IN THE HIGH COURT OF SINDH, KARACHI
Suit
No.1502 OF 2008
Date Order with signature of
Judge
For hearing of CMA 10391 of 2008.
Date of hearing: 1.10.2010.
Mr. Nazar Akbar, Advocate for the Plaintiff.
Mr. Qazi Majid, A.A.G.
Muhammad Ali Mazhar J, The Plaintiff has filed this Suit under Section 77 of the Registration Act, 1908 with the following prayers:-
“A. The plaintiff respectfully prays that this honorable Court may graciously be pleased to direct the defendant No.1 (Sub-Registrar, T-Division-III, Shah Faisal Town, Karachi), to immediately register the indenture of leases of plaintiffs in respect of the plots in Gulshan-e-Roomi situated in Survey Nos.67, 68 ,69, 70, 80, 81, 82, 97, 381, 382, 438, 439 and 357 situated in Deh Mehran, Survey Nos. 111 and 112 situated in Deh Safooran, Tappo Songal, Taluka, District Malir Karachi except plots showing survey Nos. 108, 109 and 110 situated in Deh Safooran, Tappo Songal, Taluka and District Malir, Karachi.
B. Any other relief/relief(s) this honorable Court may deem fit and proper under the facts and circumstances of the case.
C. Costs of the suit may also be awarded”.
The brief facts of the case are that the plaintiff is sole and exclusive owner of aforesaid Survey numbers and decided to build a Housing Scheme under the name and style of Gulshan-e-Roomi. In the year 1999, the Malir Cantonment Board was pleased to approve the lay out plan of Gulshan-e-Roomi. The plaintiff thereafter vide letter dated 05.09.1983, requested the defendant No.2 for according approval of leases in respect of the plots in the Gulshan-e-Roomi. The defendant No.2, after obtaining the proper report from the defendant No.l, recommended the Registration of leases of M/s. Humair Associates vide No.K-29/DR/83, dated 20.9.1983 and directed the defendant No.1 to proceed with the leases of the plaintiff in accordance with the law. The plaintiff total land is spreading over 156 acres and more than 2000 plots were approved as per the lay out plan of Cantonment Board, Malir and since the date of approval, nearly 1000 lease of various plots have been duly registered/executed by the defendant No.1 without any objection. It is further stated by the plaintiff that the defendant No.1, during the month of February, 2008 refused to register the indenture of lease of the plaintiff. The plaintiff, sent a legal notice dated 09.5.2008 to the defendant No.1. The defendant No.1 sent a reply in which he raised two objection, one that indenture of leases did not indicate that from which survey numbers the plots under lease is being registered in favour of the allottee and second that in Suit No.09/08, stay order was passed in relation to Survey Nos. 108, 109 and 110. It is further stated in the plaint that the plaintiff sent a reply to the defendant No.1 wherein it was categorically stated that all indentures of lease will be re-drafted in the light of the objections raised by the defendant No.1 and each lease will show the correct survey numbers in which the said plots are situated. As regards suit No.09/2008, it was categorically stated that the proposed indenture of leases shall not be in respect of any plot falling in Survey Nos. 108, 109 and 110 and therefore, there shall be no impediment in registering the document but the defendant No.1 refused to register the leases. The plaintiff on or about 02.6.2008, filed an appeal under Section 72 of the Registration Act, 1908 before the defendant No.2, which was registered as appeal No.02/2008. The defendant No.2 gave personal hearing to the counsel for the plaintiff and pointed out that no written order of refusal of registration is filed with memo of appeal. However, as soon as he was informed that the defendant No.1 is avoiding to pass any written order, the defendant No.2 directed the defendant No.1 to endorse refusal on the document and pass order. On 13.8.2008, the defendant No.1 ultimately endorsed his refusal. The plaintiff’s appeal under Section 72 of the Registration Act 1908 filed on 02.6.2008 was already pending and therefore on receiving proper endorsement of written refusal dated 13.8.2008, the plaintiff filed a statement before the defendant No.2 and placed on record the written refusal for proper adjudication of appeal. The defendant No.2, after receiving the comments from the defendant No.1 and hearing the counsel for the plaintiff dismissed the appeal, hence the plaintiff has filed this suit under section 77 of the Registration Act, 1908 for seeking directions against the defendant No.1 to register the lease documents. The defendant No.2 dismissed the appeal by order dated 10.10.2008 and supplied copy of order to the plaintiff’s counsel on 14.10.2008, therefore the suit is within time. The plaintiff’s case is that the order of refusal to register the documents by the defendant No.1 which was upheld by the defendant No.2 is contrary to facts and law and liable to be corrected by this court by issuing proper directions in terms of Section 77 of the Registration Act.
