Bhopal Singh vs Chandgi and Others

Rakesh Kumar Jain, J.—This appeal is filed by defendant No. 5 against the judgment and decree of the lower Appellate Court by which suit filed by the plaintiffs has been decreed and defendants No. 13 and 2 have been directed to incorporate the mutations in terms of the sale deeds Ex. P1 and Ex. P2 in the concerned record of rights. The plaintiffs filed suit for mandatory injunction alleging that the land comprised in killa No. 39/11, measuring 08 kanals 00 marla, situated in the revenue estate of village Asadpur, Tehsil and District Sonepat was earlier owned by the plaintiffs, Ishwar & Bhopal Singh, sons and Piari, widow of Chander. Defendants No. 4 to 6 sold the aforesaid land to defendant No. 3 for Rs. 4,500/- vide sale deed No. 3547 dated 15.01.1975 (Ex. P2) and defendant No. 3 further sold the aforesaid land to the plaintiffs in equal shares for a sum of Rs. 4,500/- vide sale deed No. 1025 dated 17.06.1976 (Ex. P1). The plaintiffs thus allegedly became owners in possession of the suit land and were entitled to get the same mutated in their favour in the revenue records.

The case of the plaintiffs is that they had requested the defendants No. 1 and 2 many a times to enter and sanction mutation of the aforesaid land in their favour but to no avail and hence, the present suit for mandatory injunction has been filed.

Defendants No. 5 and 6, namely, Bhopal Singh and Piari filed their written statement averring that the Civil Court had no jurisdiction to try and entertain the suit. On merits, it was averred that defendants No. 4 to 6 and plaintiffs were not the owners of the land comprised in killa No. 39/11(8-0) rather the plaintiffs, defendants No. 4 to 6 along with other persons are co-sharers of the suit land and some other land and after the death of Ishwar, his legal heirs have stepped into his shoes and all such persons are in joint possession of the said land. It was also averred that defendants No. 4 to 6 did not sell the aforesaid killa number 39/11(8-0) to Ram Singh S/o. Kundan on 15.01.1975 because they were not the owners of the said land and had no title to execute the sale deed and in case the aforesaid land has been sold by defendant No. 3 to the plaintiffs on 17.06.1976, the said sale deed is illegal as there is no sale deed dated 15.01.1975 in favour of defendant No. 3 alleged to have been executed in his favour by defendants No. 4 to 6 as they had neither received any sale consideration nor thumb marked the said document. It was also denied that the plaintiffs have any right to get the mutation sanctioned in their favour on the basis of sale deed dated 17.06.1976. Finally, it was averred that the sale deed dated 15.01.1975 (Ex. P2) in favour of defendant No. 3 and sale deed dated 17.06.1976 (Ex. P1) in favour of the plaintiffs are illegal, null and void and are not binding on the rights of defendants No. 4 to 6. In the counterclaim, they had prayed that both the sale deeds be declared null and void having not been signed or thumb marked by them.

The plaintiffs filed replication to the written statement denying the assertions made therein and reiterated the stand taken by them in the plaint.

On the basis of the pleadings of the parties, following issues were framed by the Trial Court on 30.08.2005:-

"1. Whether defendants No. 1 and 2 are liable to enter and sanction mutation of suit land in favour of plaintiffs on the basis of registered sale deed No. 1025 dated, 16.06.1976/17.06.1976? OPP.

Whether plaintiffs have no cause of action to file the present suit? OPD.

Whether suit is not maintainable in the present form? OPD.

Whether suit is bad for non-joinder and misjoinder of parties? OPD.

Whether the Civil Court has got no jurisdiction to entertain and try the suit? OPD.

Relief."

The Trial Court, after appreciation of evidence, dismissed the suit of the plaintiffs. However, the lower Appellate Court, vide its impugned judgment and decree, allowed the appeal.

As a matter of fact, the plaintiffs have prayed for a direction to defendants No. 1 and 2 to enter and sanction the mutation in their favour on the basis of registered sale deed dated 17.06.1976 (Ex. P1). The lower Appellate Court has found that the stand of defendants No. 4 to 6 is that they had not executed the sale deed dated 15.01.1975 (Ex. P2) in favour of defendant No. 3 and in that regard they also set up a counter-claim in their written statement but neither any specific issue was framed nor any argument was advanced, as observed by the Trial Court that "no arguments was advanced on the counter claim filed by the defendants No. 5 & 6. Otherwise also, the defendants No. 5 & 6 have not been able to prove that sale deed Ex. P2 did not bear their signatures or thumb impressions". Although an application was filed before the lower Appellate Court for framing of additional issues and for leading additional evidence by producing scribe of the sale deed dated 15.01.1975 (Ex. P2), but the said application was dismissed by separate order of the even date on the ground that they should have led the evidence before the Trial Court when the opportunity was granted.

Once it was found by the lower Appellate Court that the sale deed dated 15.01.1975 (Ex. P2) was duly executed by defendants No. 4 to 6 in favour of defendant No. 3 who had further sold the suit land to the plaintiffs vide sale deed dated 17.06.1976 (Ex. P1), the question involved is as to "whether defendants No. 1 and 2 could be directed to incorporate the effect of the sale deed (Ex. P1) in the revenue record"?

The lower Appellate Court had found that the plaintiffs are in possession over the land in dispute since its purchase which is supported by the statement of Raj Singh who appeared as PW 3. On the other hand, defendant No. 5, who appeared as DW 1, simply denied the execution of the sale deeds Ex. P1 & Ex. P2 but he did not specifically dispute the possession of the, plaintiffs.

