In Narasamma v. Venkataratnam 1965 A.A.P. 12, the High Court of Andhra Pradesh held that the opening words of Section 11 required that the issue as to resjudicata should be tried at the earlier stage of the suit and not at the end along with the rest of the issues. The question of resjudicata is a mixed question of law and fact and can be allowed to be raised at later stage if it does not involve a fresh investigation of facts. Where the defendants omit to plead and prove resjudicata, and the Court investigates and decides matters already concluded between the parties without knowing about such a decision, the decision is not void, for want of jurisdiction. Plea of resjudicata is one which might be, and ought to be, raised as a defence and established, in order to operate as a bar in the exercise of jurisdiction to try and dispose of the matter subsequently. Otherwise, later decision will prevail and the plea of resjudicata itself will be barred by constructive resjudicata and the later decision (though overlooking the bar of resjudicata alone), will prevail.
Jammu High Court in the case of Anil Khajuria vs Shri Avinash Chander 2005 (2) JKJ 501 Plea of resjudicata does not involve pure question of fact but it involves mixed question of fact and law, and consequently the factual foundation necessary for raising the plea of law must have been laid in the pleadings and in the issues. Consequently, a party cannot be allowed to raise the plea of resjudicata for the first time in execution proceedings with regard to its maintainability on the basis that the decree is void and inexecutable passed in the suit which is barred by principle of resjudicata when the party has not raised this plea earlier. In that event by application of principle of constructive resjudicata the judgment debtors would be declined to raise such a plea in the execution proceedings.
Prithvichand Ramchand Sablok V. S.Y. Shinde, AIR 1993 SC 1929. It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the court's imprimaturs is affixed to give it the sanctity of an executable court order.The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. …….. If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question. In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata. …………… The character of the con-sent -decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it. ………….. If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature. But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character. Justice A.M. Ahmadi (as His Lordship then was) speaking for the Apex Court, was dealing with the consent decree, where the tenants were required to give the possession to the landlord by 10th October, 1970. By Clause-3 of the consent decree, a specific concession was given to the tenant to pay over the entire amount of arrears of rent, future mesne profits, electricity charges, water charges, the rent of the godown and the expenses of the suit by 10th October, 1970 and in such an eventuality it was agreed that the plaintiff will not execute the decree for possession. The trial Court passed a decree in terms of the compromise. The arrears so calculated worked out to Rs. 3,353.58 ps. as on 10th October, 1970. The tenant, however, paid a sum of Rs. 2,040/- only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. In execution proceedings tenant raised objection as regards executability of the decree. The Executing Court rejected the objections raised by the tenant and ordered issuance of warrant for possession. The appeal preferred by the tenant came to be allowed. The order of the Executing Court was set aside and the prayer for eviction was dismissed. The decree-holder moved the High Court under Article 227 of the Constitution. The Bombay High Court set aside the order of the appellate Court and remitted the matter to the appellate Court with direction to decide the character of the compromise terms on the basis of which eviction was sought. The appellate Court reconsidered the matter and once again allowed the appeal. Against the said order, the decree-holder once again moved the High Court under Article 227 of the Constitution. The High Court considered the various provisions and the propositions of law and ultimately concurred with the appellate Court holding that the eviction of the tenant on the consent terms was correct and it was not required to be interefered with. It was in the aforesaid circumstances that the Supreme Court was approached and the Apex Court made very pertinent observations after elaborate reference to the Scheme of Bombay Rent Act in Para-4 of the reported judgment. The Apex Court thereafter proceeded to observe: It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court's imprimatur is affixed to get it the sanctity of an executable Court order. We must, however, point out that the Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the law vests exclusive jurisdiction in the Court to adjudicate on any matter, e.g. fixation of standard rent, the Court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable. In such a case it is the independent satisfaction of the Court which changes the character of the document from a mere contract to a Court's adjudication which will estop the tenant from contending otherwise in any subsequent proceedings as operate as res judicata. If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invirum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.
