' This first appeal is directed against the judgment dated 15-9-1982 whereby the learned Additional District Judge, Multan set aside the judgment and decree dated 3-7-1979 and remanded the suit to the learned trial Court for its decision on merits.
2. The facts relevant for the disposal of this appeal, briefly stated, are that Siree Chand respondent on his behalf and also on behalf of his mother and sister agreed with Hafiz Abdul Rashid to sell the land in question. Rs, 11,000 were paid as earnest money and agreement to sell was executed on 16- 1-1967 and got registered on 18-1-1967: This was followed by another agreement to sell dated 5-4- 1967 which was registered three days later. Hafiz Abdul Rashid respondent, as was not able to pay the balance amount, sought the extension of time which was agreed to by Siree Chand and a third deed was executed on 23-6-1967. This was followed by execution of sale deed dated 12-7-1968 and the same was presented for registration by Hafiz Abdul Rashid respondent within 4 months of its execution. In proceedings before the Sub-Registrar Siree Chand appeared on 30-8-1968 and denied the execution of the sale-deed. Abdul Rashid then applied for registration under section 73 of the Registration Act. He supported his case by the affidavits of the parties and the original sale- deed. In the meantime Siree Chand respondent sold away the disputed property to the appellant vide sale-deed executed and registered on 6-4-1968. The appellant-vendee also joined the proceedings before the Registrar who after recording the evidence of the parties refused the registration. Thereafter, Hafiz Abdul Rashid respondent filed a suit under section 77 of the Registration Act seeking a decree directing the Registrar to register the sale-deed. This suit was registered by the appellant and Siree Chand respondent and the learned trial Court out of the pleadings of the parties framed the following issues:-
(1) Whether the suit become infructuous in view of preliminary objection No, 1?
(2.) Is the suit incompetent in view of preliminary objections Nos. 2 and 7?
(3) Whether the plaintiff is estopped from bringing the present suit?
(4) Whether defendant No, 2 effected any improvement over the land in dispute, if so, what is their cost and whether he is entitled to recover those costs?
(5) Whether this Court lacks jurisdiction to try this suit?
(6) Whether the proper court-fee has been paid?
(7) Whether defendant No, 1 suffered any loss on account of the failure of the plaintiff to get the sale-deed executed by him? If so, its effect?
(8) Relief.
' Issues Nos. 1, 3, 4, 6 and 7 were not pressed and as such were not decided. Under Issue No, 5 it was held that the Civil Court has jurisdiction to try the present suit under section 77 of the Registration Act. The learned trial Court under Issue No, 2 held that remedy of plaintiff lies under second proviso of section 50 of the Registration Act according to which the person in whose favour an unregistered document is executed shall be entitled to enforce the contract under the unregistered document in a suit for specific performance against the person claiming under a subsequent registered document subject to the provision of clause (B) of section 27 of the Specific Relief Act. It was thus held that the remedy of the plaintiff lies under the Specific Relief Act and the suit cannot proceed in its present form, and resultantly, the suit was dismissed. On appeal by Hafiz Abdul Rashid the decree of dismissal of suit was set aside. The learned Additional District Judge held that the only remedy available to Hafiz Abdul Rashid was to have access to the Sub-Registrar under section 35 of the Registration Act and under section 73 of the Act to the Registrar if he failed in the first instance and then remedy available to the vendee was in a suit under section 77 of the Registration Act. The first appellate Court, therefore, remanded the suit for decision on merits. Hence this first appeal against the remand order.
3. Learned counsel for the appellant-vendee under registered sale-deed dated 6-4-1968 argued that since there was a registered sale-deed in favour of the appellant as against the unregistered one, the latter could not be given effect to unless the first was set aside. It was added that remedy under section 77 of the Registration Act was inadequate as the Registrar cannot undo the sale- deed already registered in favour of the appellant and in these circumstances a suit under the Specific Relief Act alone was competent. It was further argued that the case of Satyanarayana v.
Yeerank China Venkatarao and others (1), wherein it was held that where the executant of a document at the time of the registration thereof objects to the registration which is, therefore, refused the remedy of the vendee is only a suit under section 77 of the Registration Act and not a suit for specific performance against the vendor, is distinguishable as in the said
(1) A 1 R 1926 Mad. 530 precedent the property in question had not been sold away in the meanwhile. Learned counsel, however, relied on Jhaman Mathton v. Anirit Mahton and others (1). In the Patna case the facts were that on 4th August, 1939 one Budhan Mahto executed a sale deed in favour of the plaintiffs in respect of 2.11 Acres of land which he purported to sell by a document for a sum of Rs, 700. As Budhan Mahto failed to register the deed the plaintiffs applied for compulsory registration but Budhan Mahto did not appear before the Registrar and the document was not registered. In this precedent learned Judges noted that there was nothing before them to show that the Registrar refused to register the document so as to enable the plaintiffs to have recourse to a suit as provided by section 77 of the Registration Act but the appeal was argued on the assumption that the plaintiff s could have brought a suit under section 77 and the learned Judges also proceeded on the same basis. It was also noted in this precedent that in fact the plaintiffs did not bring a suit under section 77 of the Act. They had filed the said suit after Budhan Mahto had executed and registered another deed of sale in favour of the appellant in respect of 1.66 Acres out of the land which was subject to previous sale-deed in favour of the plaintiffs, and in the suit the plaintiffs prayed for (1) a decree directing Budhan Mahto specifically to perform his part of the contract including registration of the sale-deed and to do all necessary acts to put the plaintiffs in full possession of the property subject of the sale-deed of 4th August, 1939; (2) an order directing the sale-deed to be registered; - and (3) a decree for possession of the lands in question. It will, therefore, be seen that the suit under consideration in this precedent was not a suit under section 77 of the Registration Act but was a suit for specific performance and possession. In this precedent the Madras case (supra) was also considered and the rule laid down was as under :- "In my opinion in a case like the present there are two alternative remedies available to the plaintiff.