As a matter of fact, the suit for mandatory injunction can be filed in terms of Section 39 of the Specific Relief Act, 1963 (here-in-after referred to as the "Act") as it is incumbent upon defendants No. 1 and 2 to initiate proceedings in terms of Section 34 of the Punjab Land Revenue Act, 1887 (here-in-after referred to as the "Act of 1887") when the matter is brought to their notice about acquisition of a right in the immovable property by way of purchase. The plaintiffs have impleaded Halqa Patwari as defendant No. 2 who is required, as per section 34(3) of the Act of 1887, to enter in his register of mutations every report made to him under Section 34(1) & (2) of the Act of 1887 and the Revenue Officer (defendant No. 1) is required to inquire into the correctness of all the entries in the register of mutations in regard to such acquisition which comes to his knowledge, as provided under Section 34(4) of the Act of 1887. Since no argument was advanced in the counter-claim filed by defendants No. 4 to 6 regarding genuineness of the sale deeds (Ex. P1 & Ex. P2) and a finding is recorded by the Trial Court which has been noticed by the lower Appellate Court, the sale deed dated 15.01.1975 (Ex. P2) in favour of defendant No. 3 and subsequent sale deed dated 17.06.1976 (Ex. P1) in favour of the plaintiffs cannot be doubted and it is for defendant No. 2 to at least enter acquisition of right by the plaintiffs in the register of mutations and place it before defendant No. 1 for the purpose of sanction in terms of Section 34(4) of the Act of 1887.

Counsel for the appellant has argued that the suit was barred under Section 158(2)(vi) of the Act of 1887, which provides for exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. As per Section 158(2)(vi) of the Act of 1887, the Civil Court would not have the jurisdiction for the correction of any entry in a record of rights, annual record of register of mutations.

It may be pertinent to mention here that the plaintiffs have not filed the suit for correction of entry in the register of mutations rather they have filed suit for mandatory injunction for seeking a direction to defendants No. 1 and 2 to make an entry in the register of mutations of the rights acquired by the plaintiffs in the suit property by way of purchase. In this regard, it would be relevant to refer to Section 34 of the Act of 1887 and Section 39 of the Act, which read as under:-

Section 34 of the Act of 1887

"34. Making of that part of the annual record which relates to land-owners, assignee of revenue and occupancy tenants:- (1) Any person acquiring, by inheritance, purchase, mortgage, or otherwise, any right in an estate as a land-owner, assignee of land-revenue or tenant having a right of occupancy, shall report his acquisition of the right to the patwari of the estate.

(2) If the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the patwari.

(3) The patwari shall enter in his register of mutations every report made to him under sub-section (1) or sub-section (2), and shall also make an entry therein respecting the acquisition of any such right as aforesaid which he has reason to believe to have taken place, and of which a report should have been made to him under one or other of those sub-sections and has not been so made.

(4) A Revenue-officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub-sections, report should have been made to the patwari and entry made in that register and shall in each case make such order as he thinks fit with respect to the entry in the annual record of the right acquired.

(5) Such an entry shall be made by the insertion in that record of description of the right acquired and by the omission from that record of any entry in any record previously prepared which by reason of the acquisition has ceased to be correct."

Section 39 of the Act

"39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."

As it has bees clarified that Section 34 of the Act of 1887 pertains to the register of mutations maintained by the Patwari of acquisition of any right by inheritance, purchase, mortgage or otherwise and the inquiry which is to be made by the Revenue Officer about the entries in the register of mutations and to sanction after providing opportunity to the concerned parties. However, in case the said exercise provided under the Statute is not carried out by the Patwari and the Revenue Officer, the person could always approach the Civil Court by way of suit for mandatory injunction because it is provided in Section 39 of the Act that in order to prevent the breach of an obligation, it is necessary to compel the performance of an act which the Court is capable of enforcing, it may, in its discretion, grant an injunction to compel performance of requisite acts.

Thus, the argument raised by counsel for the appellant that the Civil Court does not have the jurisdiction in view of Section 158(2)(vi) of the Act of 1887 is of no avail to him and is rejected.

The second argument raised by counsel for the appellant is that there is a delay of 30 years in seeking the relief and on that ground, the suit is liable to be dismissed. It is alleged by him that the sale deed is of the year 1976, whereas the plaintiffs have approached the revenue authorities in the year 2003. However, counsel for the appellant has failed to show any provision from the Limitation Act, 1963 which bars the plaintiffs from filing the present suit in the present form for seeking necessary relief of a direction to defendants No. 1 and 2 to perform their obligation in terms of the statute. Since no statutory provision has been quoted by counsel for the appellant in this regard from the Limitation Act, 1963 or any other statute, therefore, this argument is rejected.

It is lastly argued by counsel for the appellant that since the possession was not delivered after the sale deed was executed, therefore, the mutation cannot be sanctioned only on the basis of sale deed and has pressed para 7.17 of the Punjab Lands Record Manual.

This argument of the appellant is also without any basis because it has come on record in the evidence of the plaintiffs and their witnesses that possession has already been delivered to them by defendant No. 3 when the sale deed was executed and they are in possession of the suit land. In view of the aforesaid discussion, I do not find any merit in the submissions made by counsel for the appellant nor any question of law much-less substantial is involved in this appeal for the purpose of taking a view different from the view taken by the lower Appellate Court.

Dismissed.