The apex court in case of Pulavarthi Venkata Subba Rao & Ors. V. Valluri Jagannadha Rao & Ors. reported in AIR 1967 SC 591 held that the compromise decree is not a decision by the court but sets the seal of the court on the averments of the parties in following words : "The compromise decree was not a decision by the Court. It was the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the court on the agreement of the parties. The court did not decide anything. Nor can it be said that a decision of the court was implicit in it. Only a decision by the court could be res judicata, whether statutory under S. 11 of the Code of Civil Procedure, or constructive as a matter of public policy on which the entire doctrine rests. The respondents claim to raise the issue over again because of the new rights conferred by the Amending Act, which rights include, according to them, the re-opening of all decrees which had not become final or which had not been fully executed. The respondents are entitled to take advantage of the amendment of the law unless the law it itself barred them, or the earlier decision stood in their way. The earlier decision cannot strictly be regarded as on a matter which was "heard and finally decided." The decree might have created an estoppel by conduct between the parties; but here, the appellants are in an unfortunate position, because they did not plead this estoppel at any time. They only claimed that the principle of res judicata governed the case or that there was an estoppel by judgment. By that expression, the principle of res judicata is described in English law. There is some evidence to show that the respondents had paid two sums under the consent decree, but that evidence cannot be looked into in the absence of a plea of estoppel by conduct which needed to be raised and tried. The appellants are, however, protected in respect of these payments by the proviso to Cl. (iii) of S. 16 of the Amending Act."
Five-judge Bench of the apex court in case of Sailendra Narayan Bhanja Deo V. The State of Orissa reported in AIR 1956 SC 346. S.R. Das, C.J., states: "... a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case ...."
Supreme Court in the decision reported in Victoria v. K.V. Naik & Ors. (1997 (6) SCC 23). In that decision, the Supreme Court, by interpreting Explanation IV to S. 2(25) and S. 125(3) of the Kerala Land Reforms Act, as amended held that: "If the plea regarding Kudikidappu rights had not been raised, it would operate as constructive res judicata on the principle of "might and ought". If it was taken and rejected, it would operate as res judicata and the same cannot be raised in execution. Even if it was left open, in equity, justice and good conscience, it must not be extended to the mortgagee."
The basis on which the rule of res judicata is founded and its applicability have been succinctly set out in Daryao and others v. State of U.P. And others . AIR 1961 SC 1457 ''The rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects for instance the rule of constructive res judicata may be said to be technical. But the basis on which the said rule rests is founded on consideration of public policy. It is in the interest of public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.'' For the rule of resjudicata to apply it is necessary that the decision arrived at was on merits to be binding on the parties. Further, that the decision is arrived at where in a contest both parties have an opportunity to prove their case. The Court ruled that when writ petition was dismissed in liming on grounds of laches or alternative remedy being available, the said decision shall not operate as res judicata. The Court observed, ''If a writ petition is dismissed in liming and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in liming without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in liming even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed.''
The Supreme Court again in Ferro Alloys Corpn. Ltd. and another v. Union of India and others reported at (1999) 4 Supreme Court Cases 149 held that before any issue is said to be heard and finally decided, the Court considering it has to be shown to have expressly considered such an issue and have decided it one way or the other and such decision should have obtained finality in the hierarchy of proceedings. Then only such an issue can be said to be heard and finally decided between the parties.''
Decision of the Supreme Court in the case of Sheodan Singh V. Daryao Kunvar, reported in AIR 1966 SC 1332, wherein it has been observed as under : "In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of the parties or multifariousness, or on the ground that the suit was badly framed, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate, when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-Fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit"
Decision of the Supreme Court in the case of Shivshankar Prasad Shah and another V. Baikunth Nath Singh, and others, reported in AIR 1969 SC 971, wherein it has been held as under : "Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment debtor of an application filed by him under Section 47, Civil P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed him."
Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, thus : "16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata...."
Supreme Court in Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors., AIR 2000 SC 2301, has held : "...In order to apply the general principle of res judicata Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata."
In Mohanlal Goenka vs. Benoy Kishna Mukherjee & Ors. 1953 AIR 65, 1953 SCR 377 , Supreme Court said that principle of constructive res judicata is applicable to execution proceedings is no longer open to doubt. It was a case in which the execution application was made and a notice of that application was served upon the judgment-debtor. No objection was raised to proceed with the execution proceedings resulting in sale of his property. He filed an application for setting aside the sale. The court said: ".....failure to raise such an objection which goes to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata...'
Satyadhyan vs. Smt. Deorajin Debi 1960 AIR 941, 1960 SCR (3) 590 The Court made the following observations which bring out the cases in which the principle of res judicata applies in two stages of the same litigation and an interlocutory order falling in that category where principle of res judicata applies. The Court said: "The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having an earlier stage decided a matter in one way will not allow the parties to re agitate the matter again at a subsequent stage of the same proceedings."