It is open to him either to bring a suit under section 77, Registration Act, merely for the registration of the document and if he chooses to adopt that course, that suit must be brought within 30 days of the date when the Registrar refuses to register the document. It is equally open to him to have recourse to the fuller and more comprehensive remedy provided by a suit for specific performance of the contract of sale. If he brings the suit under section 77, his claim has to be confined only to the registration of the document, because, as has been held in several cases, in a suit under section 77 the Court is only concerned with the genuineness of the document sought to be registered that is, whether the document is executed by the person by whom it is alleged to be executed, and not its validity and the question of its validity must be determined in a suit properly framed for that purpose. In the present case, however, the plaintiffs were not only concerned with obtaining the registration of the document but also wanted the possession of the land which was subject of the unregistered sale-deed. They further wanted a relief as against a third party who was brought on the scene on account of a subsequent sale-deed having been executed in his favour by Budhan Mahto on 14th September, 1939. The scope of the present suit was obviously much wider than that of a suit under section 77 and I do not find any law which precludes the plaintiffs from bringing a suit which will give them
(1) AIR 1946 Patna 62 fuller relief than a suit under section 77 for mere registration of the document. It has been consistently held in this Court and several other High Courts that a suit for the specific performance of a contract is not barred merely because the aggrieved party does not choose to bring a suit under section 77, Registration Act, within the prescribed time and I have no hesitation in adopting this view in the present case also."
From the above quoted observations it is apparent that it is open to the parties to bring a suit under section 77 of the Registration Act merely for the registration of the document and if this course is adopted then the suit must be brought within 30 days of the date when the Registrar refuses to register the document. It is equally open to the parties to have recourse to the fuller and more comprehensive remedy by filing a suit for specific performance of the contract of sale. If the suit is brought under section 77, claim has to be confined only to the registration of the document as in a suit under section 77 the Court is only concerned with the genuineness of the document sought to be registered that is whether the document is executed by the person by whom it is alleged to be executed and not its validity and the question of its validity must be determined in a suit properly framed for that purpose. I may also add that the view taken in the Madras case (supra) that a man who has failed to adopt the remedy expressly provided by the Statute cannot come to the Court and ask for exercise in his favour of a discretionary and equitable remedy is no longer relevant with the addition of proviso to section 77 by the Registration (Amendment)
Ordinance 1962. This proviso reads as under :- "Provided that failure to file a suit or the dismissal of a suit filed under this section shall not disentitle a party to any other remedy to which he may be entitled, on the basis of the unregistered document."
4. Now the argument that as the property in question had already been sold to the appellant through a registered sale-deed the only remedy available to Hafiz Abdul Rashid respondent was to file a suit to enforce the contract under the Specific Relief Act as is provided in the second proviso of section 50, Registration Act, may be attended to. This argument is misconceived. Section 50 of the Act provides for priority of documents and the two provisos thereof provide for the two exceptions to the principle contained in the main part of the section. Considering the Scheme of the Registration Act I am clear in my mind that the principle of priority of documents has no relevancy to the direction to be made in a suit under section 77 of the Registration Act. The second proviso of section 50 Registration Act merely provides that the person mentioned in the proviso shall be entitled to enforce the contract under the unregistered document in a suit for specific performance against a person claiming under a subsequently registered document subject to the provisions of clause (b) of section 27 of the Specific Relief Act 1877. This proviso thus only reiterates the applicability of the aforesaid provisions of the Specific Relief Act in the case of a subsequently registered document. From this it does not follow that the provisions of sections 35, 73 and 77 of the Registration Act stand over-ridden The two provisos of section 50 Registration Act are of explanatory nature as they provide that neither the Transfer of Property Act 1882 nor the Registration Act nor the decision as to effect of notice with reference to section 50 of the Registration Act override the doctrine of equity contained in section 27 of the Specific Relief Act 1877. But the remedy provided by the Specific Relief Act as observed in Patna case (supra) as a fuller and more comprehensive remedy. This, however, does not mean that the availability of this remedy has the effect of taking away the remedy provided by section 77 of Registration Act. It will also be noted that cause of action of a suit for specific performance is distinct from that of a suit under Registration Act. Again, the failure to file a suit or dismissal of a suit under section 77 Registration Act is of no consequence for a suit to be filed under law on the oasis of an unregistered document. It is to be kept in mind that a suit1 under section 77 relates to registration, of a document when it is refused due to denial of execution by a person who had executed it. The enquiry of a Court, in a suit under section 77 is not concerned with the validity or legal effect of a document but is confined to the question whether the documents was executed and whether the requirements of registration law had been complied with. A decree passed under section 77 of the Registration Act effects only documents but does not effect the transaction and refusal to decree the suit cannot effect, contract of sale remaining unperformed till deed is registered. The net result of the above discussion is that the two remedies provided by the two laws are distinct and independent from each other, and that the remedy provided by the Specific Relief Act is no the only remedy which is to be availed of by an aggrieved party. In the instant case the respondent had filed the suit for a direction to the Registrar to register the document in question. Neither any other relief nor an question of legal effect or validity of unregistered sale-deed vis-a-vis the sale-deed executed and registered in favour of the appellant was raised. In view of above discussion it is apparent that the suit filed under section 77 of the Registration Act was maintainable and competent. The decree of dismissal of suit passed by the learned trial Court was thus unwarranted in law and the same was rightly set aside by the learned Additional District Judge Multan. The impugned remand order dated 15-9-1982 thus merits no interference. This appeal fails and is dismissed with costs.
5. As this is an old matter, the learned trial Court is directed to dispose of the same within three months.