Muzaffar Rashid Wani vs Registrar
2022 Latest Caselaw 643 j&K/2

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR


                                                     WP(C ) No. 2279/2021

                                                   Reserved on 13.05.2022.
                                                   Pronounced on 20 .05.2022.

Muzaffar Rashid Wani                                           ..... petitioner (s)

                                Through :- Mr. M.A.Qayoom Advocate with
                                           Mr. Mian Muzaffar Advocate

                          V/s

Registrar, Anantnag and ors                                   .....Respondent(s)

                                Through :- Mr. Usman Gani, G.A for R-1&2
                                           Mr. Sajad Gulzar, Advocate for
                                           R-3

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The petitioner is aggrieved and has challenged order dated

31.08.2021 passed by respondent No.2 (Sub-Registrar, Pahalgam) and order

dated 02.11.2021 passed by respondent No.1 (Registrar, Anantnag).

2 The impugned orders have been assailed by the petitioner on

several grounds, but before I advert to the grounds of challenge, it would be

appropriate to allude briefly to the facts germane to the adjudication of

challenge by the petitioner and disposal of this petition.

3 The petitioner, as is claimed by him, purchased a piece of land

measuring 3 kanals covered by Khata No.5, Khewat No.1 and Survey No.101

min situate at Khelan Gojran, Tehsil Saller, District Anantnag [„the subject

land‟] in terms of a sale deed purported to have been executed by respondent

No.3 on 15.06.2021. The subject land is claimed to have been purchased by the

petitioner for a total sale consideration of Rs.38,47,700/-. With a view to get

the sale deed executed by respondent No.3 registered, the petitioner and

respondent No.3 mutually decided a date, but on the said appointed date,

respondent No.3 did not present himself before respondent No.2. Respondent

No.2 in terms of Section 36 of the Registration Act, 1908 [„the Registration

Act‟] called upon respondent No.3 to appear before him, either in person or by

duly authorized agent. Despite service, respondent No.3 chose not to appear

before respondent No.2. It was only on the adjourned date i.e 03.08.2021,

respondent No.3 appeared before respondent No.2, but when the registration

file was called, he fled away and, accordingly, the document was returned to

the petitioner and the matter was posted for 04.08.2021. On 04.08.2021 also,

respondent No.3 did not turn up and, therefore, respondent No.2 once again

issued a summon to respondent No.3 to appear on 09.08.2021. On 09.08.2021,

respondent No.3 appeared before respondent No.2. On the said date also, the

document could not be registered and the same was returned to the petitioner to

be presented again on 20.08.2021. On 20.08.2021, the petitioner was present in

person before respondent No.2, but respondent No. 3 did not turn up and

instead caused his appearance through his counsel Mr. Qayoom Qadri,

Advocate. The learned Advocate, who appeared for respondent No.3, prayed

for some time to cause appearance of respondent No.3 and, accordingly, on his

request, the matter was adjourned and posted for 27.08.2021. It is alleged by

the petitioner that though the case was fixed on 27.08.2021, yet respondent

No.2 took up the matter on 24.08.2021, but ultimately passed the impugned

order on 31.08.2021 refusing the registration of the document, inter alia, on

the ground that the vendor though admitted his signatures on the document, yet

refused to accede to its contents and that there was dispute with regard to

delivery of possession of the subject land, as also the payment of full

consideration by the petitioner to respondent No.3. This order of respondent

No.2 was assailed by the petitioner before respondent No.1 by way of an

appeal which appeal was considered and dismissed by respondent No.1 vide

order impugned dated 02.11.2021. Respondent No.1 came to the conclusion

that since respondent No.3 had refused to acknowledge the contents of the

document and alleged that the contents of the document were not explained to

him in his mother tongue and, therefore, he was not aware as to what was

written in the said document. This was so stated by learned counsel, who

appeared for respondent No.3 before Respondent No.1. These two orders, one

passed by respondent No.2 and other by respondent No.1 are subject matter of

challenge in this petition.

4 Before proceeding further in the matter, it is relevant to point out

that the order impugned passed by respondent No.2 has merged with the order

impugned dated 02.11.2021 passed by respondent No.1 and, therefore, was not

required to be separately challenged. As a matter of fact, the order impugned

passed by respondent No.2 was earlier challenged by the petitioner in CM(M)

No. 131/2021 filed purportedly under Article 227 of Constitution of India, but

the said petition was dismissed by a Bench of this Court on the ground of

availability of equally efficacious statutory remedy available under the

Registration Act. However, a liberty was granted to the petitioner to avail of

the statutory alternative remedy before the Authority as provided under Section

72(1) of the Registration Act .This is how the petitioner, after dismissal of the

said petition vide order dated 30.09.2021, filed an appeal before respondent

No.1 which has been dismissed by respondent No.1 in terms of impugned order

dated 02.11.2021.

