# Mohd. Maqsood Khan v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 72
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-14
- **Case number:** Writ C No. 873 of 2022
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-maqsood-khan-v-state-of-u-p-ors-48832
- **Pages:** 4

## Headnote

A. Civil Law - Registration Act, 1908 -
Sections 34 & 35(1)(c) - Registration
of document - Non-appearance of the
executor or representatives before
the registering officer within four
months
after
presentation
of
document for registration - Wife of
executor did not admit the execution
of deed - Effect - Application for
registration was rejected - Validity
challenged - Held, the representative
of the executor i.e. her wife has not
admitted the execution of the deed,
hence the provision of Section 35(1)
(c) of the Act is not applicable in this
case - Further held, a document
cannot be registered in absence of
executor
before
the
Registering
Authority
or
his
authorized
representative, assignee or any other
person as permissible under the Act,
admitting
the
execution
of
the
document. (Para 9 and 11)
Writ petition dismissed. (E-1)

## Text

72 INDIAN LAW REPORTS ALLAHABAD SERIES
delay by consolidation authorities. In Ram
Chand and Another Vs. Deputy Director
of Consolidation and Others, 1984 R.D.
258, it has been held that order of
condonation of delay raises no question of
jurisdiction so as to call for interference by
the Court in exercise of powers under
Article 226 of the Constitution of India.

8. On the point of Section 52 of the
U.P.C.H. Act, Para No.11 in the case of
Sharda Prasad Tiwari (supra) will be
relevant which is as follows:

"11. The other argument that the
consolidation operation was closed in the
village by notification under Section 52 of
the Act, on 30.4.1990 and the appeal was
filed on 13.4.2002, as such, it was not
maintainable has also no force. Section 6 of
the General Clauses Act authorizes for
filing of the appeal after repeal of the Act.
Supreme Court in Gurucharan Singh
Baldev Singh Vs. Yashwant Singh (1992)
1 SCC 428 and Glaxo Smith Kline PLC
Vs. Controller of Patents and Designs AIR
2009 SC 1147 held that pre-existing right
of appeal under the old law continues to
exist and not destroyed by necessary
implications after repeal of the law, in the
absence of contrary intention in the
repealing law. Division Benches of this
Court in Gopi Singh Vs. D.D.C. and
Others 1967 R.D. 214, Ram Bahadur Vs.
D.D.C. and Others 1974 R.D. 627, and in
Siddh Narain Vs. D.D.C. and Others 2007
(103) R.D. 627 have held that appeal and
revision etc. can be filed against the orders
passed by consolidation authorities even
after the notification under Section 52 of
the Act."

9. Considering the entire facts and
circumstances as well as the ratio of law
laid down by the Court on the point in issue
no interference is required against the
impugned orders except that since no
condition has been imposed by the
Consolidation Officer while allowing the
restoration application of respondent no.6,
as such, the impugned orders are modified
to the extent that respondent no.6 will pay
cost for allowing the restoration application
to the sum of Rs.10,000/- to the petitioner
on the date fixed before the Consolidation
Officer.

10. The writ petition is finally
disposed of with the following directions:

(i) The parties will appear before
the Consolidation Officer on 22nd August,
2022.

(ii) The respondent no. 6 will pay
cost of Rs. 10,000/- to the petitioner on the
date fixed i.e. 22.8.2022 before the
Consolidation
Officer
and
the
Consolidation Officer shall mention the
same in the order sheet.

11. Since, the case is very old, as
such,
the
Consolidation
Officer
is
directed to decide the case expeditiously
preferably within a period of six months
after affording opportunity of hearing to
the parties from the date of production
of certified copy of this order before
him.
----------
(2022)07ILR A72
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ C No. 873 of 2022

Mohd. Maqsood Khan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Mohd. Maqsood Khan Vs. State of U.P. & Ors.
73
Counsel for the Petitioner:
Ram Dheeraj, Vinod Kumar Singh, Vivek
Mishra

Counsel for the Opposite Parties:
C.S.C.

