Himachal Pradesh High Court
Naresh Kumar And Another vs Nirmala Devi And Others on 1 October, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 475 of 2004.
Judgment reserved on: 25.09.2018.
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Date of decision: 01.10.2018.
Naresh Kumar and another . ..Appellants/Plaintiffs Versus Nirmala Devi and others ...Respondents/Defendants Coram For the Appellants r :
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No Mr. G.D.Verma, Senior Advocate, with Mr. B.C. Verma, Advocate.
For the Respondents : Mr. Bhupinder Gupta, Senior Advocate, with Ms. Poonam Gehlot, Advocate, for respondents No.1, 2(a) to 2(d), 2(f) and 2(g).
Respondent No.3 stands deleted.
Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Addl.A.Gs., with Mr. Bhupinder Thakur, Dy.A.G., for respondent No.4.
Tarlok Singh Chauhan, Judge The plaintiffs/appellants have filed this regular second appeal against the judgment and decree passed by learned first Appellate Court whereby the appeal filed by respondent No.1 has 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 04/10/2018 22:57:21 :::HCHP 2 been allowed and the judgment and decree passed by learned trial Court has been set-aside.
.
2. Brief facts of the case are that the appellants filed a suit for declaration that mutation No.392 dated 14.7.1994 in favour of Kuldeep Chand, defendant No.3 and also that mutation No.395 as attested on behalf of defendant No.3 in favour 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 ::: Downloaded on - 04/10/2018 22:57:21 :::HCHP 3 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 alleged by the plaintiffs that defendants No.2 to 4 were in connivance with each other and fraudulently the attestation of mutation No. 392 was got manipulated by them and thereby the area of Khasra No. 846/793/1 measuring 0.00.40 hectares has been transferred on behalf of the plaintiffs in favour of defendant No.3 and, therefore, challenge was laid to the validity of mutation No.392.
3. It was alleged that the house of defendant No.4 and her husband who is a Junior Engineer is situated behind the house of appellants and therefore, defendant No.4 and her husband used to insist upon for sale of land by plaintiffs in their favour. After getting mutation No.392 attested in his favour pertaining to Khasra No. 846/793/1 measuring 0.00.40 hectares, defendant No.3, executed sale deed of this land in favour of defendant No.4 on 3.10.1994 and on the basis of this sale deed, mutation No.395 was attested unlawfully in favour of defendant No.4. It was alleged that the plaintiffs were dispossessed in the month of October, 1994 of the suit land in their absence and when they came to know in the month of November, 1994, defendants No.3 and 4 were requested to get these sale deeds and mutations cancelled but they failed to do so and therefore, the ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 4 plaintiffs claimed grant of decree for declaration to the effect that mutation No.392 as attested in favour of defendant No.3 and .
subsequent transaction of sale by defendant No.3 in favour of defendant No.4 and mutations No.392 and 395 were claimed to be illegal and also they prayed for a decree of possession of Khasra No. 846/793/1 measuring 0.00.40 hectares.
4. The defendant No.2 contested the suit by filing written statement wherein he claimed that no deed of exchange was produced by defendants at the time of attestation of mutation. However, it was stated that mutation was attested on the basis of Rapat No.525 dated 8.7.1994 and that Sh. Mast Ram, father of the appellants was present.
It was admitted that mutation No. 392 was attested in favour of defendant No.3 and mutation No. 395 was attested in favour of defendant No.4.
5. The defendant No.3 filed a separate written statement by claiming that neither the suit was maintainable nor plaintiffs have locus-standi and that the plaintiffs were estopped to file the suit and also that they had no cause of action. It was claimed by him that plaintiffs exchanged 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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 5 395 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 Power of Attorney got the mutation attested in favour of defendant No.3. She had further submitted that mutation of exchange had rightly been attested and claimed that mutation No.392 was sanctioned and area of Khasra No. 586/3/1 is in possession of the plaintiffs and that she purchased the area of Khasra No. 846/793/1 from defendant No.3 on 3.10.1994.
::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 67. On the basis of the pleadings, the leaned trial Court on 29.10.1999 framed the following issues:
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1. Whether mutation of exchange No.392 in favour of defendant No.3 Kuldeep Chand is wrong, illegal, null and void? OPP.
2. Whether the registered Sale Deed dated 3.10.1994 by defendant No.3 Kuldeep Chand in favour of defendant No.4 Nirmala Devi is wrong, illegal, void and result of fraud as alleged? OPP
3. Whether plaintiffs are entitled for the relief of possession of suit land, as alleged? OPP
4. Whether the plaintiffs have no cause of action to file the present suit? OPD1&3.
5. Whether the suit of the plaintiffs is not maintainable in the present form? OPD1, 3 & 4.
6. Whether the plaintiffs have no locus standi to file the present suit? OPD1,3 & 4.
7. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 3 & 4.