The defendant No.1, filed his written statement in which it has been stated that the plaintiff presented document for registration which was refused by the defendant No.1 on the ground that the document was wrong and illegal. The plaintiff was annoyed and sent legal notice, which was properly replied. In fact, the plaintiff was categorically told that till disposal of suit No. 09 of 2008, the defendant No.1 is constrained to admit any lease of the project for registration. It is further submitted that the plaintiff presented an indenture of lease deed in respect of plot No.87 F, admeasuring about 120 sq.yards made out from Survey No.111 situated at housing scheme namely Gulshan-e-Roomi, Deh Safooran, Taluka Malir and the same was refused by the defendant No.1 on cogent reasons.
The learned counsel for the plaintiff argued that the reasons assigned by the defendant No.1 are contrary to the section 21 and other provisions of Registration Act (hereinafter referred to as the Act). After approval of lease by the defendant No.2 and issuance of master plan by the Malir Cantonment Board, the defendant No.1 has no right or authority to refuse the registration of indenture of leases presented by the plaintiff in favour of various allottees. He further argued that the whole action of defendant No.1 is based on mala fide intention and while dismissing the appeal by the defendant No.2, he has also not considered the legality of the refusal order passed by the defendant No.1. The lease document presented for registration clearly shows the proper plot number, dimension, measurement and survey number with all other necessary identification and location of plot in question but the defendant No.1 without applying its mind, refused to register the lease documents and similarly the defendant No.2 has also not appreciated the relevant provision of law and simply dismissed the appeal on the ground that the description of subject plot does not fulfill the requirement of section 21 (i) of the Act and there is nothing on record to show that subject plot does not fall in survey No.108, 109 and 110 and dismissed the appeal without examining the contents of the lease document. The learned counsel further argued that the plaintiff himself mentioned in the prayer clause that no lease is required to be executed for the time being for survey No.108, 109 and 110 which are at present under litigation. He has also pointed out the lease document attached with the plaint pertains to survey No.111, Deh Safooran, tapo Songal. The learned counsel further argued that the remedy provided under Section 77 is equivalent to a second appeal against the refusal order of Registrar under Section 72 or section 76 of the Act, therefore, the entire matter may be disposed of as a short cause on the basis of available documents as there is no need to record any evidence and this Court has to only see whether the order passed by the defendant No. 1 under Section 71 of the Act and the order passed by the defendant No. 2 under Section 72 are in accordance with the law or not. In support of his arguments, the learned counsel has relied upon the following case law:-
1. AIR 1963 Madras 1 (P.A.J. Seetha Rama Raju vs. Lala Gopi Krishna Gokul Doss). This matter pertains to section 21 & 22 of the Act in which it was held that property dealt with must be capable of ascertainment on material available before the Registrar. The matter has to be decided only on the terms of section 21 which does not provide for any enquiry by the Registrar to ascertain what the property dealt with is. In order that a document dealing with immovable property would be registered, the property dealt with should be capable of ascertainment on the materials available before the Registrar. Rule 17 framed under the provisions of the Act is in accordance with this principle when it permits registration of a document describing the property by reference to another registered document; it would be easy to find out from the registry itself the description of the property from other document.
2. AIR 1961 Madras 251 (Raja Gopala Ayyar vs. Avadai Velar). In this case also, Madras High Court discussed sections 21 & 22 of the Act and held that Section 22 of the Act shows that the provisions of Section 21 (2) and (3) are only directory and if the description sufficient to identify the immovable property conveyed is contained in a sale deed, section 21 does not appear to warrant a refusal of its registration on the ground that the description of the property in the document, though practicable was not by reference to a Government map or survey.
Learned counsel concluded his arguments that the order passed by the defendant No. 1 and 2 both are liable to be set aside and directions may be issued to the defendant No.1 to register the indenture of leases presented by the plaintiff for registration.
