LODHA, J - (1.) THIS is a defendant's second appeal arising out of a suit filed by the respondent Jalam Singh ( who has also been mentioned at certain places as Jal Singh ) alleging that the appellant Chatram managed to get a sale deed in respect of agricultural land Khasra No. 35 and 42 situated in village Bhamasi executed in his favour for a consideration of Rs. 500 only by practising fraud and misrepresent-tion on the plaintiff to the effect that sale deed was in fact being written in favour of the Mukhiyas of village Bhamasi for providing pasture land for the village as a whole. It was, therefore, prayed that the sale deed dated 10-9-1962 marked Ex. 1 be cancelled and a perpetual injunction be issued against the defendant not to interfere with the plaintiff's possession over the agricultural land in dispute. The defendant denied the plaintiff's suit.
(2.) AFTER recording the evidence produced by parties the learned Munsiff, Deedwana while holding that the plaintiff had failed to establish the fraud and misre-presentation set up by him was yet entitled to get a decree for cancellation of the sale deed on the ground that the same had been illegally registered in violation of the provisions of Sections 34-55-58 and 59 of the Indian Registration Act, 1938. Aggrieved by the judgment and decree by the trial court the defendant filed appeal in the Court of District Judge, Merta but was unsuccessful. Consequently, he has come in second appeal to this Court. Learned counsel for the appellant has urged that even if there was error of procedure committed by the Sub- Registrar in registering the document, the sale deed could not be invalidated on that ground. In support of his contention he has relied upon Smt. Gomti vs. Rameshwar Das (1), Khetmal vs. Chhaganraj (2), and Rindu vs. Vithoba (3 ). On the other hand learned counsel for the respondent has urged that the defect of registration in the present case is one of fundamental nature, and, therefore, the registration of the sale deed will be deemed to be invalid and consequently no valid sale of the land in question in absence of a valid registered sale deed can be said to have come into existence. It is thus argued that the sale deed was rightly cancelled by the Courts below. The question of invalidity of registration arises in the following circumstances - The sale deed was executed on 10. 9. 1962 and was presented by the vendee the defendant Chatra Ram for registration before the Sub-Registrar, Deedwana on 18 9-1962. A notice was issued to the executant namely the plaintiff, of the presentation of the sale deed whereupon he appeared before the Sub-Registrar on 12. 11. 1962 and stated that he had not got the sale deed written but the thumb mark appearing thereon is his and further that he did not want to get deed registered. After having made an endorsement to this effect, the Sub Registrar directed the registration of the sale deed under section 17 of Indian Registration Act. The Courts below have held that a bare admission of the executant before the Sub-Registrar that the thumb-mark on the document was his did not amount to execution of the deed as contemplated by S. 34 and 35 of Indian Registration Act. Learned counsel for the appellant, however, has not entered into the controversy whether this finding is erroneous? and assuming it to be correct he has argued that even if the Sub-Registrar committed an error of procedure by Registering the document inspite of there being no full-fledged admission of execution by the executant, the document would not stand invalidated on that ground. In this connection reference may be made to sec. 87 of the Registration Act, which reads as under: - "87. Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any registering officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure. After exhaustive discussion of law on subject the learned Full Bench of this Court in Smt. Gomti vs. Rameshwar Das referred to above has held that the correct proposition is that if a document purporting to have been executed by A, B and C has been registered by the Registering Officer on A alone appearing before him and admitting execution then it is to be regarded validly registered and is admissible in evidence against B and C also despite their failure of execution before him and if the plaintiff proves at the trial that B and C also executed the deed it will be effective against them also. In support of their conclusion their Lordships relied on the following observations of the Privy Council in Mohammad Ewaz vs. Birjlal (4) "no injustice is done by admitting a deed to registration, because the effect is no more than to satisfy an onerous condition before the deed can be given in evidence, and when in evidence, it is subject to every objection that can be made to it precisely as if no registration had taken place; where as when registration is refused, the effect my be to deprive the party altogether of perfectly good rights which he might have under the deed but for the Registration Act. " "the registration is mainly required for purpose of giving notoriety to the deed, and it is required under the penalty that the deed shall not be given in evidence unless it be registered. " It cannot be denied that the error alleged to have been committed by the Registering Officer in registering the suit document in the present case was an error of the procedure covered by sec. 87 of