5 The impugned order has been assailed by the petitioner primarily

on the ground that respondent No.1 without holding any enquiry to find out as

to whether respondent No.3 had executed the document (sale deed),

mechanically and without indicating any reasons, concurred with the view of

respondent No.2. It is contended by Mr. Qaoom, learned counsel appearing for

the petitioner that respondent No.1 did not appreciate that the petition before

him, though styled as an appeal under Section 72(1) of the Registration Act

was actually and in substance an application under Section 73 of the said Act

and, therefore, he being a Registrar under the said Act was under a statutory

obligation to hold an enquiry and then pass appropriate order for registration of

the document or its refusal as the case may be. He tried to explain the

distinction between Section 72 and Section 73 of the Registration Act and

argued that Section 72 of the said Act does not have any application where

registration of a document is refused by Sub-Registrar on the ground of denial

of execution, and in such case, the party aggrieved can move an application

before the Registrar under Section 73 of the Act and in such situation, the

Registrar is bound, in law, to enquire as to whether the document presented has

been executed and whether it meets the requirements of law for the time being

in force for registration of such document.

6 Strong reliance is placed by Mr. Qayoom on the judgment of

Hon‟ble Supreme Court in the case of Veena Singh vs. The District

Registrar/Additional Collector and another, 2022 LiveLaw (SC) 462.

7 Per contra, learned counsel appearing for respondent No.3

Mr. Sajjad Gulzar takes objection to the maintainability of the writ petition on

the ground of availability of equally efficacious alternative remedy available

under the Registration Act. He argues that the remedy against the order of

Registrar refusing to register the document under Section 72 is to file a civil

suit within a period of 30 days after making the order of refusal by the

Registrar in the Civil Court of original jurisdiction within the local limits of

whose jurisdiction the office of the Registrar is situated. He submits that the

petitioner, instead of filing a civil suit before the competent court of civil

jurisdiction, has rushed to this Court purportedly invoking the extraordinary

writ jurisdiction under Article 226 of Constitution of India. On merits, learned

counsel for respondent No.3 submits that when respondent No.3, who has

purportedly executed the sale deed in favour of the petitioner, refused to

acknowledge the execution of the document, there was no option left with the

Registering Authority, but to refuse its registration. Even before the Registrar,

in the appeal, respondent No.3 categorically stated that he was not made aware

of the contents of the documents, though he did not deny his signatures on the

document. Learned counsel, therefore, submits that mere signing of the

document is not equivalent to the execution of the document and, as such, the

appeal was rightly entertained by respondent No.1. He reiterates and asserts

that the order refusing the registration of the document has been passed by

respondent No.2 on the ground that respondent No.3 had disputed its existence

as one conceived in fraud.

8 Having heard learned counsel for the parties and perused the material on

record, it is necessary to have quick look on some salient provisions of the

Registration Act.

9 Section 17 of the Registration Act enlists the documents which are

required to be compulsorily registered. Amongst others, a non-testamentary

instrument which purports or operates to create, declare, assign, limit or

extinguish, whether in present or in future, any right, title or interest, whether

vested or contingent, of the value of one hundred rupees and upwards, to or in

immovable property is made compulsorily registerable. The document in

question i.e sale deed falls in this category of document, and therefore,

compulsorily registerable under the registration Act. Part VI of the

Registration Act deals with "presentation of documents for registration".

10 Section 32 of the Registration Act is of some relevance for our

purpose and, therefore, is set out below:

"32. Persons to present documents for registration.-Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,-

(a) by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(b) by the representative or assign of such a person, or

(c) by the agent of such a person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned".

11 From a reading of Section 32 of the Registration Act, it clearly

transpires that every document, to be registered under the registration Act,

whether such registration is compulsory or optional,shall be presented at the

proper registration office by person executing or claiming under him or by his

representative or assign or by an agent of such person, representative or assign,

duly authorized by power of attorney executed and authenticated in manner

hereinafter provided in the Registration Act.