A. Civil Law - Registration Act, 1908 -
Sections 34 & 35(1)(c) - Registration
of document - Non-appearance of the
executor or representatives before
the registering officer within four
months
after
presentation
of
document for registration - Wife of
executor did not admit the execution
of deed - Effect - Application for
registration was rejected - Validity
challenged - Held, the representative
of the executor i.e. her wife has not
admitted the execution of the deed,
hence the provision of Section 35(1)
(c) of the Act is not applicable in this
case - Further held, a document
cannot be registered in absence of
executor
before
the
Registering
Authority
or
his
authorized
representative, assignee or any other
person as permissible under the Act,
admitting
the
execution
of
the
document. (Para 9 and 11)
Writ petition dismissed. (E-1)
(Delivered by Hon'ble Manish Kumar, J.)

1. In compliance of order of this
Court dated 13.04.2022, the affidavit of
service has been filed by the learned
counsel
for
the
petitioner
enclosing
therewith the notices published in two
newspapers i.e. Amar Ujala and Times of
India as well as the notice pasted on the
door of the Respondent No. 4. Despite the
notice published in the new papers, no one
has put in appearance on behalf of the
Respondent no. 4.

2. Heard learned counsel for the
parties and perused the record.

3. The present petition has been
preferred for quashing of the appellate
order
dated
15.12.2021
passed
by
Additional District
Magistrate
(F&R),
Sultanpur and the order dated 12.11.2018
passed by Sub-Registrar, Tehsil- Sadar,
District - Sultanpur refusing to register the
document namely the sale deed said to be
executed in favour of the petitioner.

4. The brief facts of the case as per
the petitioner are that on 11.07.2018 the
instrument was presented in the office of
Sub-Registrar
for
the
purpose
of
registration of the sale deed executed by
one Tufail Ahmad - Respondent No.4 in
favour of the petitioner. After the enquiry
as provided under Section 34 of the
Registration Act, 1908, when the document
was to be registered, Tufail Ahmad went
away from the office of the Sub-Registrar.
The Sub-Registrar vide its order dated
12.11.2018 had rejected the application for
registration of the instrument as time barred
with the finding that despite notice/
summon to the Tufail Ahmad, he had not
appeared. Against the said order, the
petitioner preferred an appeal before the
Additional District
Magistrate
(F&R),
District Sultanpur and in the appeal vide
order dated 15.12.2021 an order has been
passed staying the proceedings of Appeal
and file was consigned to record, feeling
aggrieved by these orders, the present writ
petition has been filed.

5. Learned counsel for the petitioner
has submitted that the registering authority
has wrongly refused to register the
instrument as the same was presented by
executor and the signature had been made
on the same in the office of Sub Registrar.
It is further submitted that after the
signature
made
and
accepting
the
consideration amount, the presence of the
74 INDIAN LAW REPORTS ALLAHABAD SERIES
seller is not required for the purpose of
registration of the documents as the
formalities had already been completed. It
is further submitted that the authorities had
not registered the instrument till the period
of limitation and after that rejected the
same as time barred. It is further submitted
that the authorities are bound to register the
document as per section 35(1)(c) of the
Registration Act, 1908. It is further
submitted that the appellate authority had
passed the order without application of
mind and, hence it is liable to be quashed.

6. On the other hand, learned State
counsel has submitted that there is no
illegality in the orders impugned as passed
by the Respondent No.2 and 3 respectively.

7. After hearing learned counsel for
the parties and going through the record
and the provisions of Registration Act,
1908, where it has been provided that no
document shall be registered under this Act,
unless
the
persons
executing
such
document, or their representatives, assigns
or agents authorized as aforesaid, appear
before the registering officer within the
time allowed for presentation.

8. The reliance placed by learned
counsel for the petitioner that his case is
squarely covered under Section 35(1)(c) of
the Registration Act, 1908 and hence the
Sub-Registrar is under obligation to register
the instrument. For convenience Section
35(1)(c) is quoted hereinbelow:

"if
the
person
executing
the
document is dead, and his representative or
assign appears before the registering officer
and admits the execution, the registering
officer shall register the document as directed
in sections 58 to 61 inclusive."

