Dera Sahi Samadan Patiala vs The State Of Bihar
2023 Latest Caselaw 545 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Letters Patent Appeal No.638 of 2022
                                      In
                Civil Writ Jurisdiction Case No.16299 of 2021
     ======================================================

Dera Sahi Samadan Patiala a Dera of Udasin Sect of Baba Sri Chandra Jee through Mahanth Deepinder Das, Gender-Male, aged about 38 Years, Chela Mahanth Jagat Ram at New Dal Dalian Patiala, Punjab Being the Superior of Dera of Udasin Sangat, Mohalla- Madhubani, Police Station-K. Hat in the District of Purnea.

... ... Appellant/s Versus

1. The State of Bihar through the Principal Secretary, Prohibition, Excise and Registration Department, Government of Bihar, Patna.

2. The Inspector General of Registration, Vikas Bhawan, Bailey Road, Patna.

3. The District Magistrate-Cum-Collector, Katihar.

4. The Sub-Registrar, Katihar in the District of Katihar.

5. Madan Kumar Das Son of Late Mahanth Pancham Das Mahanth of Ati Prachin Udasin Bari Sangat, Resident of Mohalla-Madhubani, P.S.-K. Hat in the District of Purnea (Bihar).

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. J. S. Arora, Sr. Adv.

Mr. Sunil Kumar, Adv.

For the Respondent/s : Mr. Anisul Haque, AC to AAG-5 For the Respondent No.5 : Mr. Raju Giri, Adv.

Mr. Santosh Kumar Mishra, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 01-02-2023 Re.: I.A. No. 1 of 2022

The present interlocutory application has been

filed for condoning the delay of 76 days in preferring the

present appeal.

For the reasons stated in this application, the

prayer for condoning the delay is allowed. Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

The I.A. No. 1 of 2022 stands disposed of.

L.P.A. No. 638 of 2022

Heard Mr. J.S. Arora, the learned Senior

Advocate for the appellant and Mr. Raju Giri for

Respondent No.5.

The challenge in this appeal is to the judgment

dated 28.07.2022 passed by a learned Single Judge of

this Court in CWJC No. 16299 of 2021 whereby the

Registering Authority has been directed to register the

sale deed offered by the Respondent No. 5 for

registration which was hitherto being denied without any

reason.

The learned Single Judge, after having referred

to the provisions contained in the Registration Act, 1908

as also the judgment of a Division Bench of this Court in

Bihar Deed Writers Association & Ors. Vs. State of

Bihar & Ors. reported in AIR 1989 Patna 144, found

that the Registering Authority was not required to

question the title of the vendor while registering the sale Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

deed. This proposition is based on the theory of caveat-

emptor and the principles of the Transfer of Property

Act, 1908 which requires a purchaser/vendee to know

what he is purchasing. If the vendor does not have a

right title, he does not pass off any right title to the

vendee. The Registering Authority does not have any

wherewithals and the mechanism to test, verify and

certify the title of the vendor.

Based on this ground, the learned Single Judge

has directed the Registering Authority to register the

document.

In the present case, the respondent has

executed a sale deed in favor of a third party/vendee

who is not before us. The recital in the sale-deed makes

it obvious that the sale was being effected under the

certification of the main body of the Sangat viz. Dera

Sahi Samadan Patiala (appellant).

Mr. Arora, while challenging the aforenoted

Single Judge's order, has drawn the attention of this Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

Court to the provisions contained in Sections 32 and 33

of the Registration Act, 1908, which is being extracted

below for the sake of completeness:

"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.

[32A. Compulsory affixing of photograph, etc.--Every person presenting any document at the proper registration office under section 32 shall affix his passport size photograph and fingerprints to the document:

Provided that where such document relates to the transfer of ownership of Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

immovable property, the passport size photograph and fingerprints of each buyer and seller of such property mentioned in the document shall also be affixed to the document.]

33. Power-of-attorney recognisable for purposes of section 32.--(1) For the purposes of section 32, the following powers-of- attorney shall alone be recognized, namely:--

(a) if the principal at the time of executing the power-of-attorney resides in any part of [India] in which this Act is for the time being in force, a power-of-

attorney executed before and authenticated by the Registrar or Sub- Registrar within whose district or sub- district the principal resides;

(b) if the principal at the time aforesaid [resides in any part of India in which this Act is not in force], a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in [India], a power-of-

attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative [***] of the Central Government:

Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this section, namely:--

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.