8. Whether the suit of the plaintiffs is bad for mis-joinder of necessary parties i.e. defendant No.1 as alleged? OPD1.
9. Whether this Court has no jurisdiction to try the present suit?
OPD1.
10. Relief.
8. After recording the evidence and evaluating the same, the learned trial Court vide judgment and decree dated 24.11.2001 decreed the suit of the plaintiffs in their favour by declaring mutation No. 392 sanctioned and attested by defendant No.2 in favour of ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 7 defendant No.3 pertaining to Khasra No. 846/793/1 to the extent of land measuring 0.00.40 hectares to be declared null and void and .
consequently sale deed dated 3.10.1994 executed by defendant No.3 in favour of defendant No.4 as also mutation No. 395 were declared to be null and void and a decree for possession of the aforesaid land was also passed in favour of the plaintiffs and against the defendants.
9. Defendant No.3 did not assail the judgment and decree passed by learned trial Court and only defendant No.4 Nirmala Devi filed the appeal before the learned first appellate Court which has been allowed vide judgment and decree dated 12.8.2004, 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 Rs.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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 8 oral exchange and in the testimony it was stated that a deed of exchange had been executed?
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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 question, in fact, is no longer res integra in view of the authoritative pronouncement of the Hon'ble Supreme Court as have been taken into consideration by a Co-ordinate Bench of this Court (Sandeep Sharma, J.) in a fairly recent decision in Piar Chand vs. Sant Ram and others 2017 (3) ILR (HP) 250 : 2017 (2) SLC 886 wherein it was observed as under:
"22. At this stage, this Court deems it fit to take note of Sections 17 and 49 of the Registration Act, 1908, which is reproduced hereinbelow:-
"17. Documents of which registration is compulsory. --
(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 9 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;
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(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;1
[(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest,whether vested or contingent, r of the value of one hundred rupees and upwards, to or in immovable property:] Provided that the 2[State Government] may, by order published in the[Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
4(1A) The documents containing contracts to transfer for consideration, any immovable property for 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 (l) 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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 10
(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 such Company; or 5
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court[except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii)any grant of immovable property by 2[Government];
or
(viii) any instrument of partition made by a Revenue-
Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or 3 [(xa)any order made under the Charitable Endowments Act, 1890, (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property;
or]
(xi)any endorsement on a mortgage-deed
acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 11
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer. 4[Explanation.-- A document .
purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contain s a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.... ... ... ... ..."
Section 49 of the Registration Act, 1908 reads as under:-
" 49. Effect of non-registration of documents required to be registered.--No document required by section 17 1[or by r any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered 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: 1 [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) 2,3 [***] 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 Rs.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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 12 confer any power to adopt or to receive any evidence to any transaction affecting the said property or conferring power unless it has been registered.
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24. After having carefully perused aforesaid provisions of law, this Court is of the view that Ex.P-1 as well as Ex.DX, which were admittedly not registered documents,as prescribed/ defined under Section 17 of the Act, could not be read in evidence by learned first appellate Court, especially,in the absence of any registered relinquishment deed made by the plaintiff in favour of defendant No.1.
25. As per Section 17 of the aforesaid Act,any document or instrument,which purports or intends to create title should be registered and in case same is not registered, it would not affect any immovable property comprised therein or moreover it could not be allowed as evidence of any transaction affecting such property.
26. In this regard, this Court deems it fit to rely upon the judgment passed by Hon'ble Apex Court in Suraj Lamp and Industries Private Limited Through Director vs. State of Haryana and Another, (2009)7 SCC 363, wherein the Hon'ble Apex Court has held as under:-
"15. The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration.
16. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments ) which purports or operates 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 Rs.100 and upwards to or in immovable property.::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 13
17. Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it .
has been registered. Registration of a document gives notice to the world that such a document has been executed.
18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information 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 r 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 Rs.100/-, can only be transferred by registered documents, as provided under Section 17 of the Registration Act, 1908. Similarly, it also emerge from the aforesaid judgment that no document as required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property unless it is registered.
::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 1428. Reliance is also placed upon SMS Tea Estates Private Limited vs. Chandmari Tea Company Private Limited, (2011)14 SCC 66, wherein the Hon'ble Apex Court has held as under:
.