12 Section 34 of the Registration Act lays down the provision of

enquiry by the Registering Officer before registration of a document presented

before him. The scope of enquiry to be made by the Registering officer is

delineated in sub-section 3 of Section 34 which, for facility of reference is

reproduced hereunder:

"34(3). The registering officer shall thereupon-

(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;

(b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and

(c) in the case of any person appearing as a representative, assign or agent, satisfy himself of the right of such person so to appear".

13 This brings us to Section 35 of the Registration Act which lays

down the procedure on admission and denial of execution of the document and,

as is apparent from sub-section 3 of Section 35, if any person by whom the

document purports to be executed denies its execution, or if any such person

appears to the registering officer to be a minor, an idiot or a lunatic, or if any

person by whom the document purports to be executed is dead, and his

representative or assign denies its execution, the registering officer has no

option, but to refuse to register the document as to the person so denying,

appearing or dead. The proviso (i) appended to sub-section 3 of Section 35 of

said Act, however, provides that where such officer is a Registrar, he shall

follow the procedure prescribed by Part XII.

14 In the instant case, indisputably and in view of the law laid down

by the Hon‟ble Supreme Court in the case of Veena Singh (supra), respondent

No.2 has refused the registration of document on the ground that the person i.e

respondent No.3, by whom the document purports to be executed, has denied

its execution. The expression "execution" used in Section 35 of the

Registration Act and its exact meaning was subject matter of debate in the case

of Sri N.M.Ramachandraiah vs State of Karnataka, AIR 2007 (Kar) 164,

wherein a Single Bench of Karnataka High Court formulated and decided two

important questions; one, what is the remedy to the aggrieved person against an

order of Registrar directing registration of the document; and, second, what is

the effect of the finding of the Registrar that the document is duly executed.

The Single Judge while deliberating upon the aforesaid two questions and

relying upon Division Bench Judgments of Madras High Court and Patna High

Court, in paragraph (15) concluded thus:

"15. Therefore, the law is well settled. Execution of a document does not mean merely signing, but signing by way of assent to the terms of the contract embodied in the document. Execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. It is a solemn act of the executant who must own up the recitals in the instrument and there must be clear evidence that he put the signature after knowing the contents of document fully. To be executed, a document must be in existence; where there is no document in existence there cannot be execution. Mere proof or admission that a person's signature appears on a document cannot by itself amount to execution of a document. Registration does not dispense with the necessity of proof of execution when the same is denied. Thus, execution of document is not mere signing of it"

15 The same issue also fell for consideration before the Hon‟ble

Supreme Court in the case of Veena Singh (supra). The three Judge Bench of

the Supreme Court explained the meaning of „execution‟, the expression used

in Section 35 elaborately. The Supreme Court, after going through the

judgments of various High Courts and having regard to the meaning ascribed to

the term "execution", in various authoritative Law Lexicons, in paragraphs 57,

60 and 64, held thus:

"57 The execution of a document does not stand admitted merely because a person admits to having signed the document. Such an interpretation accounts for circumstances where an individual

signs a blank paper and it is later converted into a different document, or when an individual is made to sign a document without fully understanding its contents. Adopting a contrary interpretation would unfairly put the burden upon the person denying execution to challenge the registration before a civil court or a writ court, since registration will have to be allowed once the signature has been admitted".

"60. The Registration Act exists so that information about documents can be put into the public domain, where it can be accessed by anyone in order to prevent forgeries and fraud, and so that individuals can be aware of the status of properties. If the interpretation conflating signing with execution is adopted, it would ensure that the Sub-Registrars/Registrars will continuously end up registering documents whose validity will inevitably be then disputed in a civil suit or a writ petition. While the suit or writ proceedings continue, the document would remain on the public records as a registered instrument, which has the potential to cause more disruption. Hence, such an interpretation should not be adopted by this Court."

" 64. Therefore, in a situation where an individual admits their signature on a document but denies its execution, the Sub- Registrar is bound to refuse registration in accordance with Sections 35(3)(a) of the Registration Act. Subsequently, if an application if filed under Section 73, the Registrar is entrusted with the power of conducting an enquiry of a quasi-judicial nature under Section 74. If the Registrar passes an order refusing registration under Section 76, the party presenting the document for registration has the remedy of filing a civil suit under Section 77 of the Registration Act, where a competent civil court will be able to adjudicate upon the question of fact conclusively".