(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of- attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid. (3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub- Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.

(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf."

Based on this requirement under the law, Mr.

Arora submits that when the recital of the sale deed

itself discloses that the sale is being made at the

instance of the main body/principal body viz. Dera Sahi

Samadan Patiala, there is a compulsory requirement of

presenting before the Registering Authority, the power

of attorney or assignment or certification that such

permission for sale has been given by the principal body,

to execute the sale deed.

In the present case, Mr. Arora submits that the

learned Single Judge did not consider this aspect of the

matter that at the time when the sale deed was

presented before the Registering Authority, no such

certification as required under Sections 32 and 33 of the

Act was brought forward. Thus the order passed by the

learned Single Judge suffers from the vice of non-

application of a material fact before issuing mandamus Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

to the Registering Authority to register the document

offered by the Respondent No.5.

The appellant claims to be the representative of

the main body viz. Dera Sahi Samadan Patiala.

The aforenoted contention of Mr. Arora is

attempted to be expostulated by Respondent No.5, who

was the writ petitioner and who claims to be the

Authority to deal with all matters relating to the

Mahanthi (महहथथ) under the tutelage of Dera Sahi

Samadan Patiala. In support of his contention, it has

been urged that a Title Suit was filed by the Respondent

No.5 and others, claiming himself to be the Mahanth of

Sri Sri 108 Ati Prachin Udasin Sangat. In the Title Suit,

the second plaintiff was the Ati Prachin Udasin Sangat

whose affairs were being managed by the

respondent/Mahanth Madan Kumar Das. The suit was

actually filed for declaration that the Mahanth has the

right, title and interest over the suit property and that

private defendants had no manner of right, title or Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

interest in the said suit property. There was a further

prayer in the Title Suit for a declaration that the land

never vested in the State of Bihar.

The consequent relief prayed for in the suit thus

was for a declaration of the entry in the Municipal

Survey Record of Rights in the name of State of Bihar to

be illegal and not tenable. Lastly, it was prayed in the

suit that the defendant/second party be evicted from the

suit land as they are complete trespassers.

The Respondent No.5, as the plaintiff, lost

before the first Court, against which a First Appeal was

filed before the High Court vide First Appeal No. 270 of

1996. Several issues were argued especially with respect

to the claim of the Respondent No.5 to be the Mahanth

of the Sangat in the State of Bihar which had only a

commensal relationship with Dera Sahi Samadan Patiala.

After going through the records, the deposition

of the witnesses and other documents, the First

Appellate Court allowed the prayer made by the Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

Respondent No.5 herein and the judgment and decree

passed by the Trial Court was set aside. The suit was

decreed "in toto" with a cost of Rs. 10,000/- to be paid

by the original defendants, jointly or severally, to the

plaintiff appellants/respondents herein.

At this point, Mr. Arora has drawn the attention

of this Court to an order passed in Review (Civil Review

No. 29 of 2015, arising out of First Appeal No. 270 of

1996) referred to above, wherein the Review Court,

which was the First Appellate Court, found that there

was an error apparent on face of the record to the

extent that the plaintiff no.1 (Respondent No.5 herein)

claimed himself to be the Mahanth of plaintiff no. 2/the

principal body and the real owner of the suit property is

plaintiff no. 2 but, while allowing the First Appeal, after

reversing the judgment of the Trial Court, the Appellate

Court had decreed the suit "in toto" without specifying as

to which plaintiff I or 2 had the title and therefore the

requirement to review the judgment in the First Appeal. Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

The Review Court was called upon to examine

paragraphs 1 and 6 of the plaint as also paragraphs 3,

23 and 35 of the judgment under review to declare

categorically that plaintiff no. 2 is the owner and plaintiff

no. 1/Respondent No.5 is the Mahanth only. The Review

Court found that in the plaint itself, plaintiff no. 2 was

described as Sri Sri 108 Ati Prachin Udasin Sangat and

at paragraph no.2 of the plaint, it was specifically

mentioned that Dera Sahi Samadan Patiala (appellant) is

the superior Akhara and Math belongs to the said sect.

The Review petition, let it be noted, was filed by this

superior Akhara. The Review Court, finding that the

revisionist was the superior Akhara who was impleaded

as plaintiff no. 2, which fact was admitted by plaintiff no.