"11. Section 49 makes it clear that a document which is compulsorily registrable, if not registered, will not affect the immovable property comprised therein in any manner. It will also not be received as evidence of any transaction affecting such property, except for two limited purposes. First is as evidence of a contract in a suit for specific performance. Second is as evidence of any collateral transaction which by itself is not required to be effected by registered instrument. A collateral transaction is not the transaction affecting the immovable property, but a transaction which is incidentally connected with that transaction. The question is whether a provision for arbitration in an unregistered document (which is r compulsorily registrable) is a collateral transaction, in respect of which such unregistered document can be received as evidence under the proviso to section 49 of the Registration Act.
(p.71)
29. In M/s.Kamakshi Builders vs. M/s. Ambedkar Educational Society & Ors., AIR 2007 SC 2191, the Hon'ble Apex Court has held:
"24. Acquiescence on the part of Respondent No.3 , as has been noticed by the High Court, did not confer any title on Respondent No.1. Conduct may be a relevant fact, so as to apply the procedural law like estoppel, waiver or acquiescence, but thereby no title can be conferred.
25. It is now well-settled that time creates title.
26. Acquisition of a title is an inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other.
27. It may be true that Respondent No.1 had constructed some buildings; but it did so at its own risk. If it thought that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 15 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 vs. 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 r "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 right in the property worth more than Rs.100/- and the right was created in the immovable property for the first time by virtue of decree, that decree would require registration. In my opinion, oral exchange was not permissible in view of the amendment of Section 49 of the Registration Act brought about by Act No. 21 of 1929, which by inserting in Section 49 of the Registration Act the words "or by any provision of the Transfer of Property Act, 1882" has made it clear that the documents of which registration is necessary under the Transfer of Property Act but not under the Registration Act falls within the scope of Section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction affecting any immovable property comprised therein, and do not affect any such immovable property. Transaction by exchange which required to be affected through registered instrument if it was to affect any immovable property worth Rs.100 or more."
(p.297)
31. In the instant case, though this Court is of the view that learned first appellate Court exceeded its jurisdiction by creating new case for defendants while placing reliance upon Ex.P-1 and Ex.DX, more particularly, when no such plea of 'Azadinama' was ever ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 16 raised/taken by the defendants in the pleadings as well as evidence adduced before the trial Court, but even then if findings returned by learned first appellate Court qua entitlement of defendants to ½ .
share in the suit property on the basis of aforesaid document is examined and tested in the light of aforesaid provisions of Registration Act, 1908, same cannot be held to be valid and in accordance with law. There is no relinquishment deed adduced on record by the defendants to prove their claim with regard to their having acquired ½ share in the suit land and as such learned first appellate Court erred in while placing reliance upon Ex.P-1,whereby, on the basis of oral Azadinama/relinquishment deed,½ share in the suit land has been ordered to be mutated in the name of defendants.
32. In the instant case, in view of aforesaid discussion having been made hereinabove, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex.P-1 to conclude that plaintiff had relinquished his ½ 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 ½ 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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 17 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 of law as well as material available on record,that no immovable property could be relinquished without there being registered document, mutation, if any, conducted on the basis of oral relinquishment/'Azadinama' as reflected in Ex.P-1 and Ex.DX has no bearing on the rights of plaintiff, who is absolute owner of the suit land and as such judgments relied upon by the learned counsel representing the defendants with regard to attestation of mutation in favour of defendants has no bearing in the present case and as such same are not discussed herein.
Substantial question of law is answered accordingly."
13. Similar reiteration of law can be found in another judgment rendered by the same learned Judge in Rattan Chand vs. Piar Singh, AIR 2018 (HP) Page 81.
14. 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 Rs.100/- is impermissible in law.
15. Having answered the substantial question of law No.2, now, I advert to the substantial question of law No.1.
::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 1816. At the outset, it may be observed that even answer to question No.2 would be sufficient to demolish the plea of exchange, .
yet, I would advert to go into this plea as the findings qua these have been reversed by the learned first appellate Court only on the ground that the father of the plaintiffs was present at the time when attestation of mutation of exchange taken place. Little realising that father and son are two separate and distinct entity in law and unless there was a power of attorney and or any document of the like in favour of the father, his statement if any, which otherwise has not been proved on record, could not bind the plaintiffs.
17. What is more shocking is that the first appellate court has in fact cast a negative onus upon the plaintiffs when it observes that the plaintiffs have failed to prove by leading any evidence that their father Mast Ram was not holding a power of attorney and that he was not present at the time when the entries were made in Rapat Roznamcha Ex.D-2 and at the time of attestation of mutation Ex.DW-
4/B. What is still more surprising is that he has drawn an adverse inference against 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 ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 19 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 vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433).
