BHAGAT RAM v. ATMA RAM — 1999 DIGILAW 191 (HP)

JUDGMENT R.L, Khurana, J.—The present second appeal has been directed by the defendant No. 2 against the judgment and decree dated 27.8.1997 of the learned Additional District Judge, Shimla, whereby the judgment and decree dated 30.10.1992 of the learned Sub-Judge 1st Class (2), Shimla, was set-aside and the suit of the respondent No. (1) (plaintiff) was decreed for declaration and injunction. 2. Briefly stated, the facts of the case are these. The plaintiff sometime in the year 1964 orally purchased land measuring 19 Biswas comprising of khasra No. 143 from one Mathu Ram for a consideration of Rs. 800/-. The necessary mutation, being No. 120 was sanctioned in favour of the plaintiff on 21.3.1965. Since after such purchase, the plaintiff is coming in possession of such land as exclusive owner thereof. Sometime in May 1986 the plaintiff came to know that defendant No. 2, who is the real brother of the plaintiff, in connivance with the revenue officials got a mutation being No. 153 sanctioned on 8.2.1970 behind the back of the plaintiff, showing him to be the co-owner of the said land alongwith the plaintiff to the extent of 1/2 share. On the basis of such wrong mutation the defendant No. 2 started interference with the exclusive possession and ownership of the plaintiff. Hence a suit was filed by the plaintiff, inter alia, claiming the following reliefs:— (a) declaration to the effect that the plaintiff is the exclusive owner and in possession of the land in dispute; (b) mandatory injunction directing defendant No. 1, State of H.P., to correct the revenue recod by deleting the name of defendant No. 2 from the column of ownership; and (c) permanent injunction for restraining defendant No. 2 from interfering with the ownership and possession of the plaintiff qua the land in dispute. Defendant No. 1 admitted that the land in dispute was purchased by the plaintiff from Mathu Ram and that necessary mutation in this regard was sanctioned in his favour. It was pleaded that the plaintiff and defendant No. 2 are joint owners and in possession of the land in dispute on the basis of mutation No. 153 sanctioned on 8.2.1970 in the presence of the plaintiff. Defendant No. 2 pleaded that the land in dispute was jointly purchased by him and the plaintiff. However, the plaintiff wrongly got the mutation No. 120 sanctioned in his favour on 21.3.1965. Defendant No. 2 pleaded that the land in dispute was jointly purchased by him and the plaintiff. However, the plaintiff wrongly got the mutation No. 120 sanctioned in his favour on 21.3.1965. On coming to know about such wrong mutation, defendant No. 2 approached the revenue authorities for correction of the revenue record and accordingly mutation No. 153 was sanctioned on 8.2.1970 in the presence of the plaintiff jointly in the name of the plaintiff and defendant No. 2. It was pleaded that the plaintiff and defendant No. 2 are joint owners and in joint possession of the land in dispute in equal shares. Legal objections as to maintainability of the suit, limitation, estoppel, valuation of suit etc. were further raised. 3. Following issues were framed by the learned trial court on the basis of pleadings of the parties:— 1. Whether the plaintiff is exclusive owner of the suit property as alleged? OPP. 2. Whether mutation No. 153 dated 4.11.1969 is null and void as alleged? OPP. 3. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed? OPP. 4. Whether the plaintiff is also entitled for relief of permanent prohibitory injunction? OPP. 5. Whether no notice under Section 80, CPC has been served on defendant No. 1? OPD-1 6. Whether this court has no jurisdiction to try the suit? OPD-1 7. Whether the suit is barred by limitation? OPD 8. Whether the suit is not maintainable? OPD 9. Whether the plaintiff is estopped to file this suit? OPD-2. 10. Whether the suit is not properly valued for purposes of court fee and jurisdiction as alleged? OPD-2. 11. Relief. The learned trial court found issues No. 1 to 4 against the plaintiff. Issues No. 5, 6, 8 and 9 were decided against the defendants while Issues No. 7 and 10 were decided in favour of the defendants. Consequent upon such findings, the suit of the plaintiff was dismissed vide judgment and decree dated 30.10.1992. 4. On appeal having been preferred by the plaintiff, the learned Additional District Judge set aside the findings of the learned trial court on Issues No. 1 to 4, 7 and 10. It was held that the plaintiff is the sole owner and in possession of the land in dispute. Mutation No. 153 dated 8.2.1970 was held to be null and void and not binding on the rights of the plaintiff. It was held that the plaintiff is the sole owner and in possession of the land in dispute. Mutation No. 153 dated 8.2.1970 was held to be null and void and not binding on the rights of the plaintiff. The suit was found to be within limitation and having been properly valued for the purposes of court fee and jurisdiction. Resultantly, the appeal was allowed, the judgment and decree dated 30.10.1992 of the learned trial court were set aside and the suit of the plaintiff for declaration and injunction was decreed as prayed. 5. Feeling aggrieved by and being dissatisfied with the judgment and decree of the learned first appellate court, defendant No. 2 has come up before this court by way of the present second appeal under Section 100, Code of Civil Procedure. 