9911796707
TMI Blog2018 (10) TMI 1879X X X X Extracts X X X X X X X X Extracts X X X X ..... /2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land. Learned counsel for the respondents has failed to show any other authority taking a contrary view one taken by the learned Single Judge in the aforesaid cases and the reason for the same is otherwise obvious. Accordingly, taking the support from the aforesaid judgment by holding that the oral exchange of more than ₹ 100/- is impermissible in law. Whether the alleged exchange could have been transacted and effected on behalf of the appellants/plaintiffs by their father and that too when the father appears to have not been appointed as attorney of the appellants/plaintiffs? - HELD THAT:- It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur of defendant No. 4 dated 28.10.1994 are illegal and wrong and assailed the validity of sale deed dated 3.10.1994 as executed by defendant No. 3 Kuldeep Chand in favour of defendant No. 4 Nirmala Devi the same having been procured by misrepresentation of facts and playing fraud. The plaintiffs claimed decree for possession of the land as entered against Khata No. 202, Khatauni No. 294, Khasra No. 846/793/1, situated at Mauja Sughar. It was alleged that the land as entered against Khasra No. 846/793 measuring 0.07.28 hectares at Mohal Sughar is entered in the ownership and possession of the plaintiffs. In the remarks column in red ink a mention has been made about mutation No. 392 as attested in favour of defendant No. 3 Kuldeep Chand to the extent of 0.00.40 hectares and Khasra number has been shown as 846/793/1, as per jamabandi for the year 1993-94. It was alleged by the plaintiffs that no exchange deed was executed between the plaintiffs and defendant No. 3 nor plaintiffs ever were present at the time of attestation of mutations. Since the plaintiffs did not exchange any land with defendant No. 3, therefore, entries in revenue record to this effect were challenged. It was alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged part of the suit land with defendant No. 3 and that he in turn executed sale deed in respect of the land obtained by him in exchange in favour of defendant No. 4 and that mutations No. 392 and 395 were attested in this regard. Defendant No. 3 failed to disclose as to what land was given by him exchange, but plea of oral exchange was raised. Defendant No. 3 claimed that this oral exchange took place through late Sh. Mast Ram, father of the appellants and that Sh. Mast Ram was Special Power of Attorney of the plaintiffs. Defendant No. 3 claimed that the plaintiffs and their father requested defendant No. 3 for exchange of the land for the purpose of passage leading to their house and that exchange had taken place. The defendant No. 3 claimed that he gave 0.00.40 hectares of land to the plaintiffs but no khasra number was disclosed. However, it was submitted by him that area of Khasra No. 846/793/1 was sold by him to defendant No. 4. 6. Defendant No. 4 contested the suit by filing separate written statement whereby she claimed that the plaintiffs entered into oral agreement of exchange the land with defendant No. 3 and that Sh. Mast Ram, father of the plaintiffs being Special P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, constraining the plaintiffs to file the instant appeal. 10. On 28.3.2006 the appeal was ordered to be admitted on the following substantial questions of law: 1. Whether the alleged exchange could have been transacted and effected on behalf of the appellants/plaintiffs by their father and that too when the father appears to have not been appointed as attorney of the appellants/plaintiffs? 2. Whether oral exchange of immovable property worth more than ₹ 100/- is permissible? 3. Could the first appellate court have reversed the decree of the learned trial Court based on the reasoning that there was variance between the plea taken in the written statement and the testimony of defendant No. 3 as to the mode of exchange viz. In the written statement it was alleged that there was an oral exchange and in the testimony it was stated that a deed of exchange had been executed? I have heard the learned counsel for the parties and have gone through the material placed on record. 11. I have first refer to substantial question No. 2 as it is a pure question of law which can conveniently be decided without referring to the facts of the case. 12. The issue in questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] 2) Nothing in clauses (b) and (c) of sub-section (1) applies to- (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or (iv) any endorsement upon or transfer of any debenture issued by any su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]............ 23. Perusal of aforesaid Section 17 clearly suggests that document/instrument, which intends/purports to create right/title to an immovable property having value of ₹ 100/- should be registered. Similarly, perusal of section 49 of the Act suggests that documents, which are required to be registered under section 17 shall not affect any immovable property; comprised therein or confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified. (pp. 367-368 27. Perusal of aforesaid law, having been laid by Hon'ble Apex Court, clearly suggests that title of immovable property, having value of more than ₹ 100/-, can only be transferred by register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn. (p. 2196) 30. In Satyawan and others v. Raghubir, AIR 2002 Punjab and Haryana, 290, the Hon'ble Court has held as under:- 18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by A with property Y belonging to B . In this manner, the property is received in exchange of property. There is transfer of ownership of one property for the ownership of the other. It was submitted that prior to when decree dated 20.10.1992 was not passed, there was no title of A in property Y and there was no title of B in property X . It was submitted that for the first time, the right was created in immovable property by decree and, therefore, that decree required registration. It was submitted that if there was no pre-existing ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land. 33. Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of the land can only be effected by the authority as prescribed under Sections 122 and 123 of the H.P. Land Revenue Act. Moreover, partition deed Ex. DW-3/A, which was prepared on 15.5.1994, could not be prepared because admittedly the defendants had no pre-existing title in the suit land, as stands duly proved on record. Defendant himself has admitted that Munshi Ram was absolute owner in possession of the land which he had acquired as Nataur. 34. Since this Court has already come to the conclusion, on the basis of aforesaid provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst non-examination of Mast Ram, who probably by that time had otherwise died. If that was not enough, the first appellate Court qua the presumption regarding mutation entries makes an absurd observation by stating not only this, mutation entries which are quasi judicial in nature and presumption of truth is always attached the same, unless other proved by cogent, convincing and judicial confidence conspiring evidence. Mutation attestation proceedings cannot be presumed to be otherwise incorrect, untrue. 18. It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. (Refer: Sankalchan Jaychandbhai Patel and others v. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433). 19. This authority in turn was considered by this Court in Param Dev and others v. State of Himachal Pradesh and others 2014 (2) Shim. L.C. 928 : Param Dev and others v. State of H.P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: (SCC p. 227, para 7) 7. ......Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment...... 21. In Guru Amarjit Singh v. Rattan Chand 1993 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In Jattu Ram v. Hakam Singh 1993 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the appellants in the revenue records. In Kishan Singh (Dead) v. Arvind Kumar 1994 6 SCC 591 and P.T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
