Orissa High Court
Rajendranath Mookerjee & Others vs State Of Odisha And Others on 7 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.30425 of 2021
(Through hybrid mode)
Rajendranath Mookerjee & others .... Petitioners
Mr. K.K.Mishra, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr.Y.S.P. Babu, Addl. Govt. Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
07.01.2022
Order
No.
02. 1. Mr. Mishra, learned advocate appears on behalf of
petitioners. He submits, his clients are true owners of the land.
Opposite parties nos.5 to 10 have fraudulently dealt with the
property by causing registration of a sale deed dated 2nd
September, 2021, in respect thereof. He submits, his clients
presented a cancellation deed for registration, for cancelling
said sale deed dated 2nd September, 2021. He relies on Circular
dated 23rd May, 2011 issued by Inspector General of
Registration (IGR), Odisha. In the Circular there is extract of
question and answer as in judgment of Full Bench of Andhra
Pradesh High Court in Yanala Malleshwari v. Smt.
Ananthula Sayamma, reported in AIR 2007 AP 57. Pursuant
thereto, direction issued as in paragraph 3 of the Circular,
quoted below.
// 2 //
"3. In view of the aforesaid principle of law
decided by the Andhra Pradesh High Court
analyzing various Supreme Court judgments there is
no bar for the registering authority to exercise the
inherent power of registering a cancellation deed by
following the principles of natural justice. At the
same time the registering authority may also
commence prosecution against the person who has
committed the fraud u/s.83 of the Registration Act,
1908. Thus the Registering Officer has power to
accept and register a cancellation deed cancelling
the earlier sale deed. But this power has to be
exercised very carefully on appropriate cases. It is
made clear that the Registering Officer shall not
suomoto cancel the deed but can register a
cancellation deed presented by the true owner but
should suomoto commence prosecution."
2. Mr. Babu, learned advocate, Addl. Govt. Advocate
appears on behalf of opposite parties 2, 3 and 4. Records show
that opposite parties 5 to 10 have been served. They go
unrepresented. Mr. Mishra, submits, that they are the private
opposite parties, who have practised fraud and alienated his
clients' property.
3. Mr. Babu submits, counter has been filed. Paragraph-4
in the counter is reproduced below.
"4. That, in reply to the averments made in
Para-1 of the writ petition, it is humbly submitted
that, a Sale deed was presented by Sri Hansraj K.
Rathor and others on dated 2.9.21 bearing Id
No.1482105042 which was registered by the District
Sub Registrar, Puri on dated 3.9.21.
Subsequently on dated 17.9.21, an objection
petition was being received from Sri Anoop Kumar
Dey for cancellation of this sale deed executed on
dated 3.9.21 as per letter No.3700/IGR, dated
// 3 //
23.05.2011 issued by IGR, Odisha and Govt.
Notification dated 18.12.2012.
It is made clear that the Registering officer
shall not suomoto cancel the earlier registered sale
deed, but can register a cancellation deed presented
by the true owner, but should suomoto commence
prosecution against the erring person u/s-83 of the
Registration Act-1908 pursuant to the principle of
law decided by the Andhra Pradesh High Court in
the case of Yanala Malleshwari-Vrs-Smt Ananthuk
Sayamma reported in AIR 2007 AP-57.
On verification of objection petition of Sri
Anoop Kumar Dey this registered sale deed is not a
case fraud one committed by the true owner Sri
Hansraj K. Rathor and others who are entitled to
transfer the property basing on Record of Rights
prepared by settlement authority, Puri. Along with a
long period of Encumbrance Certificate from 1952
to March 2021.
The copies of registered sale deed ld.
No.1482105042, objection petition date-17.09.21,
letter No.3700/IGR are annexed herewith as
Annexure-A/2, B/2, C/2 respectively."
4. It appears constituted attorney of petitioners has filed
the petition. It is the same person who presented cancellation
deed before the registering authority. The registering authority
has given basis of registration of original sale deed dated 2nd
September 2021. Said authority has clearly stated that on
verification of objection petition of the constituted attorney, the
registered sale deed is not a case of fraud committed by true
owner Hansraj K. Rathor and others. Record of Rights prepared
by settlement authority, Puri and Encumbrance Certificate have
been relied upon.
// 4 //
5. The writ petition raises disputed questions of fact. As
such it is dismissed on the ground of maintainability.
6. Petitioners are at liberty to approach the civil Court
with their grievance and claims. They can pray for interim
protection, if they are able to satisfy said Court they are entitled
to it.
7. The writ petition is dismissed.
(Arindam Sinha)
Judge
RKS
