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2012 DIGILAW 852 (HP)

Nourang v. Maltu

2012-11-20

KULDIP SINGH

body2012
Judgment Kuldip Singh, J. This appeal has been filed by defendant No.1 against judgment, decree dated 04.11.2000 passed by learned District Judge, Chamba, in Civil Appeal No.53 of 2000, affirming judgment, decree dated 20.03.2000 passed by learned Senior Sub Judge, Chamba, in Civil Suit No.305 of 1996. The respondent No.2 Man Singh has died and his legal representatives have been brought on record. The name of respondent No.4 Titti has been deleted. 2. The brief facts are that respondent No.1 had filed a suit for declaration and injunction against appellant that she was joint owner to the extent of 1/7th share in the land, more specifically, described in the plaint, hereinafter referred to ‘suit land’. The further case of the respondent No.1 was that rapat No.108 dated 23.11.1994 and mutation No.260 dated 28.02.1995 attested by Assistant Collector IInd Grade in favour of appellant be declared illegal, in alternative decree for possession. 3. It has been alleged that respondent No.1 was joint owner in possession of the suit land as per jamabandi 1993-94. The appellant in connivance with revenue staff got mutation No.260 dated 28.02.1995 attested in his favour regarding share of respondent No.1, she never relinquished her share in the suit land in favour of appellant. The respondent No.1 never made a report to the Patwari regarding relinquishment. 4. The suit was contested by appellant by filing written statement. He took preliminary objections of maintainability, estoppel, locus-standi. On merits, it has been pleaded that respondent No.1 is the sister of appellant. The respondent No.1 is married to Musadi and she resides with her husband. The respondent No.1 relinquished her share in favour of appellant. The respondent No.1 herself went to Patwari halqua, made a report about relinquishment of her share in favour of appellant. On the basis of report, mutation No. 260 dated 28.02.1995 was attested in favour of the appellant. He denied his connivance with revenue staff. The appellant asserted his possession on the suit land qua the share of respondent No.1. The other respondents filed written statement and admitted the claim of respondent No.1. 5. The respondent No.1 filed replication and reiterated her case, she denied the case put-forward by appellant. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has relinquished her share in the suit land in favour of defendant No.1 as alleged? OPD-1. 2. 5. The respondent No.1 filed replication and reiterated her case, she denied the case put-forward by appellant. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has relinquished her share in the suit land in favour of defendant No.1 as alleged? OPD-1. 2. If issue No.1 is proved in the affirmative, whether the relinquishment of the share of the plaintiff in favour of defendant No.1 is by fraud etc. as alleged? OPP. 3. Whether mutation No.260 dated 28/2/1995, is illegal as alleged? OPP. 4. Whether the plaintiff is entitled to a decree for possession of the suit land as prayed for? OPP. 5. Whether the suit is not maintainable? OPD. 6. Whether the plaintiff is estopped from filing this suit by her act and conduct? OPD. 7. Whether the plaintiff has no locus-standi to file the present suit? OPD. 7A. Whether rapat dated 23.11.1995 is illegal, null and void as alleged? OPP. 8. Relief. The issues No.1, 4 to 7 were answered in negative and issues No.2,3 and 7-A in affirmative and the suit was decreed by trial Court on 20.03.2000. The respondent No.1 was declared joint owner in possession of 1/7th share in the suit land, rapat No. 108 dated 23.11.1994 and mutation No.260 dated 28.02.1995 were declared illegal. The appeal filed by appellant against judgment, decree dated 20.03.2000 was dismissed by learned District Judge on 04.11.2000, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the learned courts below were right in holding that relinquishment is required to be compulsorily registered under Section 17 of the Indian Registration Act ignoring the provisions of para 8.1(3)(5) and para 8.36-B of the H.P. Land Record Manual? 2. Whether release, relinquishment or surrender is legally required to be reduced in writing and, therefore, compulsorily required to be registered under Section 17 of the Indian Registration Act? 6. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that learned District Judge has erred in returning the finding that relinquishment requires registration under Section 17 of the Indian Registration Act, 1908, (for short Registration Act’). He has submitted that relinquishment was oral, therefore, there is no question of registration of oral relinquishment. The learned counsel for the appellant has submitted that learned District Judge has erred in returning the finding that relinquishment requires registration under Section 17 of the Indian Registration Act, 1908, (for short Registration Act’). He has submitted that relinquishment was oral, therefore, there is no question of registration of oral relinquishment. The learned District Judge has misconstrued and misinterpreted paras 8.1(3)(5) and 8.36-B of the Himachal Pradesh Land Records Manual (for short ‘Manual’). The learned counsel for respondents No.1 and 3 has supported the impugned judgment, decree. 