that since the suit filed

by Shri Dipankar Dey on behalf of the 19

daughter of the appellant's vendor had been

dismissed for default, no further direction

could have been given by the Writ Court to

conduct an enquiry into the genuineness of

the appellant's Deed in view of the

provisions of Order 23 Rule 1 of the Code of

Civil Procedure. Though, it may be said

that the rights of the parties in the suit in

regard to the land forming the subject matter

of the appellant's Sale Deed cannot be gone

into any further, the question relating to

the genuineness of the Sale Deed executed and

registered in the appellant's favour remains

to be decided as the same had not been

decided either in the suit or before any

other forum. It is probably with that object

in mind that both the High Court and this

Court had directed the enquiry to continue

while restraining the respondent No.1 from

acting on the findings in the enquiry to

place a copy of the Sale Deed of the

respondent No.1 in the relevant place of Book 20

No.1, Volume No.75, in the office of the

District Registrar, South 24 Parganas.

25.However, there is another angle to the

matter, which appears to have been overlooked

both by the District Registrar as well as by

the High Court. During the enquiry, on

account of the failure of the appellant to

produce his original document before the

District Registrar, the status of his

document was not decided, although, there was

a direction by the High Court to consider

both the documents. A finding should,

therefore, have been arrived at either by the

District Registrar or the High Court

regarding the genuineness of the appellant's

document. On such count we are inclined to

agree with Mr. Ghosh that the genuineness of

the appellant's Deed should also have been

examined. We also agree with Mr. Ghosh that

since the complaint had been lodged by the

District Registrar concerned against the 21

appellant, the said officer should not have

been entrusted by the High Court with the

enquiry, since he had already dealt with the

matter and had arrived at the conclusion that

a prima facie case had been made out against

the appellant.

26.We, therefore, allow the appeal in part to

the extent indicated hereinbelow:

(a) Without disturbing the findings of the District Registrar with regard to the genuineness of the Sale Deed of the respondent No.1, we direct the Inspector General of Registration, West Bengal, to conduct a separate enquiry into the matter, with reference to the genuineness of the appellant's document, and to pass appropriate orders thereupon.

(b) The appellant is directed to appear before the Inspector General of

Registration on 20th October, 2008, at 11 a.m. for the purpose of the enquiry.

In the event the appellant does not 22

appear before the said Authority on the aforesaid date, the enquiry should be deemed to be closed, but this will not prevent the appellant from seeking his remedy, if any, before any other forum.

(c) If the Inspector General of Registration is satisfied that even the appellant's Sale Deed is genuine and some mistake in numbering may have occurred in the office of the District Registrar, South 24 Parganas, he shall take necessary steps to have the error corrected so that both the Sale Deeds are placed in the Book/Volume maintained in the office of the District Registrar. If, however, he arrives at a finding that the appellant's Sale Deed does not appear to be genuine, he shall close the enquiry and direct the District Registrar, South 24 Parganas, to take such action as indicated in the order of the High Court.

27. There will be no order as to costs. 23

.............................................J. (ALTAMAS KABIR)

.............................................J. (MARKANDEY KATJU) New Delhi Dated: 24.9.2008