Amrik Singh vs Manjit Singh

K.S. Janjua, FC.

Two revision petitions referred above under Section 16 of the Punjab Land Revenue Act, 1887 have been filed against the orders of the Commissioner, Jalandhar Division (17.2.97) through which the Commissioner upheld the orders of the Collector (30.9.96).

In brief, the facts of this case are that ACI sanctioned Mutation Nos. 3226 and 3227 on the basis of two sale deeds executed by two landowners who were cosharers in the joint holding with other landowners with regard to the land situated in village "Singh", Tehsil Jalandhar. The only point agitated by the counsel for the petitioner, before all the three courts, was that mutation could not be sanctioned unless the physical possession is delivered to the vendees.

The contention of the respondents in this case was that the land in question belonged to 5 brothers jointly, out of which, two brothers sold their 1/5th share each through separate sale deeds and there is a recital in the sale deed that possession was delivered to the vendees. The respondents further submitted that being the coowners in the joint holding, they were fully competent to dispose of their shares.

The sanctioning of the mutation was hotly contested primarily on this issue that possession on the spot was never delivered to the transferees and as such mutation could not be sanctioned. However, ACI overruled the contention raised by the petitioner, since in the present case it is the co sharers who have sold their shares in the joint khata. The vendees have stepped into the shoes of the vendor and they become cosharers with other cosharers qua the land they have purchased. With regards to the possession it is for the vendees to seek recourse to the provisions of law and whatsoever decision would be recorded by the courts would be implemented. In the mutation proceedings, the role of the Revenue Officer is to update the revenue record and not to find out, whether a party was in actual possession of the land they have purchased. Delivery of the possession has no effect, especially in the case where a cosharer has parted with his share. In view of these findings, the ACI sanctioned the mutations (26.7.96). The Collector on appeal upheld the observations recorded by ACI and dismissed the appeals filed by the petitioner.

Feeling aggrieved against the order of the Collector the petitioner filed two revision petitions before the Commissioner who also upheld the findings recorded by ACI and of the Collector. Feeling dissatisfied against the order of the Commissioner (17.2.97) the present revisions have been filed.

The aforesaid revision petitions were listed for hearing on 15.9.97 on which date both the counsel for the parties addressed their arguments and thereafter the case was listed for orders on 22.9.97. However, being busy with administrative work, the orders could not be announced on 22.9.97 and the case was posted, for orders for 29.9.97.

I have carefully considered the arguments addressed by both the counsel and have gone through the documents placed with the revision petition. The main thrust of the counsel for the petitioner was that possession over the land sold by the vendor is a prerequisite before sanctioning the mutation by the revenue officer. To support his views he referred to Sections 34 to 37 of the Punjab Land Revenue Act coupled with para 7.17 of the Punjab Land Records Manual. He also cited few rulings as reported in 1991 PLJ 219, 1990 PLJ 491.

The counsel for the respondents has submitted that facts of this case are completely distinguishable and as such are not covered by the rulings cited by the counsel for the petitioner. Counsel for the respondents submitted that salient point in this case is that two cosharers have sold their share in favour of vendees and transferees have come in the foot steps of transferor as such mutations be sanctioned to update the revenue record.

I am in full agreement with the submissions made by the counsel for the respondents that the facts of this case are completely distinguishable, than the one reported in the ruling cited by the counsel for the petitioner. In this case there are five brothers who were cosharers in equal parts in the joint holding. The two cosharers have sold their part of share in favour of vendees, with the result that vendees have come into the place of their vendors. With regard to passing over the possession it is immaterial in this case, since the very concept of the revenue law, is to update entries in the revenue record. It is in this background, that when a person has purchased a land then his name should be reflected in the revenue record. He may seek possession under due process of law. It is the prime duty of the revenue officer that whoever is the rightful owner, his name should be reflected in the revenue record. It is in this background that all the three courts have come to a concurrent findings that in this case it is cosharers who have sold their respective shares from the joint holding and the possession part is not prerequisite for sanctioning the mutation as all the cosharers are deemed to be in possession. I find support to this view from the authority as reported in 1996 PLJ 15 wherein it is recorded that "Revenue Record should be kept update and this is one of the basic purposes of mutation".

Another point that needs clarification is whether the actual physical possession has to be delivered by the cosharers to the vendees. Para 7.17 of the Punjab Land Records Manual reads as follows :

"Except in cases of entries collateral mortgages in column 12 of the jamabandi, the patwari should also ascertain whether possession has passed and a mutation of transfer by gift, sale or mortgage should not be attested unless (a) possession is proved to have actually passed, or (b) the parties all agree before the attesting officer that possession has passed, or (c) the parties have all agreed in a registered document that possession has passed. A possession should not be refused merely because it is claimed that the aliener has no right by custom or statue to make such an alienation. Such a transaction is a `fact'' until it is set aside in due course of law."

Here, two cosharers who perhaps are not in actual physical possession have sold their respective shares to the vendees. If they were in actual physical possession with other cosharers the position is very clear. If they were not, even then they are deemed to have been in possession because the possession by one cosharer is considered as the possession of all the co sharers. The cosharers cannot be deprived of their right to sell their share just because they were not in actual physical possession. If we interpret the law as urged by the counsel for the petitioner, it will not be possible for cosharer to sell his share of land unless he gets the land partitioned. This interpretation of law would give an additional uncalled for advantage and leaverage to the cosharers who were in possession qua other cosharers who were not in possession. The subsequent vendees step into the shoes of erstwhile cosharers, the position on the ground remains the same and the symbolic transfer of possession is deemed to have taken place. In such transaction, the term `possession'' should include symbolic possession. If the Punjab Land Records Manual requires amendment, the same should be done.

To fortify this reasoning further it is very clearly mentioned in Para 7.17 of Punjab Land Records Manual that if the `parties have all agreed in a registered document that possession has passed'' the mutation should be attested. In the instant case this has been stated and agreed to in the sale document. The Revenue Officers should accept this (transfer of possession be it symbolic) to have taken place and proceed accordingly.

In view of the concurrent findings recorded by the three courts, I dismiss both the revision petitions. Since the facts and parties in both the revision petitions are the same, as such, a copy of this order be placed on the case file of other case.

Announced.