(underlined by me)

16 It is, thus, trite law that the execution of a document does not

mean merely signing, but signing by way of assent to the terms of the contract

embodied in the document. If a person by whom the document purports to be

executed admits his signatures on the document, but denies its contents, it

would be tantamount to admitting the signatures on a document which is

non-est in the eye of law. A document, to be executed, must be in existence and

where there is no document in existence there cannot be any execution. For

instance, the executant appearing before the registering authority admits his

signatures on the document, but submits that he was made to sign on the blank

paper by misrepresentation or under coercion or that the document which he

signed is not a document which was contemplated, such statement is a clear

denial and not an admission of execution.

17 Viewed thus, in the instant case, as is apparent from the impugned

orders, respondent No.3 admitted his signatures on the document purportedly

executed by him and presented before the registering authority, but he

categorically denied its contents. In view of the legal position discussed above,

it is a foregone conclusion that the Sub-Registrar i.e respondent No.2 has

refused to register the document primarily on the ground of refusal of its

execution by respondent No.3. In such a situation, appeal under Section 72(1)

was not maintainable. For quick reference Section 72(1) is reproduced herein

below:

"Section 72(1) in The Registration Act, 1908 (1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub-Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub-Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order.

18 From a reading of sub-section 1 of Section 72 of the Registration

Act, it is beyond any pale of doubt that an appeal would lie before the Registrar

against an order of the Sub-Registrar refusing to admit a document to

registration except where the refusal is made on the ground of denial of

execution. That being the clear position emerging from the plain reading of

Section 72(1) of the Registration Act, the appeal entertained and disposed of by

the Registrar i.e respondent No.1 was not maintainable. The Registrar ought to

have treated the appeal filed by the petitioner as an application under Section

73 of the Act and proceeded in the matter by holding an enquiry as envisaged

under Section 74 of the Act and by following the procedure laid down in the

subsequent Sections i.e Sections 75 and 76 of the Act. This, however, has not

happened in the instant case.

19 I am not impressed by the argument of learned counsel for

respondent No.3 that in view of order of this Court dated 30.09.2021 passed in

CM(M) No. 131/2021, the petitioner had no option, but to file an appeal under

Section 72(1) of the Registration and, therefore, the Registrar committed no

illegality in entertaining and refusing the same on merits. There is inherent

fallacy in the argument of learned counsel of respondent No.3.

20 It is true that vide order dated 30.09.2021, this Court while

disposing of a petition i.e CM (M) No. 131/2021 on the ground of availability

of statutory alternative remedy, gave liberty to the petitioner to file an appeal as

provided under Section 72(1) of the Registration Act against the order of

refusal of registration of the document passed by respondent No.2 but the

liberty granted to the petitioner to avail of the appropriate remedy cannot be

constructed as a mandamus by this Court to necessarily file an appeal under

Section 72 (1) of the Act even if it is not maintainable in law. Nor the Registrar

was bound to entertain the same even if it was not maintainable before him.

The order dated 30.09.2021 passed by this Court in CM (M) No.131/2021 is to

be construed as an order of dismissal of the petition with liberty to the

petitioner to avail of the alternative remedy as may be available to him under

law and in accordance with law. Construed thus, I have no hesitation to hold

that the Registrar by entertaining the appeal under Section 72 (1) of the

Registration Act has committed grave illegality. Indisputably, the order of

refusal to register the document in question was passed by the Sub- Registrar

essentially and ostensibly on the ground of refusal by respondent No.3 to admit

its execution and, was therefore, clearly excluded from the purview of Section

72(1) of the Act .

21 Now the question arises whether the Registrar could have treated

the petition labeled as an appeal under Section 72(1) of the Registration Act as

an application under Section 73 of the said Act. The answer to this question is

in affirmative. It is not the label, but substance of the application that

determines the jurisdiction of a Court or a forum. Admittedly, and as discussed

above, the appeal under Section 72(1) of Registration Act was not

maintainable. The Registrar ought to have either rejected the appeal being not

maintainable or could have treated the same as an application under Section 73

(1) of Registration Act if it was meeting the requirements of Section 73 of the

said Act. Perhaps like the parties, the Registrar too was labouring under the

impression that in view of the judgment of this Court dated 30.09.2021 (supra),

he was bound to entertain the appeal and decide the same on merits. As

explained, this was not correct course of action required to be adopted in the

matter. I am of the firm view that it was a fit case where the Registrar should

have treated the appeal preferred under section 72(1) of the Registration Act as

an application under Section 73 of the said Act. He could have well followed

the procedure laid down in Section 74 of the Registration Act and proceeded

under subsequent Sections i.e sections 75 and 76 of the said Act. Even in the

judgment of Veena Singh (supra) dealing with somewhat similar situation

where an application under Section 73 was wrongly labeled as an appeal under

Section 72 of the Registration Act, the Supreme Court, in paras (37) and (38)

considered this aspect and opined in the following manner:

"37. Mulla‟s commentary on The Registration Act analyses a situation where an application under Section 73 is wrongly labelled as an appeal under Section 72, in the following extract:

"If a refusal is made on the ground of denial of execution, appeal would not lie under Section 72 of the Act. When the refusal is denied on the execution, remedy is to file an application under Section 73 of the Act. The mere fact that an application is wrongly headed as an appeal and an erroneous section of the statute is mentioned therein is immaterial, if in fact and in law it is an application under Section 73 of the Registration Act."

Similarly, in S P Sen Gupta‟s commentary on the Registration Act, it is stated:

" Proceeding erroneously described as "appeal" or vice versa. A proceeding under Section. 72 is an appeal whereas a proceeding under Section. 73 is not an appeal; it is merely an application before the Registrar in order to establish the applicants right to have the document registered. It is not always easy for the aggrieved party or even by the Registrar to decide which of the two sections - Section 72 or Section 73, would apply on a given facts circumstances. Law is meant for doing justice. As such the substance of the proceeding, and not its form, before the Registrar should be taken into account. As such it would not be fatal if an appeal under Section 72 is filed as an application under Seection 73 and vice versa

"38. Thus, it is clear that the mis-labelling of an application under Section 73 as an appeal under Section 72 would by itself not vitiate the proceedings before the Registrar. This becomes especially true when proceedings before the Registrar, in substance, were proceedings under Section 73 itself and both the parties acknowledged them to be so, explicitly or by their conduct.

This is clearly what has happened in the present case as well, as is evident from the appellant„s reference to Section 75(4) and her participation in the enquiry proceedings before the District Registrar. Therefore, we hold that the second respondent„s mis-labelling of their application as an appeal under Section 72 will not vitiate the proceedings which led to the District Registrar„s order dated 31 March 2012. Hence, for the purpose of these proceedings, we will now proceed to analyse as to whether the District Registrar validly passed the order directing the registration of the sale deed".

22 In view of what is held by the Supreme Court in the aforesaid

paragraphs of the judgment, there remains no controversy that it is the

substance and not the label that should be looked into for exercising the

jurisdiction vested under the statute or law. Having held that the application

labeled by the petitioner as an appeal under section 72(1) against the order of

Sub-Registrar refusing to admit a document to registration on the ground of

denial of execution was actually and in essence an application under Section 73

of the Registration Act, it was incumbent on the Registrar to deal with it

accordingly. Therefore, I overrule the objection of the learned counsel for

respondent No.3 to the maintainability of the writ petition on the ground of

availability of alternative remedy of suit under Section 77 of the Registration

Act.

23 It may be pointed out that the remedy of suit against the order of

refusal to register a document by the Registrar is available only where the

refusal by the Registrar to admit the document, to be registered is under

Section 72 or 76 of the Registration Act. In the instant case, the refusal by the

Registrar to admit the document to registration is neither traceable to Section

72, nor referable to Section 76 of the Act. At this juncture, I deem it

appropriate to set out the observations of the Supreme Court made in

paragraphs 63 and 64 in Veena Singh's case (sura) wherein the Supreme Court

has elaborately explained the procedure to be followed by the Registrar once an

application is presented before him under Section 73 of the Registration Act.

"63. Section 73 of the Registration Act envisages that an application may be submitted to the Registrar by a person in order to establish their rights to have a document registered, in a situation where the Sub-Registrar has refused to register the document on the ground that the person by whom it purports to have been executed has denied its execution. Section 74 then lays down the procedure which is to be followed by the Registrar,

which contemplates an enquiry by the Registrar into whether the document has been executed and whether requirements of law for the time being in force have been complied with on the part of the applicant or the person presenting the document for registration.

