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2005 DIGILAW 1397 (RAJ)

Kan Singh v. Ratan Singh

2005-05-09

R.N.ARVIND

body2005
ARVIND, MEMBER–This revision presented under section 84 of the Rajasthan Land Revenue Act, 1956 (in brief ``the Act) of learned Addl. Divisional Commissioner, Udaipur dated 17.9.97 in case no. 29/97. (2). Briefly, the facts of this case are that in village Gugali Tehsil Amet Distt. Rajsamand old khasra No. 254 was registered as a well. Present Khasra number of this well is 336. Out of this khasra number 2/3 part has been sold by Bhim Singh to the petitioner and the rights were given by the registered deed in the year 1992. Since then the petitioner is irrigating his land out of this well since 1992 and the mutation to that effect has been decided. This mutation number is 201, dated 3.12.99. This mutation has not been challenged in any court through nay appeal or revision. In a different case non-petitioners No.2, 3 and 4 in the Court of Sub-Divisional Officer, Rajsamand against an earlier mutation No. 123 dated 15.1.69 against the order of Gram Panchayat, Aidana by which this mutation No. 123 was sanctioned. Learned Sub-Divisional Officer, Rajsamand by his order dated 31.3.97 rejected the appeal saying that the appeal has been presented after a lapse of more than 25 years. Against the order, non-petitioner No.1 went into appeal to the learned Addl. Divisional Commissioner Udaipur who remanded the case to learned Sub-Divisional Officer. Learned Sub-Divisional officer, Rajsamand again heard the appeal and rejected the appeal of non-petitioner no.1. Against this order of learned Sub-Divisional Officer, Rajsamand, non-petitioner No.1 went into appeal to the learned Addl. Divisional Commissioner, Udaipur who not only accepted the appeal of non-petitioner No.1 but at the same time ordered that mutation no. 201 dated 3.12.92 be cancelled. The present revision is against this order of learned Addl. Divisional Commissioner, Udaipur. (3). Throwing light on the contents of the revision petition learned counsel for the petitioner says that the appeal pending before learned Addl. Divisional Commissioner was regarding mutation No. 123 dated 15.1.69 and there was not appeal pending against mutation No. 201 dated 15.1.69 and there was no appeal pending against mutation No. 201 dated 3.12.92. By ordering cancellation of mutation no. Divisional Commissioner was regarding mutation No. 123 dated 15.1.69 and there was not appeal pending against mutation No. 201 dated 15.1.69 and there was no appeal pending against mutation No. 201 dated 3.12.92. By ordering cancellation of mutation no. 201, learned Addl., Divisional Commissioner, Udaipur has not only exceeded his jurisdiction but has also violated the principle of natural justice because there was no matter pending against this mutation and there were no discussions or any opportunity given to the opposite party to defend their position regarding mutation No. 201. The counsel for the petitioner argued that the interests in the well were transferred by a registered deed in the year 1992 and on the basis of that registered deed mutation no. 201 was opened and learned Addl. Divisional Commissioner relied that by the earlier transfer of the year 1969. The khatedar Bheem Singh had already sold out the interests in the well of the khasra number stated above and the second sale deed was void. By doing so learned Addl. Divisional Commissioner, Udaipur has exceeded his jurisdiction because any decision on a sale deed can be given by a competent court in a suit and such a decision cannot be made in a matter of mutation. The land is same, the well is same, the parties are same and the matter in issue is same and in such circumstances the learned Addl. Divisional commissioner has erred in reaching to the conclusion that the sale of 1969 was relevant for mutation of the matter in issue and the transfer of 1992 was void. He argued that the earlier sale deed only permitted the use of well for irrigation and did not sell the interests in the well and by not differentiating this learned Addl. Divisional Commissioner has passed an order which is erroneous and improper. The report of the Naib Tehsildar clearly reveals our claim which the learned Addl. Divisional Commissioner had not reason to reject. The appeal by the non-petitioner No.1 was presented after a lapse of 26 years and this long delay of the mutation cannot be condoned. He referred 1980 RRD page 222 and argued that by entertaining an appeal of mutation after 26 years a gross violation of norms of justice has took place. Divisional Commissioner had not reason to reject. The appeal by the non-petitioner No.1 was presented after a lapse of 26 years and this long delay of the mutation cannot be condoned. He referred 1980 RRD page 222 and argued that by entertaining an appeal of mutation after 26 years a gross violation of norms of justice has took place. He also argued that if the non-petitioners have any grievance against the sale deed of the year 1992 they should approach a competent court in a suit and not get the mutation of 1969 re-opened after a lapse of 26 years. (4). Replying to the arguments, learned counsel for the non- petitioners argued that Shri Bhim Singh sold the disputed land on 12.8.69 and he also sold the interests in the well but the khasra number of the well, i.e. 246 was not entered in the mutation by mistake Shri Bhim Singh took advantage of this mistake and he sold the interests in the said well again to the petitioner. He argues that it was the duty of the petitioner to take care before any purchase of any property and as per the principle of CAVEAT EMPTOR he is not entitled for any relief. He also argued that since the matter of limitation has been considered by the lower courts, the matter of limitation cannot be agitated at this level in the revision petition. He also argued that by the earlier order learned Sub-Divisional Officer did not decide the matter on merits. On the second time also when the case was remanded he did not go into the details and he issued his order without logically deciding the issue. He also argued that the subsequent sale is a nullity and the mutation no. 201 is a nullity. (5). Having heard arguments of both the sides, having seen the record and having carefully considered the reference of the decision of Honble Supreme Court, I have reached to the following conclusions: (a) That the earlier sale deed took place in the year 1969 and the second sale took place in the year 1992. (b) That the dispute regarding the claim of the sale of the disputed property cannot be decided in a mutation specially in the circumstances where one party gets awakened to its claim after a lapse of 26 years. (b) That the dispute regarding the claim of the sale of the disputed property cannot be decided in a mutation specially in the circumstances where one party gets awakened to its claim after a lapse of 26 years. That the principle of CAVEAT EMPTOR is not relevant because no person with a normal prudence is expected to go into the records of such a long history of a lapse of 26 years and any prudent man would like to took into the current documents or at the most go into the history of the property for about 5-10 years. (c) If the non-petitioner has any claim to be settled he cannot get this relief in a mutation by getting the mutation re- opened after a lapse of 26 years. It would be against the norms of rationality reasonableness and proportionality to re-open a mutation which was opened and decided on the instances of the non-petitioners before more than 25 years and the same person getting the mutation re-opened and getting it decided as per his choice is too much to ask. (d) It is not proper to declare a sale deed as a nullity without examining the matter in a proper suit is a competent court. Mutations are fiscal proceedings and such basic issues cannot be decided in a mutation. By making an order to this effect learned Addl. Divisional Commissioner, Udaipur has not only exceeded the jurisdiction but he has also attempted to take over the jurisdiction but he has also attempted to take over the jurisdiction of a Presiding Officer sitting in a court to decide a suit. (e) Appeal pending before learned Addl. Divisional Commissioner, Udaipur was regarding mutation no. 123 of 1969 and by accepting the appeal he ordered cancellation of mutation no. 201 of 1992. This act of learned Addl. Divisional Commissioner, Udaipur violates cannons of justice and hid attempt is highly unacceptable. (6). In view of the discussions above I find that the order dated 17.9.97 of learned Addl. Divisional Commissioner, Udaipur is not only erroneous but it is beyond his jurisdiction and also this order is lacking reasonableness, propriety and proportionality. (7). I, therefore, accept this revision, set aside the order of learned Addl. Divisional Commissioner, Udaipur dated 17.9.97. Pronounced.