In Arjun Singh vs. Mohindra Kumar 1964 AIR 993, 1964 SCR (5) 946 , the Court said: "Interlocutory orders are of various kinds: some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based.....There are other orders which are also interlocutory, but would fall into a different category, the difference from the once just now referred to lies in the fact that they are not directed to maintaining the status quo, or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are inter locutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under O.IX R. 7, Civil Procedure Code, would be an illustration of that type."
In Vithal Yeshwant Jathar vs. Shikandarkhan Makhtumkhan Sardesai [(1963) 2 SCR 285], this Court observed that "it is well settled that if the final decision in any matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision the decision on each of these points operates as res judicata between the parties."
In Shakur Basti Shamshan Bhumi Sudhar Samiti v. Lt. Governor, NCT of Delhi (2007) 13 SCC 53, the order passed by the High Court for closure of cremation ground, in conformity with zonal development plan, had attained finality. This Court has held that any subsequent order passed in ignorance of the order of the High Court which has attained finality is nullity.
In India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd., 2007 (5) SCC 510, this Court has held: "The doctrine of comity or amity required a court not to pass and order which would be in conflict with another order passed by a competent court of law”
U.P. State Road Transport Corporation v. Asstt. Commissioner of Police (Traffic) Delhi [2009(3) SCC 634], wherein it is observed that “a decision is an authority, it is trite for which it decides and not what can logically be deduced therefrom. This wholesome principle is equally applicable in the matter of construction of a judgment. A judgment is not to be construed as a Statute. It must be construed upon reading the same as a whole. For the said purpose, the attending circumstances may also be taken into consideration.”
It has to be noted that the statement of as to what transpired at the hearing, the record in the judgment of the Court are conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. If a party thinks that the happenings in Court have been erroneously recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges who have made record to make necessary rectification. That is only way to have the record corrected. It is not open to the appellant to contend before this Court to the contrary. (See State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. (1982 (2) SCC 463), Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (2003 (2) SCC 111), and Roop Kumar v. Mohan Thedani 2003 (6) SCC 595).
In the decision reported in 2004 10 SCC 598, the Hon'ble Supreme Court, in paragraph 9 of the said judgment, has held that where the High Court has specifically recorded to the effect that only two points were urged before it, in order to ascertain as to what transpired in the Court, the record in the judgment of the Court should be taken as a conclusive proof and no one should be allowed to contradict such statement on an affidavit or by other evidence. It was further held that if a party wanted to take a stand that what was recorded was erroneous, the party should approach the concerned Court for making any rectification and it is not open to the party to contend contrary to what has been recorded before the Hon'ble Supreme Court.
In the decision reported in AIR 2003 SC 2418, it was again reiterated in paragraph No.11 that it is not open to a party to turn around and take a plea that no concession was given. which would amount to a case of sitting on the fence, which should not be encouraged. It was again stated that if really there was no concession, the only course open to the party was to move the concerned Court and not by approaching the appellate court.
In the decision reported in AIR 1982 SC 1249, the Hon'ble Supreme Court, while reiterating the said position, however, carved out an exception, which reads as under:-. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
In the decision reported in AIR 1998 SC 1681, it has again been reiterated that a wrong concession on a question of law made by a counsel is not binding on his client and such concession cannot constitute a just ground for a binding precedent. It was pointed out therein that if the appellant in that case had pointed out the true position, the learned single Judge would not have granted relief in favour of the respondent. It was further held that if the counsel had made an attempt to give concession inadvertently or under a mistaken impression of law, it would not be binding on the client and the same cannot any how benefit any party.
The said decision was followed again by the Hon'ble Supreme Court in the decision reported in AIR 2001 SC 2306. In the decision reported in (2004) 3 SCC 628, the Hon'ble Supreme Court had gone one step further and has held that applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law could invariably depend upon the scope and meaning of the provisions and has got to be adjudged not on any concession; that any such concessions would have no acceptability or relevance while determining the rights and liabilities incurred or acquired in view of the axiomatic principle that there can be no estoppel against the statute.
Hon'ble Supreme Court reported in AIR 2001 SC 2306, it is made clear that an admission or concession by a counsel made inadvertently or under a mistaken impression of law will not only bind on his client, but also the same cannot enure to the benefit of the other party.