the Registration Act and nothing has been brought to my notice to show that there has been a violation of a mandatory provision of the Act which renders the registration of the deed invalid. Again in Khetmal vs. Chhanganraj (2) the learned Judge relied on the following observations of Lord Atkin in Ma Pwa May vs. S. R. M. M. A. Chettiar Firm, AIR 1929 P. C. 279 - "where the Registrar has no jurisdiction to register, as where a person not entitled to do so presents for registration, or where there is lack of territorial jurisdiction or where the presentation is out of time S. 87 is inoperative. On the other hand, if the registrar having jurisdiction has made a mistake in the exercise of it, S. 87 takes effect. " It may be pointed out that the aforesaid observations of the Privy Council were approved by the Supreme Court in Kishore Chandra Singh vs. Ganesh Parsad Bhagat (5) At this stage it may be relevant to reproduce the following observations made in Rindu vs. Vithoba (3): - "where a registering officer acts with due care but takes a mistaken view of law the mistake must be treated as a defect in his procedure, to which the provisions of sec. 87 apply and the document must be deemed to be duly registered. " The facts of the Nagpur case (5) are somewhat similar to those of the case on hand, inasmuch as, in that case also it was urged that the executants had merely admitted to the Registrar that they had marked the document, but added that their marks had been obtained by fraud. The Registrar treated their statements as admission of execution of the document. In this connection the learned Judge observed that the framers of the Registration Act cannot be believed to have intended that the document should not be registered until it had been ascertained that the executants were or should have been aware of every provision of the document. Apart from this however, in the present case I have come to the conclusion that the mistake, if any, even if it is held to have been committed by the Sub-Registrar in registering the suit document, it was only of procedure and conseqe-ntly could not have invalidated the document in view of the provisions of S. 87 of the Registration Act. In this view of the matter there is no escape from the conclusion that the courts below were not justified in cancelling the sale deed on the ground that it was not validly registered. While coming to this conclusion I have not referred to the cases relied upon by the learned counsel for the respondent, as in my view, they are not in point. Faced with this position learned counsel for the respondent tried to justify the judgment of the learned District Judge under appeal on the finding arrived at by him that the plaintiff had not been able to establish fraud and misrepresentation is erroneous. Learned counsel succeeded in persuading me to go through the evidence on point because the learned Distt. Judge did not deal with it properly. However, even after going through the relevant evidence on the point, he has not been able to persuade me to take a contrary view from the one taken by the Learned District Judge. The scribe of the document D. W. 6 Ayodhya Prasad and attesting witnesses D. W. 5 Hanurnana Ram and D. W. 7 Budharam have stated in clear terms that after the document had been scribed its contents were read over to the defendant who put his thumb mark on it after having understood the same The defendant has ofcourse supported his case in full in his statement as D. W. 1, As against this evidence the only witnesses produced by the plaintiff, who are alleged to have been present at the time the document was written are P. W. 3 Jiwan Ram and P. W. 6 Bhawana. P. W. 3 Jiwan Ram states that the contents of the document were read out to the plaintiff in his presence and to the same effect is the statement of P. W. 6 Bhawana. From the statements of these witnesses it appears that inspite of having been made aware of the contents of the document, the plaintiff put his thumb mark to it, and also accepted the sale price It is remarkable that it was at a considerably late stage, that is, on 24th September, 1962 that the plaintiff gave notice to the defendant that the sale deed was not acceptable to him as the same had been obtained by fraud and misrepresentation. If there had been any truth in the plaintiff's allegation regarding fraud and misrepresentation, he would not have waited so long and would not have put his thumb-mark to the document nor would he have accepted the sale price. On taking into consideration the evidence produced by the parties I have come to the conclusion that the plaintiff has failed to establish that any fraud or misrepresentation was practised on him to obtain his thumb mark on the sale deed Ex- 1. I am, therefore, unable to accede to the submission made by the learned counsel for the respondent in this respect. Before parting with the case I may observe than the plaintiff has also filed cross objections against the finding of the lower court on the question of fraud and misrepresentation. Even without filing cross-objections the plaintiff could have taken this ground. Be that as it may, there is no substance in the cross-objections, and the same are hereby dismissed. The result is that I allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintiff's suit. In the circumstances of the case the parties are left to bear their own costs throughout. . ;