In rebuttal, the learned Assistant Advocate General, Sindh argued that defendants Nos. 1 & 2 both have rightly passed the orders for the refusal of registration as the description of property mentioned in the indenture of lease was insufficient to identify the land which is required under section 71 of the Registration Act. The land in question comprises of different survey numbers purchased at different occasions and from different parties. There is no demarcation of land by the Revenue Department. He admits that the Malir Cantonment Board has approved the layout plan but according to him, it was only for town planning purpose and layout plan does not bear signature of any revenue officer. He further argued that amalgamation and sub-division of land is the exclusive function of the revenue department but the said department was not taken on board before announcing housing scheme. Learned AAG further pointed out that the Survey No. 108, 109 and 110, Deh Safooran are subject matter of Civil Appeal No. 25-K/09 filed by the plaintiff against M/s. Sunlay Developers Private Limited in the honorable Supreme Court in which, the District Registrar, Karachi, Mukhtiarkar, District Malir and Province of Sindh have been arrayed, while same survey No. 109, Deh Safooran and Survey No. 69, 82 and 97 Deh Mehran are subject matter of J.M 20/1995 which is pending adjudication in this Court. Therefore, during the pendency of Civil Appeal in the honorable Supreme Court and application under Section 12 (2), CPC pending in this Court, the plaintiff has no right and authority to ask the decree for the registration of leases in relation to the aforesaid survey numbers. The learned AAG further pointed out a letter dated 25.10.1997, which is a corrigendum issued by Member (RS&EP), Board of Revenue Sindh, wherein, it was directed that to affirm the ownership of the land, a true copy of village form VII and Sale Certificate duly countersigned by Taluka Mukhtiarkar should be placed on record by the sub-registrar before registering a transaction. In the same sequence, he also pointed the letter dated 21.05.2010, in which, the Mukhtiarkar (Revenue), Malir Town, City District Government, Karachi, informed the sub-registrar, Malir, Shah Faisal, Gaddap, Karachi that do not execute the leases of the concerned Housing Scheme without NOC for sale and Form-II as per instructions of the Revenue Department, circulated under letter No. SECY(RS& EP/BOR/97-312, dated 25-10-1997, therefore, the learned AAG is of the view that no lease can be registered during the pendency of aforesaid litigation and without fulfilling the other requirements as mentioned in the aforesaid corrigendum and letter of Mukhtiarkar (Revenue) which was issued after filing of this suit but in this letter the Mukhtiarkar (Revenue) has simply reiterated the earlier circular issued in this context in the year 1997. In addition thereto, he has also invited my attention to a letter issued by Assistant Inspector General of Registration, Sindh, Hyderabad to the Headquarters Sub-Registrar on 23-08-2006, whereby, minutes of meeting were conveyed and according to decision at item No. V, it was resolved that all sale certificates issued by Mukhtiarkar would be signed under his name along with seal of his office and caution was made to be vigilant and not to accept any sale certificate which is against the new instructions of the Board of Revenue, Sindh.
I have seen the refusal order passed by the defendant No. 1 under section 71 of the Act, in which the main objection is that indenture of lease deed presented for registration does not indicate that in which survey number, the plot under lease falls as per layout plan passed by the Malir Cantonment Board, Karachi. It is further stated in the order that description of subject plot under lease does not fulfill the requirements of section 21 of the Act as there is nothing on record to show that this plot does not fall within the pending suit survey numbers or the same falls within the limits of survey No.111. The defendant No.2 has also not considered the legal position and simply reflected the details of pending litigation and observed that the description of subject plot does not fulfill the requirements of section 21 of the Act and there is nothing on record to show that the subject plot does not fall in survey Nos. 108, 109 and 110.
In my view, the remedy provided under section 77 of the Act is just like a second appeal in which the proprietary of refusal order passed under Section 72 or section 76 of the Act may be examined. This section clearly provides that when the Registrar refuses to register a document under Section 72 or 76, a suit can be filed within 30 days of passing of the refusal order. Since, entire relevant material is already available on record and the learned counsel for the plaintiff himself insisted and agreed that let this matter be decided on available documents, the similar statement of the learned counsel is also reflecting in the order dated 14.11.2008 on which date, he informed the court that no evidence needs to be recorded and matter can be decided on the basis of documents filed by the parties, therefore, instead of posting the matter for settlement of issues or leading evidence, it would be appropriate to treat this matter short cause as this court has to only see whether the order of refusal was passed rightly with proper application of mind or it is simply based on refusal without any cogent justification. In order to resolve controversy it would be expedient to reproduce Sections 21 & 22 of the Registration Act:-
“21. Description of property and maps or plans: (1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.
(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.
(3) Other houses and lands shall be described by their name, if any, and as being in the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also whenever it is practicable, by reference to a Government map or survey.
(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or, plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.
22. Description of houses and land by reference to Government maps or surveys: (1) Where it is, in the opinion of the Provincial Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the Provincial Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of Sec. 21, be so described.
(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions of section 21, sub-section (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property”.
