Madhya Pradesh High Court
Ansal Buildwell Limited 12 Tolstoy Road ... vs Rishi Suneja on 23 April, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
WRIT PETITION No. 22392 of 2019
ANSAL BUILDWELL LIMITED 12 TOLSTOY ROAD NEW
DELHI
Versus
RISHI SUNEJA AND OTHERS
Appearance:
Shri J.S. Kaurav - Advocate appeared for petitioner.
Shri P.C. Chandil with Shri Dinesh Baghel - Advocate the
respondent [R-1].
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Reserved on 03/04/2025
Delivered on 23/04/2025
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ORDER
The present petitioner had filed the petition under Article
226/227 of the Constitution of India for issuance of writ of
certiorari seeking quashment of the order dated 04.10.2019 passed
by Additional Commissioner, Gwalior Division, Gwalior in
Appeal No.136/2018-19, whereby the appeal preferred by present
respondents no.1 and 2 was allowed and the order dated
20.02.2019 passed by SDO (Revenue) Morar, Gwalior in Case
No.8/15-16/Appeal was set aside as well as the order passed by
Tehsildar Morar dated 08.10.2010 passed in Case No.162/2009-
10/A-6 was set aside which was absolutely without jurisdiction
and contrary to law, therefore, is liable to be set aside.
2. Short facts of the case are that respondent no.3 to 8 were
owners of land bearing survey no.197 ad-measuring 0.648
hectares and survey no.231 ad-measuring 0.408 hectares total ad-
measuring 1.056 hectares i.e. 5 bigha and 1 biswa situated at
Village Maharajpura Gird, Pargana and District Gwalior.
3. The petitioner vide registered sale-deed dated 28.01.2008
had purchased land ad-measuring 1.425 hectares i.e. 6 bigha 16
biswa for consideration of one crore and the actual vacant
possession of the land was delivered to it on the same date in
pursuance to the said sale-deed and since then the petitioner had
been in continuous possession thereof.
4. Present respondent no.1 and 2 on 04.08.2010 moved an
application under Section 109 and 110 of the MPLRC for
mutating their names in the revenue records alleging that they had
purchased the land from respondents no.3 to 8 vide sale-deed
dated 09.07.2007 though, admittedly, the sale-deed was not
properly stamped, but later on was impounded under Section 33
of the Stamp Act and ultimately, was registered on 12.05.2015 and
on the same date power of attorney was also executed by
respondents no.3 to 8 in favor of respondent no.1.
5. The Tehsildar after registration of the case issued notices to
Smt. Ramdehi w/o Late Shri Shobharam who had filed objections
in respect of the mutations as sought by way of application and
after considering the validity of the sale-deed ultimately passed an
order directing mutation of the name of the petitioner in the
revenue papers on the basis of the sale-deed. Aggrieved by the
same First Appeal was preferred by respondents no.1 and 2 which
was dismissed vide order dated 20.02.2019 by the SDO and the
order of Tehsildar was affirmed.
6. Before passing of the order in appeal, the SDO had called
report from the sub-registrar with regard to the sale-deeds dated
09.07.2007 and 28.01.2008 vide letter dated 31.01.2019. In
compliance of the said letter of the SDO, sub-registrar sent a
report dated 11.02.2019 in which it was mentioned that sale-deed
dated 28.01.2008 executed in favor of the petitioner was
registered on 27.02.2015 and the sale-deed dated 09.07.2007
executed in favor of respondents no.1 and 2 was registered on
12.05.2015, therefore, the sale-deed dated 09.07.2007 was
registered later than the sale-deed dated 28.01.2008. Aggrieved by
the order passed by the SDO a Second Appeal was preferred by
respondents no.1 and 2 which was allowed and the orders of SDO
and Tehsildar were set aside and it was held that the sale-deed
executed in favor of respondents no.1 and 2 on 09.07.2007 and
registered on 12.05.2015 will prevail over the sale-deed dated
28.01.2008 because the registration go back to the date on which
the document was presented for registration which was of the
year, 2007, thus, the said registration would be deemed to be prior
in time in favor of respondent no.1 and 2. Aggrieved by the
aforesaid order present petition has been filed.