9. In the present case, it is still not
confirmed that Respondent No.4 is dead or
alive, and his representative i.e. wife
appeared and moved an application for
recall of an earlier order where she has
stated that her husband has been kidnapped
and an F.I.R. has been lodged after the
order passed by the Court. It is further
stated that she is not aware that her
husband is dead or alive. The representative
of Respondent No.4 i.e. her wife has not
admitted the execution of the deed, hence
the provision of Section 35(1) (c) of the Act
is not applicable in this case.

10. Section 34 of the Registration Act,
1908, provides that the presence of the
person, who has to execute the sale deed,
his representative or his agent is necessary
within four months from the date of
presenting the documents for the purpose
of registration For convenience, Section 34
of the Act is quoted hereinbelow;

"34. Enquiry before registration
by registering officer.?(l) Subject to the
provisions contained in this Part and in
sections 41, 43, 45, 69, 75, 77, 88 and 89,
no document shall be registered under this
Act, unless the persons executing such
document, or their representatives, assigns
or agents authorized as aforesaid, appear
before the registering officer within the
time
allowed
for
presentation
under
sections 23, 24, 25 and 26: Provided that, if
owing to urgent necessity or unavoidable
accident all such persons do not so appear,
the Registrar, in cases where the delay in
appearing does not exceed four months,
may direct that on payment of a fine not
exceeding ten times the amount of the
proper registration fee, in addition to the
fine, if any, payable under section 25, the
document
may
be
registered.
7 All. Om Prakash @ Pappu Vs. Sub Divisional Officer/ Prescribed Authority Sandila Hardoi &
 Ors.
75

(2)
Appearances
under
subsection (1) may be simultaneous or at
different times.

(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.

(4)
Any
application
for
a
direction under the proviso to sub-section
(1) may be lodged with a Sub-Registrar,
who shall forthwith forward it to the
Registrar to whom he is subordinate.

(5) Nothing in this section applies
to copies of decrees or orders."

11. It is an undisputed fact in the
present case that the orders passed by the
Sub Registrar is after the expiry of four
months after presentation of document for
registration and that the Respondent No. 4
had not appeared despite summons/notices,
hence, there is no illegality in the order
passed by the Sub-Registrar. A document
cannot be registered in absence of executor
before the Registering Authority or his
authorized representative, assignee or any
other person as permissible under the Act,
admitting the execution of the document.

12. The appellate authority has rightly
passed the order consigning the appeal to
the record.

13. The appellate authority neither
rejected the appeal nor closed the rights of
the petitioner. Later on in case the executor
is traced and may appear before the SubRegistrar or if any of its respondent in case
he is found to be dead, the petitioner may
still move any appropriate application for
registration of the instrument, if and as it
may permissible under the law.

14. As discussion made hereinabove,
there is no illegality in the orders
impugned, hence the petition is devoid of
merit and is accordingly dismissed.
----------
(2022)07ILR A75
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ C No. 4519 of 2022

Om Prakash @ Pappu ...Petitioner
Versus
Sub
Divisional
Officer/
Prescribed
Authority Sandila Hardoi & Ors.
 ...Respondents

Counsel for the Petitioner:
A.Z. Siddiqui

Counsel for the Respondents:
C.S.C., Vikrant Prakash

A. Election Law - UP Panchayat Raj Act,
1947 - Section 12-C - Civil Procedure
Code - O. XIV R. 1 an R. 2 - Issue of law,
how long need to be decided first - The
issue
of
law
as
mentioned
in
the
application of the petitioner did not
contain issues relating to the jurisdiction
of the Court or a bar to the suit created by
any law for the time being in force - Held,
the contentions raised to direct the
prescribed authority to decide the issue of
law first is not tenable in law. (Para 13)
Writ petition dismissed. (E-1)