6. The following two substantial questions of law arise in the present case:— 1. Whether mutation No. 153 dated 8.2.1970 was validly attested and sanctioned; and 2. whether the suit as framed is within limitation. I have heard the learned counsel for the parties and have also gone through the record of the case. Question No. 1 : 7. It is the admitted case of the parties that the land in dispute was orally purchased for a consideration of Rs. 800/- from the previous owner Mathu Ram sometime in the year 1964 much before the provisions of Section 54, Transfer of Property Act came to be enforced in the State of Himachal Pradesh, and that the necessary mutation qua such purchase being muation No. 120 Ext. P-2 was sanctioned in favour of the plaintiff on 21.3.1965. The plaintiff thereafter was being shown as the sole owner and in possession of the land in dispute in the relevant revenue record. On 4.11.1969 mutation No. 153 was entered on the basis of report of defendant No. 2 which mutation (Ext. P-3) was sanctioned on 8.2.1970 whereby defendant No. 2 came to be shown as a co-owner of the land in dispute alongwith the plaintiff in equal shares. 8. Section 35(1) of the H.P. Land Revenue Act, 1953 provides:— "Any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a landowner etc. P-3) was sanctioned on 8.2.1970 whereby defendant No. 2 came to be shown as a co-owner of the land in dispute alongwith the plaintiff in equal shares. 8. Section 35(1) of the H.P. Land Revenue Act, 1953 provides:— "Any person acquiring, by inheritance, purchase, mortgage, gift or otherwise, any right in an estate as a landowner etc. assignee of land revenue, or tenant having a right of occupancy, shall report his acquisition of the right to the Patwari of the estate." Sub-section (3) of Section 35 further provides that the Patwari shall enter in his register of mutations every report made to him under sub-section (1) and shall also make an entry therein respecting the acquisition of such right as aforesaid which he has reason to believe to have taken place, and of which a report should have been made to him and has not been so made. Sub-section (5) of Section 35 casts a duty on a Revenue Officer to inquire into the correctness of all entries made in the register of mutations from time to time and also into all such acquisitions coming to his knowledge. The Revenue Officer, under Section 37, is obliged to determine the dispute which may arise during the making, revision or preparation of any record or during the course of enquiry under Section 35(5) of the Act. Vide Section 37(3) of the Act, every direction given by the Revenue Officer pursuant to determination of the dispute, has been made subject to any decree or order which may be subsequently passed by any court of competent jurisdiction, 9. The entry appearing in the remarks column of Ext. P-3 purporting to be the report recorded by the Halqua Patwari in terms of Section 35(1) of the H.P. Land Revenue Act, 1953, reads: "Vide report No. 39 dated 3.10.1969, Bhagat Ram son of Purnu Ram has stated that land comprising of Khasra No. 143 measuring 0-19 bighas is entered in the sole name of Atma Ram. Now the name of Bhagat Ram be also recorded alongwith that of Atma Ram. Therefore, the mutation is submitted for decision." Be it stated that the original report dated 3.10.1969 recorded by the Patwari has not been proved on the record of the present case. 10. Mutation No. 153 (Ext. Now the name of Bhagat Ram be also recorded alongwith that of Atma Ram. Therefore, the mutation is submitted for decision." Be it stated that the original report dated 3.10.1969 recorded by the Patwari has not been proved on the record of the present case. 10. Mutation No. 153 (Ext. P-3) regarding which the report was entered by the Patwari on 3.10.1969 was taken up by the Revenue Officer at Kalyanpur on 8.12.1970 when it was sanctioned and attested. 11. Chapter 8 of the H.P. Land Records Manual (for short, the Manual) deals with the "Record of rights/Paragraphs 8.1(1) to 8.1(4) of the Manual read :— "8.1(1) The mutation Register is prescribed in Sections 34(3) and 35 of the Land Revenue Act for the entry of every acquisition of any right of interest in an estate as landowner, assignee or occupancy tenant, and under Section 35 for disputed acquisition of other rights. The mutation register is not a part of the record of rights and its entries do not share in the presumption of truth attached to that record. All mutations of rights of ownership or occupancy including voluntary partitions, shall be entered by the Patwari in the register when they are reported to him by the transferee as required by Section 35 of the Land Revenue Act, and if not so reported then so soon as they appear to have been acted upon. When he enters a mutation affecting the Shajra Nasb the Patwari sliall note in pencil the number of the mutation against the entry affected. If and when the mutation is sanctioned, he shall amend the Shajra Nasb in red ink in accordance with the mutation order. (2) The provisions of Sections 54, 107 and 123 of the Transfer of Property Act were made applicable in H.P. Vide Deputy Secretary (Rev.) to the Government of H.P. letter No. 17-13/66 Revision 1, dated 6.1.1971 whereby registration of sale (Section 54) lease (Section 107) and gift (Section 123) have been made compulsory. In the case of acquisition of rights of such nature, the patwari will enter mutation on the basis of registration memorandum or registered deed. In the case of acquisition of rights of such nature, the patwari will enter mutation on the basis of registration memorandum or registered deed. (3) Other acquisitions of rights or interests based upon oral transactions i.e. without registration shall be entered in the register of mutation by the patwari when reported to him under Section 35 of the Act ibid i.e. acquisitions through Release, Settlement, Mortgage with possession, Exchange and creation of tenancy etc. but subject to the provisions contained in Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 and Section 3 of the H.P. Transfer of Land (Regulation) Act, 1968 read with paras 18.24, 18.25, 18.26 and 18.29 infra. (4) The Revenue Officer shall attest such mutations based upon oral transactions in the presence of the parties in accordance with the provisions of Section 38 of H.P. Land Revenue Act, 1954 in case the acquisitions are otherwise legal." 