The principles that emerge from the several decisions of supreme court are framed by madras high court division bench consisting of HONOURABLE Mr. JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE Mr. JUSTICE B.RAJENDRAN in the case of The Deputy Commissioner Of Income ... vs K.S.Suresh, 2009:-
a) Any concession made by a Counsel against the statutory provisions would be unauthorised and any order based on such erroneous concession should be recalled. (AIR 1998 SC 465);
b) A wrong concession on a question of law made by a counsel is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. (AIR 1998 SC 1681);
c) If the learned counsel has made an admission or concession inadvertently or under a mistaken impression of law, it is not binding on his client and the same cannot enure to the benefit of any party;
d) Courts are not to act on the basis of concessions but with reference to the applicable provisions;
e) Any concession would have no acceptability or relevance while determining the rights and liabilities incurred or acquired in view of the axiomatic principle without exception, that there can be no estoppel against statute;
f) Any wrong concession made by a counsel before the Court cannot bind the parties when statutory provisions clearly provide otherwise;
g) A party may be allowed to revile and an Appellate Court may permit in rare and appropriate cases to resile from a concession made on a wrong appreciation of the law and had led to gross injustice though one may not call in question the very fact of making the concession as recorded in the judgment.
JUSTICE R Raveendran in the case of M. Ramakrishna Reddy vs Sub-Registrar, Rajajinagar, AIR 2000 Kant 46, ILR 1999 KAR 2033 In view of the above, when a person who claims to be the owner or a person interested in an immovable property, finds that someone else has executed and registered a sale deed or other deed in regard to his property, claiming to be the owner or a person interested in the property, the appropriate course for him is to file a suit for declaration and consequential reliefs. If he is satisfied such sale deed is executed by a person without any title and that the deed is void ab initio, he may even choose to ignore the same and leave it to the person claiming title under such deed to establish his title in appropriate proceedings. A Court of Law has the jurisdiction to declare a document to be void or even cancel a document. But under no circumstances, a person claiming to be the owner of a property or a holder of a property, can require the Registering Authority to cancel the registration of a document or to cancel the entry made in Book No. 1 in regard to a registered document or to delete or remove the entry made in the indexes relating to Book No. 1. The Registering Officer has no such power. Consequently, the question of the Registering Officer deleting any entry either from the Indexes of Book No. 1 or the extracts therefrom contained in the Encumbrance Certificate by holding transaction covered by a registered instrument is illegal or void, does not arise.
JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 It is well-settled that when a document is duly presented for registration (within the time prescribed), if its registration is refused or if its registration is kept pending, and thereafter the document is registered either on the direction of the Registrar or competent Court or on the Sub-Registrar satisfying himself that there is no impediment for registration, the registered document will operate, not from the date of actual registration, but from the date when the deed was executed. This principle can be gathered from the provisions of the Registration Act, 1908 (Sections 47 and 75) and several decisions the earliest of which are that of the Madras High Court in the case of Venkatarama Reddi v. Pillati Rama Reddy, ILR 1916(40) Mad. 204 and of the Privy Council in the case of Chhotey Lal v. Collector of Moradabad, AIR 1922 PC 279 : ILR 1922(44) All. 514. A learned Single Judge of this Court in the case of Azeezulla Sheriff alias Anwar Pasha and Ors. v. Bhab-huthimul, 1972(2) Mys. L.J. 408 : AIR 1973 Mys. 276, held thus: "Sub-section (3) of Section 75, only determines the deemed date of registration in respect of documents compulsorily registered in pursuance of an order made under Section 75(1). Sub-section (3) of Section 75 does not deal with the effect of registration of a document. That topic is dealt with by Section 47 which states that once a document is registered, it 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. The expression "not from the time of its registration" used in Section 47 makes it clear that the date of registration, whether actual or the deemed date under Section 75(3), has no relevance whatsoever for determining the time from which the registered document operates. Once the document is registered, whether it is on admission of execution under Section 35 or by way of compulsory registration under Part XII of the Act, the provisions of Section 47 are attracted for the purpose of determining the time from which the registered document operates". This was reiterated in the case of Rathnakar v. H.S. Madhava Rao and Ors., 1990(4) Kar. L.J. 541 : ILR 1991 Kar. 2190
JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 When registration of a document is ordered to be kept pending, or when registration of a document is refused, and subsequently such document is ordered to be registered, such registration takes effect as if the document had been registered when it was first duly presented for registration. That would mean that the registration relates back to the date of execution. The well-settled principle is that if there is a competition between registered documents relating to the same property, the document first in order of time has priority over the other, though the former document may not have been registered until after the latter.
JUSTICE R Raveendran, JUSTICE K Manjunath in the case of Veerabhadrappa And Anr. vs Jagadishgouda ILR 2003 KAR 3042, 2002 (5) KarLJ 55 The role played by the Sub-Registrar in registering a document is rather limited. He has no power or authority to examine the rival claims as to whether a sale deed presented for registration is really a sale deed or not, nor is he empowered to grant any declarations in regard to binding nature of documents.
