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2011 DIGILAW 1623 (RAJ)

Mahendra Kumar v. Board of Revenue

2011-08-08

DALIP SINGH

body2011
JUDGMENT 1. - The petitioner by this writ petition has made the prayer for quashing and setting aside the order of learned Board of Revenue dated 13.02.2006 (Annexure-7) as also the judgment dated 14.07.2000 (Annexure-6) passed by the learned Additional Divisional Commissioner, Jaipur and the order dated 20.04.1999 (Annexure-5) passed by the Additional Collector, Alwar and the order dated 27.02.1998 (Annexure-4) passed by the learned Tehsildar. 2. The relevant facts are that the petitioner and the respondent No.2 Sanwant entered into an agreement for sale in the year 1980 for the sale of agricultural land, as mentioned in the agreement. The petitioner filed a suit for specific performance of the said agreement which ultimately came to be decreed in favour of the petitioner and the decree was confirmed vide order of the Hon'ble Supreme Court dated 17.03.1997 and the S.L.P. filed by the petitioner against the judgment and decree dated 28.09.1986 in the second appeal was dismissed. 3. As stated above, the agreement for sale was executed on 02.12.1980. Thereafter, the respondent No.2 having taken a loan from the respondent No.3-Bank mortgaged the land in dispute on 05.12.1995 during the pendency of the suit despite the fact that the decree by the learned Civil Court had been passed on 07.12.1987 in favour of the plaintiff-petitioner. Since a decree for specific performance had been granted in favour of the plaintiff-petitioner, the petitioner put the decree to execution and the learned Civil Court executed the sale-deed in favour of the petitioner on 13.11.1997 and the decree dated 07.12.1987 passed by the learned trial court stood executed so far as the execution of the sale-deed in favour of the petitioner is concerned with registration of the sale-deed in Execution in 1997. The petitioner applied for necessary mutation based upon the aforesaid sale-deed in his favour before the Tehsildar. Since in the year 1995, the land had been mutated and mortgaged in favour of the respondent No.3-Bank had been entered in the revenue records after land was mortgaged by the defendant-judgment debtor in 1995 despite the decree having been passed in 1987 against him, the application filed by the petitioner for recording the name of the petitioner in the record of rights was rejected. It was rejected right upto the Board of Revenue and hence, this writ petition. It was rejected right upto the Board of Revenue and hence, this writ petition. Initially, the objections of the Bank were that until and unless the mortgage is redeemed and the loan amount taken by the respondent No.2-Sanwant, the judgment debtor, is repaid, the land cannot be free from encumbrance and, therefore, the mutation entries cannot be allowed to be made in favour of the petitioner. 4. It is not disputed that during the pendency of the writ petition in the year 2009 the respondent No.2 Sanwant repaid the entire dues against him for the loan taken by him in the year 1995 for which the land had been mortgaged in favour of the respondent No.3-Bank. Despite the fact that the Bank was party in the mutation proceedings filed before the Tehsildar, Collector, Divisional Commissioner and Board of Revenue, as would be evident from the impugned orders placed on record, the Bank again in the year 2009 after the entire loan having been repaid to the respondent No.3-Bank by the respondent No.2, judgment debtor as admitted by the respondent No.3-Bank, issued agricultural credit card to the respondent No.2 based upon the land being in the name of the judgment debtor and now as a result of the dues against the respondent No.2 on account of the aforesaid credit having been advanced on the basis of agricultural credit card, the respondent No.3-Bank is again opposing the mutation entries to be made in favour of the petitioner saying that it has a charge over the land on account of the credit having been advanced to the judgment debtor. 5. I have considered the aforesaid submissions. Since the respondent No.3-Bank was all the time aware of the fact that the petitioner has a decree in his favour granted by the competent civil court in the year 1987 which has been upheld right upto the Hon'ble Supreme Court and the appeal had been dismissed in year 1997 accordingly the civil court being the executing court executed the decree and executed the registered sale-deed dated 13.01.1997 in favour of the petitioner. Even assuming that without bringing it to the knowledge of the respondent No.3-Bank the fact of agreement to sale of the year 1980 and the decree being passed in 1987 in the suit for specific performance of the contract by the respondent No.2, the loan was advanced by the respondent No.3-Bank to the respondent No.2 and the property was mortgaged in favour of the respondent No.3-Bank, the bank was a bona fide mortgagee having a charge over the property when it advanced the loan in 1995, however, subsequently after the proceedings were initiated for getting the mutation entries in favour of the petitioner-decree holder and those proceedings having started in the year 1997 onwards to the knowledge of the respondent No.3-Bank, in the year 2009 after the entire loan amount was repaid by the judgment debtor there was no occasion for the respondent No.3-Bank to have again granted the credit facility on the basis of the agricultural credit card to the judgment debtor on the strength of the land being in the name of the judgment debtor. That was the risk, which the respondent No.3-Bank had taken when it was within the knowledge of the respondent No.3-Bank that the land had already been sold in favour of the decree holder-petitioner by the court in execution of the decree in the year 1997 and sale-deed executed thereby extinguishing all rights of the judgment debtor in the said land. On the basis of the above facts, it cannot be said that the respondent No.3-Bank now as a result of the subsequent transaction entered into in the year 2009 has any right over the land in dispute so as to deny the right of the petitioner to get the land entries made in his favour in pursuance of the execution of the decree. There was no occasion for the bank to have again granted loan/credit facility to the judgment debtor on the basis of his extinguished rights in the land and to oppose the prayer of the decree holder now for not permitting the mutation entries to be carried out in favour of the petitioner. The Bank has been negligent and for the negligence of the Bank the petitioner-decree holder cannot be made to suffer. 6. The Bank has been negligent and for the negligence of the Bank the petitioner-decree holder cannot be made to suffer. 6. In view of these changed circumstances, since the entire loan amount on the basis of which the land was mortgaged in favour of the respondent No.3-Bank by the judgment-debtor-respondent No.2 and the said loan account having been cleared in the year 2009, there is no impediment so far as the decree holder for getting the land mutated in his favour, though the said mortgage had been entered into by the defendant-judgment debtor after the decree passed in favour of the petitioner in 1987. 7. Accordingly this writ petition is allowed. The application of the petitioner for carrying out necessary mutation entries is also allowed and the charge of the Bank cannot come in the way of the petitioner who will take the land free from all encumbrances. The respondent-Tehsildar is directed to carry out the necessary mutation entries in favour of the petitioner in accordance with the decree passed in his favour.Petition Allowed. *******