12. A bare reading of the above provisions shows that mutation is to be entered in respect of acquisitions through release, settlement, mortgage, exchange, sale, and creation of tenancy rights. In the present case the report entered by the Patwari does not relate to acquisition of right in the land in dispute in any of the abovesaid mode. The defendant No. 2 had just asked that his name be entered as owner of the land in dispute alongwith the plaintiff. There is nothing in Ext. P-3 to suggest as to how the defendant had acquired any interest in the land in dispute. 13. It may be stated that the mutation Ext. P-3 was not sanctioned in supresession of the previous mutation Ext. P-2. Nor the same appears to have been sanctioned and attested by way of review of the previous mutation Ext. P-2. Technically speaking, mutation Ext. P-3 appears to have been attested and sanctioned in order to correct the mistake appearing in the previous mutation Ext. P-2. 14. Admittedly, the entries in favour of the plaintiff stood incorporated in the jamabandi on the basis of mutation Ext. P-2 prior to attestation of mutation Ext. P-3. Paragraph 8.54 of the Manual provides that when an entry has been incorporated in the jamabandi, a mutation should not be entered up or sanctioned for the purpose of correcting it except to correct a clerical error or in consequence of a patent fact. P-2 prior to attestation of mutation Ext. P-3. Paragraph 8.54 of the Manual provides that when an entry has been incorporated in the jamabandi, a mutation should not be entered up or sanctioned for the purpose of correcting it except to correct a clerical error or in consequence of a patent fact. The aggrieved party has to seek his remedy by way of suit. 15. Therefore, if the defendant No. 2 was aggrieved by the mutation Ext. P-2 and consequential entries in the jamabandi,. the only course open to him was to file a suit. Mutation Ext. P-2 and the consequential entries could not have been corrected by another mutation like Ext. P-3. 16. Paragraph 8.15 of the Manual further provides that the status of a landowner cannot be altered except:— (a) by agreement of all the parties; or (b) in consequence of a decree or order which is binding on the parties; or (c) in accordance with facts proved or admitted to have occurred in terms of Section 38 of the H.P. Land Revenue Act, 1953. 17. None of the above conditions is applicable to the facts of the present case. No agreement between the parties has been proved. Admittedly, there is no decree or order of a competent court inter se the parties. Nor there is any thing to suggest that the change was effected in accordance with facts proved or admitted to have occurred in terms of Section 38 of the H.P. Land Revenue Act, 1953. The Revenue Officer could not have reviewed the earlier mutation Ext. P-2 in order to change the status of the plaintiff as sole owner of the land in dispute to that of a co-owner with defendant No. 2, without obtaining the prior approval and sanction of the competent authority. Admittedly, no such approval and/or sanction for the review of the earlier mutation Ext. P-2 was obtained. 18. Mutation Ext. P-3, therefore, not being in accordance with law is null and void and not binding on the rights of the plaintiff. The question is answered in the negative. Question No. 2 : 19. It is contended on behalf of defendant No. 2 that the present suit is barred by time since the same has not been filed within the period prescribed under Article 100 of the Limitation Act, 1963. The question is answered in the negative. Question No. 2 : 19. It is contended on behalf of defendant No. 2 that the present suit is barred by time since the same has not been filed within the period prescribed under Article 100 of the Limitation Act, 1963. It is contended that before the plaintiff can be declared to be the exclusive owner of the land in dispute, the mutation Ext. P-3 has got to be set-aside. 20. There is no merit in the contention of the learned Counsel for defendant No. 2. It is well settled that mutation does not confer title. Therefore, mere sanction and attestation of mutation will not furnish a cause of action. The cause of action will be deemed to have arisen to the plaintiff when there is a threat to his title. The plaintiff has averred in his plaint that the defendant No. 2 started interfering with and denying his title only since May, 1986. Therefore, the suit having been filed within three years therefrom for declaration of title is within time. 21. Even otherwise, the mutation Ext. P-3 having been sanctioned without jurisdiction by way of review and/or correction of earlier mutation is not required to be set-aside since the same is void ab initio. It is, therefore, held that the suit is within time. The question is answered in the affirmative. Final order : As a result, the present appeal fails and the same is accordingly dismissed. The judgment and decree of the learned first appellate court are affirmed. No orders as to costs. Appeal dismissed.