19. This authority in turn was considered by this Court in Param Dev and others vs. State of Himachal Pradesh and others 2014 (2) Shim.L.C. 928 : Param Dev and others vs. State of H.P. and others 2014 (1) Latest HLJ (HP) 440, wherein it was observed as under:
"7. It is well settled law that mutation does not confer any title. The mutation proceedings are summary in nature and are only for fiscal purpose to determine the land revenue and cannot be considered to be evidence about title. The Hon'ble Supreme Court in Sankalchan Jaychandbhai Patel and ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 20 others vs. Vithalbhai Jaychandbhai Patel and others (1996) 6 SCC 433 held as under:-
.
" 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"
(Para 7).
8. In Smt. Sawarni vs. Smt. Inder kaur and others AIR 1996 SC 2823, the Hon'ble Supreme Court held as under:-
"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 r 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."
Similar reiteration of law can thereafter be found in Rameshwar Dass (deceased) through his Lrs :Subhash Jain and others vs. Dayawanti (deceased) through her LRS: Manoj Bansal and others, 2016 (5) ILR (HP), 847.
20. At this stage, it would be apt to take note of judgment of the Hon'ble Supreme Court in Prem Nath Khanna and others vs. Narinder Nath Kapoor (dead) through legal representatives and others (2016) 12 SCC 235, wherein it was observed as under:
20. In addition to the abovementioned reason, the contention advanced by the learned counsel appearing on behalf of the respondents that the appellants failed to get the mutation of ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 21 entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of .
entries does not confer title upon the deceased respondent no.
1 in the immovable property. In the case of Sawarni v. Inder Kaur 1996 6 SCC 223, this Court held as under: (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 r 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 tKishan Singh (Dead) v. Arvind Kumar. 1994 6 SCC 591 and P.T Munichikkanna Reddy v. Revamma 2007 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 22 adverse. Mere possession for long time does not convert permissive possession into adverse possession."
.
21. In view of the aforesaid discussion, question No.1 is accordingly answered in favour of the appellants.
22. Now, adverting to question No.3, it would be noticed that the learned first appellate Court in para No.15 of its judgment observed as under:-
"15. In the present case, one Prem Chand Lambardar has been marked present who, infact identified the parties i.e. Mast Ram, father of the respondent No.1 and 2 as well as Kuldip Chand Sharma- respondent No.3, before the respondent No.2, who attested the mutation Ex.DW4/B on 14-7-1994. Prem Chand Lambardar is not examined by the respondent, as to why Prem Chand Lambardar who is respectable person of the village has not been examined, remained un-explained in the evidence of the respondents No.1 and 2. The trial Court appears to have relied upon the bald statement of the appellant who appeared as PW1 and has concluded that the mutation Ex.DW4/B dated 14-7-1994 was attested fraudulently, by respondent No.4, in favour of the respondent No.3. Merely, because respondent No.3 while appearing as DW1 has stated that there was some deed executed for the exchange does not demolish the stand taken by the respondent because it is an admitted case of the parties that infact there was an oral exchange and no deed of exchange was executed between the parties. A stray admission by respondent No.3 in his cross-examination with ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 23 regard to the execution of an exchange deed is of no consequence. Moreso, when he admitted himself that he was not present at the time of exchange entries got attested in the .
Rapat Rojnamcha Wakiyati Ex.D-2 and even at the time of attestation of mutation Ex.Dw4/B."
23. In answer to question No.2, this Court has already observed that an oral exchange of immovable property worth Rs.100/-
was impermissible. Therefore, the plea of exchange as set up by the defendants was rather not maintainable as no valid title would pass in their favour. That apart, once there was admission by defendant No.3 in his cross examination with regard to execution of exchange deed, then it was incumbent upon defendant No.3 to have produced the said deed or else an adverse inference was required to be drawn. To say the least, the findings recorded by the learned first appellate Court are totally perverse and contrary to law. Accordingly, this question is decided in favour of the appellants.
24. In view of the aforesaid discussion, this Court has no hesitation to conclude that the findings rendered by the learned first appellate Court are not only perverse, but are contrary to law and are, therefore, not sustainable.
25. Accordingly, the appeal is allowed. The judgment and decree passed by the learned first appellate Court on 12.08.2004 are ::: Downloaded on - 04/10/2018 22:57:22 :::HCHP 24 set aside and the judgment and decree passed by the learned trial Court on 24.11.2001 are restored, leaving the parties to bear their own .
costs. All pending applications stand disposed of.
( Tarlok Singh Chauhan )
st
1 October, 2018 Judge
(GR)
r to
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