7. Learned counsel for the petitioner has argued before this
Court that Additional Commissioner, Gwalior Division, Gwalior
had utterly failed to construe the true nature of the Section 47 of
the Indian Registration Act and Section 54 of the Transfer of
Property Act as both the sections are separate and have different
field and application. It was further argued that besides the
aforesaid, the Courts below had concurrently given a finding that
the petitioner is entitled to get its name mutated in the revenue
records as per Section 109 and 110 of the MPLRC and the reason
was that the sale-deed executed in favor of the petitioner was
dated 28.01.2008 though it was registered on 19.02.2008 and
since the said document was perfect, complete and valid,
therefore, the name of the petitioner was rightly mutated in the
revenue records.
8. It was further argued that position of law with regard to
Section 47 is very clear as the aforesaid section stipulates time
from which the registered document would take the effect of
operation and the registered document shall operate only from the
time which it would have commenced to operate if no registration
thereof would have been required or made and not from the time
of its registration whereas Section 54 of the Transfer of Property
Act defines "Sale" which is a transfer of ownership in exchange
for a price paid or promised or part-paid and part-promised. Such
transfer, in the case of tangible immovable property of the value
of one hundred rupees and upwards, or in the case of a reversion
or other intangible thing, can be made only by a registered
instrument. Thus, the immovable property can be transferred for
the consideration or exchange for a price paid or promised or part-
paid and part-promised and would mean that it can be done only
by way of registered sale-deed, therefore, the difference between
Section 47 of the Registration Act and Transfer of Property Act
clearly stipulates that the sale is complete only after registration
and if it is not registered, the sale is not complete. Thus, the sale-
deed though executed prior to the sale of petitioner, but it was
registered only in the year, 2015 therefore, the sale being in regard
to the tangible immovable property was completed after the date
on which the sale-deed of the petitioner was registered and as the
sale made in favor of respondents no.1 and 2 could be said to be
valid only from the date of its registration, the learned Additional
Commissioner had committed grave illegality in allowing the
appeal and dismissing the earlier orders which are bad in law.
9. While referring to judgment of the Apex Court in the matter
of Har Narain (Dead) by legal heirs vs. Mam Chand (Dead) by
legal heirs and Ors reported in 2010 (13) SCC 128 learned
counsel had argued that the Apex Court while dealing with the
similar matter had laid down the precedent holding fiction created
by registered document to the date of its execution, created by
Section 47 and commencement of its applicability, to sale of
immovable property. In view of mandatory provisions of Section
54 Transfer of Property Act, which was only by way of registered
instrument would be said to be completed and effective only when
it stands registered. Hence the said fiction can be said to be
applicable to date of sale of immovable property before its actual
registration, thus, it was submitted that the sale-deed of the year,
2015 executed in favor of present respondent no.1 and 2 was
complete only when it was registered on 12.05.2015 and not
before that and the document cannot be treated to go back to the
date of 2007 because it was not a complete document at that time.
10. While distinguishing the decision of the Apex Court passed
in the matter of Har Narain (D) By Lrs vs Mam Chand (D) By
Lrs. & Ors reported in AIR 1995 SC 73 which was relied upon
by learned Additional Commissioner it was submitted that therein
the lease-deed in regard to an agricultural land was executed and
later on registered and the point considered in that context was
that the said document is not required to be registered because
Section 117 of the Transfer of Property Act exempts such
document from registration and in that context the ratio was laid
down by the Apex Court which was not applicable to the present
case.
