TaxTMI 
TaxTMI 
2018 (10) TMI 1879
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....Nirmala Devi the same having been procured by misrepresentation of facts and playing fraud. The plaintiffs claimed decree for possession of the land as entered against Khata No. 202, Khatauni No. 294, Khasra No. 846/793/1, situated at Mauja Sughar. It was alleged that the land as entered against Khasra No. 846/793 measuring 0.07.28 hectares at Mohal Sughar is entered in the ownership and possession of the plaintiffs. In the remarks column in red ink a mention has been made about mutation No. 392 as attested in favour of defendant No. 3 Kuldeep Chand to the extent of 0.00.40 hectares and Khasra number has been shown as 846/793/1, as per jamabandi for the year 1993-94. It was alleged by the plaintiffs that no exchange deed was executed between the plaintiffs and defendant No. 3 nor plaintiffs ever were present at the time of attestation of mutations. Since the plaintiffs did not exchange any land with defendant No. 3, therefore, entries in revenue record to this effect were challenged. It was alleged by the plaintiffs that defendants No. 2 to 4 were in connivance with each other and fraudulently the attestation of mutation No. 392 was got manipulated by them and thereby the area of K....
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....92 and 395 were attested in this regard. Defendant No. 3 failed to disclose as to what land was given by him exchange, but plea of oral exchange was raised. Defendant No. 3 claimed that this oral exchange took place through late Sh. Mast Ram, father of the appellants and that Sh. Mast Ram was Special Power of Attorney of the plaintiffs. Defendant No. 3 claimed that the plaintiffs and their father requested defendant No. 3 for exchange of the land for the purpose of passage leading to their house and that exchange had taken place. The defendant No. 3 claimed that he gave 0.00.40 hectares of land to the plaintiffs but no khasra number was disclosed. However, it was submitted by him that area of Khasra No. 846/793/1 was sold by him to defendant No. 4. 6. Defendant No. 4 contested the suit by filing separate written statement whereby she claimed that the plaintiffs entered into oral agreement of exchange the land with defendant No. 3 and that Sh. Mast Ram, father of the plaintiffs being Special Power of Attorney got the mutation attested in favour of defendant No. 3. She had further submitted that mutation of exchange had rightly been attested and claimed that mutation No. 392 was s....
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....he appeal was ordered to be admitted on the following substantial questions of law: 1. Whether the alleged exchange could have been transacted and effected on behalf of the appellants/plaintiffs by their father and that too when the father appears to have not been appointed as attorney of the appellants/plaintiffs? 2. Whether oral exchange of immovable property worth more than Rs. 100/- is permissible? 3. Could the first appellate court have reversed the decree of the learned trial Court based on the reasoning that there was variance between the plea taken in the written statement and the testimony of defendant No. 3 as to the mode of exchange viz. In the written statement it was alleged that there was an oral exchange and in the testimony it was stated that a deed of exchange had been executed? I have heard the learned counsel for the parties and have gone through the material placed on record. 11. I have first refer to substantial question No. 2 as it is a pure question of law which can conveniently be decided without referring to the facts of the case. 12. The issue in question, in fact, is no longer res integra in view of th....
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....cts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.] 2) Nothing in clauses (b) and (c) of sub-section (1) applies to- (i) any composition deed; or (ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or (iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the hol....
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.... 49 of the Registration Act, 1908 reads as under:- "49. Effect of non-registration of documents required to be registered.-No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected by registered instrument.]............" 23. Perusal of aforesaid Section 17 clearly suggests that document/instrument, which intends/purports to create right/title to an immovable property having value of Rs. 100/- should be registered. Similarly, perusal of section 49 of....
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....he world that such a document has been executed. 18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the sai....
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.... inference of law arising out of certain set of facts. If in law, a person does not acquire title, the same cannot be vested only by reason of acquiescence or estoppel on the part of other. 27. It may be true that Respondent No. 1 had constructed some buildings; but it did so at its own risk. If it thought that despite its status of a tenant, it would raise certain constructions, it must have taken a grave risk. There is nothing on record to show that such permission was granted. Although Respondent No. 1 claimed its right, it did not produce any document in that behalf. No application for seeking such permission having been filed, an adverse inference in that behalf must be drawn." (p. 2196) 30. In Satyawan and others v. Raghubir, AIR 2002 Punjab and Haryana, 290, the Hon'ble Court has held as under:- "18. It was submitted that there is no difference between exchange and sale. Except that, in sale, title is transferred from the vendor to the vendee in consideration for price paid or promised to be paid. In exchange, the property of 'X' is exchanged by "A" with property "Y" belonging to "B". In this manner, the property is re....
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.... P-1, whereby, on the basis of oral Azadinama/relinquishment deed, 1/2 share in the suit land has been ordered to be mutated in the name of defendants. 32. In the instant case, in view of aforesaid discussion having been made hereinabove, this Court is of definite view that no reliance, if any, could be placed by first appellate Court on 'Azadinama' Ex. P-1 to conclude that plaintiff had relinquished his 1/2 share in favour of the defendants, more particularly, in the absence of registered relinquishment deed, if any, executed by the plaintiff. Since there was no registered relinquishment deed, mutation attested in favour of defendants, on the basis of Ex. P-1 is/was of no consequence and same could not be taken into consideration by the Court below while holding the defendant to be owners to the extent of 1/2 share in the suit land. 33. Similarly, this Court has no hesitation to conclude that there is/was no authority vested in Gram Panchayat to conduct partition proceedings on the basis of order passed by Deputy Commissioner or A.D.M., Bilaspur, which is admittedly not on record because partition of the land can only be effected by the author....
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....not bind the plaintiffs. 17. What is more shocking is that the first appellate court has in fact cast a negative onus upon the plaintiffs when it observes that the plaintiffs have failed to prove by leading any evidence that their father Mast Ram was not holding a power of attorney and that he was not present at the time when the entries were made in Rapat Roznamcha Ex. D-2 and at the time of attestation of mutation Ex. DW-4/B. What is still more surprising is that he has drawn an adverse inference against non-examination of Mast Ram, who probably by that time had otherwise died. If that was not enough, the first appellate Court qua the presumption regarding mutation entries makes an absurd observation by stating "not only this, mutation entries which are quasi judicial in nature and presumption of truth is always attached the same, unless other proved by cogent, convincing and judicial confidence conspiring evidence. Mutation attestation proceedings cannot be presumed to be otherwise incorrect, untrue." 18. It is settled that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and the right, title and....
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....rved as under: 20. In addition to the abovementioned reason, the contention advanced by the learned counsel appearing on behalf of the respondents that the appellants failed to get the mutation of entries of the suit land incorporated in record shows that there was no intention on their part to act upon the contents of the two sale deeds, cannot be accepted as mere mutation of entries does not confer title upon the deceased respondent no. 1 in the immovable property. In the case of Sawarni v. Inder Kaur 1996 6 SCC 223, this Court held as under: (SCC p. 227, para 7) "7. ......Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment......" 21. In Guru Amarjit Singh v. Rattan Chand 1993 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in re....