1/Respondent No.5 herein, the first appellate order was

required to and was modified as hereunder:

"38. In the result, this First Appeal is allowed. The impugned judgment and decree passed by the trial court are hereby set aside. The plaintiffs-appellants' Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

suit is decreed with cost of Rs.10,000/- (rupees ten thousand) to be paid by the defendants-respondents jointly or severally to the plaintiffs appellants. The title of the plaintiff no.2 over the suit property is declared and it is held that the plaintiff no.1 is the Mahanth of plaintiff no.2. The cost must be paid within two months from today failing which the appellants are at liberty to realize the same from the defendants jointly or severally through the process of the Court."

Based on this, Mr. Arora submits that there can

be no manner of doubt, in view of the

clarification/modification of the first appellate order in

Review that the appellant herein represents the main

Akhara and, therefore, without authenticated/certified

power of attorney from the main Akhara, the

Respondent No.5 would not be entitled to get the sale-

deed registered.

Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

Mr. Raju Giri, learned Advocate, however

contends that this is a specious argument which cannot

withstand the scrutiny of law. Neither in the plaint nor in

the First Appeal was Deepinder Das, the appellant, who

claims himself to be the Mahanth of the principal body,

was a party to the proceeding. He further submits that it

could be argued that the plaint was filed by him and the

first appeal also by him as the Title Suit failed.

Nonetheless, if review petition was filed by Deepinder

Das/the appellant, he was required to demonstrate

before the Review Court that he represented the

principal body at Patiala. This has not been clarified in

the review order. It has further been submitted that

though it was orally pointed out by him at the time when

the order in review was being passed but, the same does

not find mention in the order. However, Mr. Giri props

up his supposition on a further ground that against the

order passed in review, which otherwise would have

inured completely in favour of the appellant/Deepinder Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

Das, he, inscrutably, chose to challenge the aforenoted

order before the Supreme Court in SLP which ultimately

was withdrawn and not prosecuted.

Mr. Arora, however, submits that there were

other issues which needed to be clarified in the SLP. But,

merely because the Special Leave Petition was not

pursued and was ultimately withdrawn, it would not take

away the right of the appellant herein to claim himself

the agent/Mahanth of the principal body.

After having heard the learned counsel for the

parties and having forayed into the thickets of facts, we

have found that none of the parties before this Court i.e.

neither the appellant nor the defendant have been able

to conclusively prove as to the existence of a main body

at Patiala or whether the Bihar chapter is so inextricably

linked with the main Akhara that any certification for

disposal of property is required for getting the sale-deed

registered. In all the litigation that has been referred to

before us, the dispute was between the trespassers or Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

private persons, who were in occupation of the property

or were making attempts to appropriate such property

and thereby expropriate the Mahanth (Respondent

No.5).

The issue with respect to the Mahanthi at Bihar

being the independent body but, only commensally

connected with the principal body at Patiala, was never

decided.

Thus the basic proposition of law as postulated

by the learned Single Judge that a Registering Authority

is not required to get into the question of title of the

vendor, cannot be interfered with.

However the order of the learned Single Judge

is required to be modified to the extent that in case the

sale of the property, in question, is being effected under

the permission and authentication of a Body which is

different from the vendor, such document reflecting such

certification like power of attorney etc. is also required to

be brought along with the sale deed/the document of Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

conveyance, for the purposes of registration so that the

provisions contained in Sections 32 and 33 of the

Registration Act is not rendered meaningless or otiose in

case the sale is only under the permission of the

principal owner.

We are afraid, this might entail a discussion

with respect to the principal Mahanthi, before the

Registering Authority, which he would be absolutely

incompetent to decide, which ultimately would have to

be decided by a competent Civil Court.

Thus, we find that the issue with respect to the

identification of the principal Mahanthi and its

relationship of the Bihar chapter has to be decided in a

separate proceeding, which is a collateral issue, and

therefore it cannot be the subject matter of this appeal.

Thus, without going into the aforenoted

questions, we modify the order of the learned Single

Judge to the extent that we have indicated above, viz

that if the sale-deed or any document sought to be Patna High Court L.P.A No.638 of 2022 dt.01-02-2023

registered reflects that the sale is with the permission of

some authority, the provisions contained in Sections 32

and 33 of the Registration Act, 1908, would be required

to be followed.

We clarify that we have not passed any order

which would take away the concluded right of the parties

which was decided in the First Appeal or before the

Supreme Court.

The appeal stands disposed of accordingly.

(Ashutosh Kumar, J)

(Satyavrat Verma, J) Rishi2/rishi-

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Uploading Date          06.02.2023
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