When the twin requirements of clauses (a) and (b) of Section 74 are found by the Registrar to have been fulfilled, sub-Section (1) of Section 75 provides that the Registrar shall order the document be registered. Sub-Section (4) of Section 75 stipulates that for the purpose of the enquiry under Section 74, the Registrar may summon and enforce the attendance of witnesses and compel them to give evidence as if he is a civil court. The Registrar is also empowered to impose the obligation of paying the costs of the enquiry on a party, and such costs are to be recovered as if they have been charged in a suit under the CPC. Thus, sub-Section (4) of Section 75 incorporates a deeming fiction from two perspectives - first, in empowering the Registrar to summon and enforce the attendance of witnesses and for compelling them to give evidence "as if he were a civil court"; and second, in awarding costs which become recoverable "as if they have been awarded in a suit" under the CPC. The process which is conducted by the Registrar for the purpose of an enquiry under Section 74 cannot be equated to the powers of the civil court, though certain powers which are entrusted to a civil court are vested with the Registrar by the provisions of Section 75(4). A quasi- judicial function is entrusted to the Registrar for the purpose of conducting an enquiry under Section 74. Where the Registrar refuses to register a document under Sections 72 or 76, no appeal lies against such an order. Section 77, however, provides that when the Registrar refuses to order the document to be registered, any person claiming under such document or its representative, assign or agents may institute a suit before the civil court within the stipulated time for a decree directing that the document shall be registered. It is thus clear that the Registrar, when he conducts an enquiry under Section 74, does not stand constituted as a civil court. The enquiry before the Registrar is summary in nature. The decision of the Registrar in ordering document to be registered, or for that matter in refusing to register a document, is not conclusive and is amenable to judicial review".

"64 Therefore, in a situation where an individual admits their signature on a document but denies its execution, the Sub- Registrar is bound to refuse registration in accordance with Sections 35(3)(a) of the Registration Act. Subsequently, if an application if filed under Section 73, the Registrar is entrusted

with the power of conducting an enquiry of a quasi-judicial nature under Section 74. If the Registrar passes an order refusing registration under Section 76, the party presenting the document for registration has the remedy of filing a civil suit under Section 77 of the Registration Act, where a competent civil court will be able to adjudicate upon the question of fact conclusively".

24 I would have readily agreed and conceded to the argument of

learned counsel for respondent No.3 that against the order of refusal to register

a document passed under Section 72 or section 76 of the Registration Act, the

remedy of an aggrieved party lies before the Civil Court under Section 77 of

the said Act and would have relegated the petitioner to such remedy. However,

I am not doing so for the simple reason that the order impugned passed by the

Registrar is neither under Section 72, nor under section 76 of the Registration

Act. It is not under section 72 of the Act for the reason that that an appeal

under Section 72(1) was not maintainable against the order of refusal by

sub-Registrar to admit the document to be registered on the ground of refusal

by the executant to admit its execution. The order cannot be construed to be

one passed by the Registrar under section 76 of the said Act for the simple

reason that he has not followed the procedure laid down under Section 74, 75

and 76 of the Registration Act. The order, as it is, is apparently under no

provisions of law. Relegating the petitioner to the remedy of a civil suit when

there is no adjudication by the Registrar with regard to the execution of the

document in question by respondent No.3 is of no avail and would be a

exercise in futility. The Civil Court may be in a position to adjudicate the

matter only when there is a refusal by the Registrar to admit the document to

be registered after holding an enquiry as envisaged under Section 74 of the

Registration Act and returning a finding that the document has not been

executed by the person by whom it purports to be executed. Since nothing of

the sort has happened in the instant case and the Registrar has not proceeded

under Section 73, 74, 75 & 76 of Registration Act and, therefore, the order

impugned does not fall either within the ambit of Section 72 as explained

above or Section 76 of the said Act. In view of the aforesaid, I do not deem it

appropriate to refer to the case law cited before me by learned counsel for

respondent No.3 with regard to scope of interference by this Court while

exercising its writ jurisdiction under Article 226 of the Constitution of India in

a matter where there is a equally efficacious alternative remedy available to the

party aggrieved.

25 For the foregoing reasons, this petition is allowed. The order

impugned passed by the Registrar is set aside. The matter is remitted back to

the Registrar, who shall treat the appeal filed by the petitioner purportedly

under section 72(1) of the Registration Act as an application under section 73

of the said Act and proceed in the matter in the manner prescribed under

sections 74, 75 & 76 of the Registration Act. He shall do well to conduct the

requisite enquiry and take appropriate decision in the matter within a period of

two months from the date the parties are summoned by him to appear before

him with a view to proceed in the matter in the manner prescribed above.

Disposed of in the above terms.

(SANJEEV KUMAR) JUDGE Srinagar 20.05.2022 Sanjeev

Whether order is speaking: Yes

Whether order is reportable: Yes