Justice B Singh, Justice J Shety In S. Sreenivasa Rao v. The Sub-Registrar (Headquarters), Mysore, ILR 1990 KAR 3740, 1990 (2) KarLJ 258 Court held that if the provisions of the Registration Act and Rules and other laws are complied with, the Sub-Registrar is bound to register the document and no direction can be issued to the Sub-Registrar not to register the document. It was also held that if any person is interested in contending that the registered document is invalid or illegal for any reason, he has to question the validity before the proper forum in appropriate proceedings. …. We also find no provision in the Registration Act, 1908 which obliges the Sub-Registrar to act upon any such direction and/or to investigate at the stage of registration of a document itself, the title of the party executing the document. We are, therefore of the view that if a document is presented for registration by the executant, and in doing so, the executant complies with all the provisions of Registration Act, 1908, it is not open to the Sub-Registrar to refuse registration of the document unless he exercises that discretion pursuant to any provision in the Registration Act, 1908 or any other law or Rule having the force of law. The mere registration of a document is by itself not a proof of its validity, neither does it follow that the executant had title to the property, he seeks to dispose of under the document. Matters such as relating to title have to be decided before the appropriate forum. If any person is interested in contending that any particular document executed and registered under the Registration Act, 1908 is invalid or illegal for any reason whatsoever, he !s certainly at liberty to question the validity of the document, the title of the executant, and such other questions before the proper forum in an appropriate proceeding.”
Rule 145 of the Karnataka Registration Rules, provides thus: "Protests against registration of documents.--The Registering Officer should not entertain any petition protesting against registration of document. Such petitions, when insisted should be received and returned immediately with an appropriate endorse ment and no record should be kept in the office. Since these petitions are not to be filed, their copies cannot be granted".
Justice K.L. Manjunath, J. in the case of Leelavathi vs M. Neelakanta Naidu, Reported in ILR 2006 KAR 4637, 2006 (6) KarLJ 617 …….if any document is registered behind the back of the true owner in a clandestine manner, owner of a property is not expected to go before the Sub-Register' s Office and verify whether any third party has executed a document in respect of his property to a third party. In other words, owner of the property cannot keep a watch or stand before the Sub-Register like a Watch-dog to verify whether any parson has executed any document conveying his property to a third party. From reading of Article 59, the Court has to hold that the limitation run from the date of the knowledge. Therefore, in order to find out the actual date of knowledge, the evidence is required to be recorded by the Trial Court as it is a mixed question of fact and law. The date of knowledge is a question of fact and without there being an evidence, the Trial Court was not justified in dismissing the suit as barred by limitation.
Justice V G Gowda in the case of Sulochanamma vs H. Nanjundaswamy 2001 (1) KarLJ 215 The Sub-Registrar was entrusted with the duty of registering the documents in accordance with the provisions of the Act and he was not authorised to go into the genuineness or otherwise of the documents presented before him. If the documents are bogus or false, the party affected by it will have the right to initiate both civil and criminal proceedings to prosecute the party who tries to have benefit from such document and also to safeguard his right, title and interest. It was not for either the Tahsildar or the Sub-Registrar to express opinion as to the genuineness or otherwise of the documents unless called upon by the Court of law or any other authorised investigating agency. There was no occassion for the Sub-Registrar to refer the document to the Tahsildar when presented for the purpose of registration. Thus, both the Tahsildar and the Sub-Registrar have exceeded their jurisdiction in the matter in submitting his report regarding registration of the document and upon such report the second respondent should not have made an endorsement on the document and refused to register the document by him.
Amteshwar Anand v. Virender Mohan Singh & Ors; (2006) 1 SCC 148 Section 17(1) of the Registration Act, 1908 in so far as it is relevant, requires under Clause (b) thereof, registration of "non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property". Sub section (2) of Section 17 creates exceptions to the mandatory requirements of Section 17(1) (b) and (c). One of the exceptions made in Section 17(2) of the Registration Act 1908, is Clause (i). This exception pertains to "any composition deed." In other words all composition deeds are exempt from the requirement to be registered under that Act . The Composition Deed in this case was a transaction between the members of the same family for the mutual benefit of such members. It is not the appellants' case that the agreements required registration under any other Act. Apart from this, there is the principle that Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received benefits under the arrangement . Both the courts below had concurrently found that the parties had enjoyed material benefits under the agreements. We have ourselves also re-scrutinized the evidence on record on this aspect and have found nothing to persuade us to take a contrary view.