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2005 DIGILAW 144 (PNJ)

Chanan Singh v. Financial Commissioner Appeals I

2005-01-27

N.K.SUD, SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. In this writ petition, petitioner Chanan Singh has challenged the orders dated 25.9.2000, 25.6.2001, 19.6.2002 and 30.1.2003 passed by the Assistant Collector, 1st Grade, District Collector, Commissioner and Financial Commissioner, Appeals-1, Punjab, respectively, vide which the afore-said authorities have declined to sanction the mutation of the land in dispute in favour of the petitioner, which he had purchased by registered sale deed dated 24.9.1993, on the ground that the said sale deed was of specific khasra numbers and the possession of the land has not been transferred to the petitioner. 2. The brief facts of the case are that one Smt. Balbir Kaur was co-sharer to the extent of 1/3rd share in the joint land measuring 67 Kanals 17 Marlas along with her husband and her son. Vide registered sale deed dated 24.9.1983, she had sold 3 kanals 10 marlas of land to the petitioner which was less than her share. She had sold the aforesaid land in specific khasra number which was in her possession. On the basis of the said sale deed, the petitioner filed an application before the revenue Patwari for entering his name in the revenue record by sanctioning the mutation. The revenue Patwari instead of entering the mutation by specific khasra number in accordance with the aforesaid deed, has entered the mutation of a share in the joint holding. 3. Respondent No. 5, who was the son of the vendor, contested the said mutation. Thereupon, the matter was referred to the Assistant Collector 1st Grade, who vide its order dated 25.9.2000 declined to sanction the mutation in favour of the petitioner on the ground that the sale was of a specific khasra number and no possession was transferred in favour of the vendee. The said order was affirmed by the Collector as well as Commissioner. The said order was affirmed by the Collector as well as Commissioner. Thereafter, the petitioner filed a revision before the Financial Commissioner, which was also dismissed vide order dated 30.1.2003 while holding that though the mutation regarding the ownership could be sanctioned without transfer of actual physical possession in favour of the vendee but still the revision petition was dismissed by him by recording the following reasons:- "On going through the mutation sheet, it is observed that instead of entering the mutation strictly in accordance with the sale deed, the Patwari has converted the area of the specific khasra numbers listed therein into a share in the joint holding. The Patwari had no business to do so, and it is surprising that the lower Revenue Officers have allowed this to pass unremarked. There is, however, no dispute with the proposition that a fresh mutation may be entered and taken up for sanction if the vendor executes a corrigendum so that the sale deed shows sale of a share in the joint holding instead of sale of specific Khasra Nos. This petition under Section 16 of the Punjab Land Revenue Act, 1887 is disposed of accordingly." Hence this petition. 4. As far as the factual position is concerned, the same has not been disputed. Undisputedly, Smt. Baljit Kaur, vendor of the petitioner was a co-sharer in the joint land to the extent of 1/3rd share. Vide registered sale deed dated 24.9.1993, she had sold 3 kanals 10 Marlas of land to the petitioner which was less than her share. It is also correct that the sale in question was made with reference to specific khasra number and as per the sale deed, the vendor delivered possession of the said portion of khasra number which was in her exclusive possession. However, undisputedly, in he revenue record, the possession of all the co-sharers was recorded as joint. The execution of the said sale deed is not disputed. Rather, the same has been duly proved on the record. The revenue Patwari had entered the mutation of the share sold and not of the specific khasra numbers. The said mutation was not sanctioned by the Assistant Collector 1st Grade, Collector and Commissioner on the ground that possession of the purchased land was not transferred in favour of the vendee. Therefore, the mutation cannot be sanctioned. 5. The revenue Patwari had entered the mutation of the share sold and not of the specific khasra numbers. The said mutation was not sanctioned by the Assistant Collector 1st Grade, Collector and Commissioner on the ground that possession of the purchased land was not transferred in favour of the vendee. Therefore, the mutation cannot be sanctioned. 5. The Financial Commissioner has rightly held that a mutation can be sanctioned on the basis of the registered sale deed even if possession has not been transferred in accordance therewith. But he has observed that the revenue Patwari had committed illegality while entering the mutation of the share when the sale deed was with respect to specific khasra number. He has further observed that a mutation with respect to a share in this case could have been sanctioned only after the vendor gets a correction in the sale deed to the effect that vide that sale deed, a share of the joint holding was sold instead of share of specific khasra number. 6. In our view, the above observations of the learned Financial Commissioner are not correct. A Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204 has held that a share of a specific portion of the land described by particular khasra numbers by a co-owner out of the joint khewat would be a sale of share out of the joint land. When a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. The Full Bench further observed as under:- "5. The Full Bench further observed as under:- "5. The rights of transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of Property Act which provides that where one or two or more co-owners of the immovable property legally competent in that behalf transfers his share of such properly or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. Again it cannot be disputed that when a co-sharer is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a co-sharer and all the other co-sharers continue to be in its constructive possession. By the transfer of that land by one co-owner, can it be said that other co-sharers cease to be co-sharers in that land or to be in its constructive possession. The answer obviously would be in the negative because any of the other co-sharers can either seek a declaration from the Court as held in Sukh Devs case (A.I.R. 1940 Lah. 473) (supra) that the vendee is in possession only as a co-sharer or can initiate proceedings for partition of the joint holding including the land transferred. If the other co-sharers continue to be co-sharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding. If the other co-sharers continue to be co-sharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding. That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, A who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers X and Y which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can be claim its possession from other co-owners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled to 10 bighas of land out of the share of his vendor at the time of partition or prior thereto to a decree for joint possession to the extent of the land purchased by him. Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the co-owners." 7. In view of the afore-said position of law, in our view, the revenue Patwari had rightly entered the mutation regarding the sale of a share in the joint holding and not by specific number. In our view, it was not necessary for the vendor to get the sale deed corrected to show that the sale was of a share of the joint holding instead of a sale by specific khasra numbers. The revenue authorities have committed illegality while not sanctioning the mutation which was entered into by the Patwari. It is well settled that the mutation does not create a title. It only recognises the rights of the parties to update the revenue record. The basis of the title of the petitioner is registered sale deed dated 24.9.1993, the validity of which has not been disputed. It is well settled that the mutation does not create a title. It only recognises the rights of the parties to update the revenue record. The basis of the title of the petitioner is registered sale deed dated 24.9.1993, the validity of which has not been disputed. In our view, the illegal refusal to sanction mutation caused serious prejudice to the rights of the petitioner because without getting himself recorded as co-owner of the suit land in the revenue record, he cannot get the land partitioned to get physical possession of the same. Thus, in our view. The mutation of share purchased by the petitioner, as entered by the Patwari, should be sanctioned by the revenue authorities. 8. In view of the above, this writ petition is allowed. The impugned orders dated 25.9.2000, 25.6.2001, 19.6.2002 and 30.1.2003 passed by the Assistant Collector, 1st Grade, District Collector, Commissioner and Financial Commissioner, Appeals-1, respectively, are set aside and the mutation as entered by the Patwari regarding the share of the land purchased by the afore-said sale deed is sanctioned.