11. Further controverting another decision which was relied
upon by the Additional Commissioner in the matter of Nagar
Palika Sheopur vs. Yasin Mohammad reported in 1982 RN 218
passed by Single Bench of this Court, it was contended that it was
also not a case of sale-deed, thus, the Commissioner committed
jurisdictional as well as legal error on the face of the record in
giving the preference to the sale-deed executed in favor of
respondent no.1 to the sale-deed executed in favor of the present
petitioner which was registered at earlier point of time. On the
basis of the aforesaid arguments it was submitted that the present
petition be allowed and the impugned order dated 04.10.2022
passed by the Additional Commissioner be set aside.
12. On the other hand, learned counsel for the respondent while
placing reliance in the matters of Thakur Kishan Singh (Dead)
vs. Arvind Kumar reported in AIR 1995 SC 73, in the matter of
Gurubax Singh vs. Kartar Singh and Ors reported in AIR 2002
SC 959, in the matter of Principal Secretary, Government of
Karnataka vs. Ragini Narayana reported in AIR 2016 SC 4545
and in the matter of Sanjay Bhargava @ Raju Bhargava vs.
Munni Devi reported in 2019 (4) MPLJ 84 had argued before
this Court that no illegality has been committed by the Additional
Commissioner in setting aside the orders passed by SDO as well
as Tehsildar as both the authorities have not construed the
provisions of Section 47 of the Registration Act in its right
perspective and had given preference to the sale-deed dated
28.01.2008 registered on 19.02.2008 to the sale-deed executed in
favor of respondents dated 09.07.2007 though registered on
12.05.2015, as the law in regard to the time from which the
registered document shall operate has been settled by the Apex
Court in the aforesaid judgments and in view of the provisions of
Section 47 of the Registration Act it is well settled that the
document on subsequent registration will take effect from the time
when it was executed and not from the time of its registration.
13. It was further argued that the Apex Court has even went to
the extent that where two documents are executed on the same
day, the time of their execution would determine the priority
irrespective of the time of their registration and the one which was
executed earlier in time will prevail over the other executed
subsequently. On the basis of the aforesaid argument, it was
submitted that the present petition has no sum and substance and
therefore, it deserves to be dismissed.
14. Heard the counsels for the parties and perused the record.
15. For analyzing the aforesaid controversy, this Court deems it
appropriate to first go through the provisions of Section 47 of the
Registration Act which reads as under:-
"47. Time from which registered document
operates.
A registered document shall operate from the time
from which it would have commenced to operate
if no registration thereof had been required or
made, and not from the time of its registration ."
16. Herein case, admittedly, the sale-deed which was executed
in favor of present respondents no.1 and 2 on 09.07.2007 and the
sale-deed which was executed in favor of the present petitioner
was on 28.01.2008 though it was registered on 19.02.2008 and the
sale-deed executed in favor of the respondent no.1 and 2 was
registered on 12.05.2015. The delay in registration of the sale-
deed executed in favor of respondents no.1 and 2 was attributed to
deficiency of payment of stamp duty which after compounding
was made good and, thereafter, the said document was registered.
In light of the judgments passed by the Apex Court in the matter
of Thakur Kishan Singh (supra), Gurubax Singh (supra),
Principal Secretary, Government of Karnataka (supra) and of
Coordinate Bench of this Court in the matter of Sanjay Bhargava
@ Raju Bhargava (supra) and in wake of the provisions of
Section 47 of the Registration Act, it is clear that the registered
document shall operate from the date from which it would have
commenced to operate, if no registration thereof had been
required and made, and not from the date of its registration.
17. Therefore, from the facts and circumstances of the case the
date of registration of the sale-deed is not material, but the date of
execution of the sale-deed is important and as, admittedly, the
sale-deed executed in favor of present respondent no.1 and 2
dated 09.07.2007 was at prior point of time, then the execution of
the sale-deed in favor of the present petitioner dated 28.01.2008,
therefore, this Court has no hesitation to hold that the order
passed by the Additional Commissioner dated 04.10.2019 cannot
be faulted with.
18. The present petition being devoid of merits is hereby
dismissed.
(Milind Ramesh Phadke)
Judge
chandni/ 23/04/2025
CHAN
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Date: 2025.04.23 18:36:46
+05'30'