7. The substantial questions of law No.1 and 2 are interconnected, therefore, both are taken collectively for determination. Ex.DW-3/A is copy of roznamcha-vakyati-rapat No.108 indicating that Maltu has relinquished her share in the land comprised in Khata No.18/18 in favour of appellant. Ex.D-1 is the mutation No.260 dated 28.02.1995 of relinquishment mutating the share of respondent No.1 in land comprised in Khata No.18/18 in favour of appellant. Chapter-8 of the Manual is of record of rights. Part-A of Chapter-8 is of record of mutations. The sub-para (3) of para 8.1 of the Manual provides that 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 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. The sub-para(5) of para 8.1 of Chapter-8 of the Manual provides that mutations either based upon oral transaction or registered deed must conform to the provisions of section 38 of the H.P. Land Revenue Act and 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. The Revenue Officers are not competent to refuse mutations based upon oral transactions under the law, if the acquisitions conform to the provisions of section 38, but subject to the exceptions provided. 8. The Revenue Officers are not competent to refuse mutations based upon oral transactions under the law, if the acquisitions conform to the provisions of section 38, but subject to the exceptions provided. 8. The para 8.36-B of Chapter-8 of the Manual deals with ‘Release’ and is as follows:- “8.36-B “Release” is an instrument whereby a person renounces a claim upon another person or against any specified property. It predicates the existence of a claim upon another person or against any specified property, which claim the person, executing the document renounces by a deed of release. The person in whose favour there can be a release, must possess a pre-existing right or interest in the property. A release, in law, may be effected either for consideration or for no consideration. Where one co-owner of a property, by a deed, relinquishes his right to possession and his title in favour of the other co-owner, such deed is a release deed. Subject to the provisions contained under 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 the mutation of release shall be attested by the Revenue Officer if a co-owner relinquishes his whole or any part of his claim(share) in favour of one or other co-owner in a joint ownership either based upon registered deed or oral agreement entered by the patwari on the basis of report made to him under section 35 of H.P. Land Revenue Act. As mentioned under para 8.1(5) supra, the Revenue Officer cannot compel the parties to execute registered deed of Release and Settlement. Mutation can be attested on the basis of oral agreement under section 38 of the H.P. Land Revenue Act, 1954, if otherwise legal.” 9. The Section 35 of the Himachal Pradesh Land Revenue Act (for short ‘Act’’) provides reporting of acquisition of right to the Patwari of the estate and passing of the order by the Revenue Officer. The acquisition of interest other than referred to in sub-section (1) of Section 35 is provided in Section 36 of the Act. The determination of dispute is provided in Section 37 of the Act. The learned counsel for the appellant has relied paras 8.1(3)(5) and 8.36-B of the Manual and contended that joint reading of said paras would show that oral relinquishment is permissible and it does not require registration. 10. The determination of dispute is provided in Section 37 of the Act. The learned counsel for the appellant has relied paras 8.1(3)(5) and 8.36-B of the Manual and contended that joint reading of said paras would show that oral relinquishment is permissible and it does not require registration. 10. The aforesaid submission of learned counsel for the appellant is contrary to the bare language of para 8.36-B which provides “Release is an instrument…..” The instrument has been defined in Section-2(14) of the Indian Stamp Act, 1899, as “Instrument” includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished recorded. In other words, for relinquishment as per para 8.36-B of the Manual instrument is required. The relinquishment extinguishes the right of a person in favour of another person. Once under para 8.36-B of the Manual “Release” or “Relinquishment” requires instrument, therefore, such instrument is compulsorily registerable under Section 17 of Registration Act, if the value of the property is over Rs.100/-. It is not the case of the appellant that value of the land in question at the time of attestation of mutation No.260 was less than Rs.100/-. The legal force of the Manual has not been considered as the same has not been argued on behalf of the appellant. The relinquishment in the present case is not in accordance with the para 8.36-B of the Manual. Therefore, the Revenue Officer erred in attesting the mutation No.260 dated 28.02.1995. The learned District Judge has rightly appreciated the material on record. The substantial questions of law No.1 and 2 are decided against the appellant. 11. In view of above, appeal fails and is accordingly dismissed with no order as to costs.