Under Section 71 of the Act read with Rule 149 of the Sindh Registration Rules, 1940, the Registrar may refuse the registration on different grounds, inter alia, that the description of property is insufficient to identify it or does not contain information required by Rule 30. I have examined the indenture of lease available at page 111 of the Court file, which clearly shows not only the number of plot, its measurement, survey number and schedule of property, further, a site plan of the plot along with scale and survey number is also attached. So in my view, the objection of the defendant No.1 that the requirement of Section 21 of the Registration Act does not fulfill, is unjustified and irrational. It is clearly mentioned under Section 21 of the Act, that no non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same and proper mechanism and guidelines are also provided under sub-section 2 & 3 for showing the proper description of the property. The words “sufficient to identify the same” means sufficient for carrying out the provisions of the Act. The object of this section is only to secure easy identification of property. The registering officer is bound to accept in a normal case the description of property given by the party. The question whether the property has been sufficiently described or not has to be decided only in terms of section 21 which does not provide for any enquiry by the registrar to ascertain what the property dealt with is. So in all fairness, it can be held that the lease document attached with the plaint is showing the proper description of the property in accordance with section 21 of the Act and the defendant NO.1 and defendant No.2 both have failed to consider the lease document properly and passed the orders in slipshod manner which orders are not sustainable.
Now the next question which needs the attention of this court is a statement filed in court on 20.05.2010 by the learned AAG, Qazi Majid Ali, in which he has clearly stated that the survey No. 108, 109 and 110 are subject matter of an appeal pending in the honorable Supreme Court while J.M No.29/1995, (an application under Section 12 (2), CPC), is also pending in this Court for many other survey numbers of different parties including the Survey No. 69, 82 and 97, Deh Mehran and Survey No. 109, Deh Safooran. Along with the statement, he has also filed a copy of J.M 20/1995 moved by Government of Sindh through learned Advocate General Sindh in suit No. 447/92. In 12 (2) CP.C application, at page 17, the survey No. 109, 82, 97 & 69 are mentioned against the names of Zafar Maniar and Moin Maniar. So in my view, the defendant No. 1 is fully justified to reject the registration of leases in respect of survey No. 69, 82 and 97 of Deh Mehran, Survey No. 108, 109 & 110, Deh Safooran as the litigation in relation to these survey number is sub judice. However, the corrigendum dated 25-10-1997, whereby, it was required that in order to affirm the ownership of the land, a copy of village Form-VII and sale certificate duly countersigned by the Taluka Mukhtiarkar should be placed on record by the Sub-Registrars before registering a transaction seems to be logical. The plaintiff has not shown anything in this regard whether this requirement was fulfilled or not and it is also not clear that at the time of presentation of the document, whether true copy of village Form-VII and sale certificate was placed on record before the Sub Registrar or not. Besides above, there is another letter which is available on record issued by Mukhtiarkar (Revenue) Malir Town, City District Government, Karachi, dated 21.05.2010, which was issued to the Sub-Registrar, Malir, Shah Faisal and Gaddap in which names of at least 47 Societies are mentioned including Gulshan-e-Roomi, the project of the plaintiff and in this letter also, clear instructions have been issued to the Sub- Registrar that do not execute the leases without NOC for sale and Form-II of the concerned Housing Scheme as per instructions of Revenue Department circulated on 25.10.1997. Though the circular was issued in the month of October, 2010 much after the institution of the present suit but fact remains that in this letter, the names of 47 Societies are mentioned and it cannot be said that this was issued with mala fide intention to frustrate the case of plaintiff but it is quite clear that it has been issued to save heavy financial loss to the Govt. exchequer and in my view, a larger public interest is also involved as in case of execution of lease by the Sub-Registrar concerned without fulfilling the legal requirements, the ultimate sufferer would be the allottee/lessee as after execution of lease by the builder/project owner either in lawful or unlawful manner, it is the allottee who has to face repercussions in case the lease is cancelled or found unlawful at any subsequent stage.
As a result of above discussion, the suit is decreed in the following terms with no order as to cost:-
a) The defendant No. 1 shall register the lease deeds of the plaintiff except the survey Nos. 108, 109 & 110, Deh Safooran and survey No. 69, 82 & 97, Deh Mehran.
b) The execution/registration of lease of survey Nos. 108, 109 & 110, Deh Safooran and survey No. 69, 82 & 97, Deh Mehran will be kept in abeyance till the final conclusion of entire pending litigation in this Court and honorable Supreme Court.
c) Before execution of lease deeds in favour of allottees, the plaintiff is directed to comply with the requirements mentioned in corrigendum No.SECY(RS&EP)/BOR/97-312, dated 25-10-1997 issued by Secretary (RS&EP) Board of Revenue, Sindh and the requirements mentioned in letter No.MUKH/REV/M.T/K/311, dated 21.05.2010 issued by Mukhtiarkar (Revenue), Malir Town, City District Govt. Karachi.
d) In case the plaintiff fulfills the above requirements in accordance with law, the defendant No. 1 shall register the lease deeds accordingly.
Karachi: Dated. 24.12.2010 Judge