Nathu vs The Board of Revenue for Rajasthan and Others

Mohammad Rafiq, J—This writ petition has been filed by Nathu against judgment dated 24.03.2000 of the Board of Revenue. The Board of Revenue by aforesaid judgment, while dismissing appeal of petitioner, affirmed judgments dated 30.01.1999 of the Revenue Appellate Authority, Ajmer, and that of the Assistant Collector, Ajmer, dated 28.02.1998.

Nathu (petitioner), Ramdhan (respondent No. 2) and Dhonkal (respondent No. 3) were real brothers. According to petitioner, they were formerly co-tenants in the land, which was part of old Khata No. 81 and new Khata No. 86 measuring approximately 32 bigha 18 biswa situated in village Gaderi, Tehsil Nasirabad, District Ajmer. According to petitioner, respondent No. 2 sold his share of land in Khata No. 86 by sale-deed dated 31.01.1983 half each to both, petitioner and Narain S/o. Sujan Gujar. The sale-deed was registered on 09.02.1983 in the office of the Registrar. Sale-deed contains the stipulation that it was a conditional sale wherefore the seller had executed a separate agreement with the buyer. Petitioner and aforesaid Narain got said land mutated in their names in the revenue record. Suddenly, respondent No. 2 Ramdhan filed a revenue suit against Nathu, Dhonkal, Narain and State of Rajasthan, purporting it to be a suit for division of holding, under Section 53 read with Sections 88 and 188 of the Rajasthan Tenancy Act, 1955. He pleaded that he has 1/3rd share in total land of Khata No. 81 (new No. 86), which comprises of 28 fields having total area of 32 bigha 18 biswa in village Gaderi, Tehsil Nasirabad, District Ajmer. Three brothers had divided the land inter-se and they were cultivating the land upon their respective shares and have been paying land revenue according to mutual compromise. Plaintiff Ramdhan wanted that the land should be formally partitioned. He pleaded that he was in possession of 19 bigha 15 biswa of land, the part of which was sold to petitioner. In para 5 of the plaint, plaintiff Ramdhan pleaded that he sold part of the land to petitioner and Narain for consideration of Rs. 6000/- with the understanding that if he wanted to get the land back, he could do so after repayment of Rs. 6000/-. On that basis, separate agreement dated 31.01.1983 was executed, but petitioner herein did not comply with condition of that agreement. Narain, another buyer, returned the land to Ramdhan on receiving the amount.

Petitioner, in written statement, disputed claim of Ramdhan and pleaded that the land was purchased through registered sale-deed dated 31.01.1983 and it was not liable to be returned to Ramdhan. The Assistant Collector passed the decree for partition of the land by holding that land sold by registered sale-deed dated 31.01.1983 was a part of joint tenancy and did not vest in petitioner and Narain, and further held that Ramdhan had right to get 1/3rd share in the total land of 32 bigha 18 biswa and directed for proceeding towards passing of final decree. Aggrieved thereby, petitioner filed first appeal under Section 223 of the Rajasthan Tenancy Act, 1955, in the court of Revenue Appellate Authority by asserting that plaintiff Ramdhan, as per stipulation in the sale-deed, did not exercise option to repurchase the land on the basis of agreement dated 31.01.1983 within prescribed period, as such, he lost his right to repurchase the land now. The sale-deed dated 31.01.1983 was in fact the sale-deed and not a mortgage-deed. The Revenue Appellate Authority, however, dismissed the appeal and upheld the judgment of the Assistant Collector. Being aggrieved, petitioner filed Second Appeal before the Board of Revenue, which was also dismissed. Hence this writ petition.

Shri Saket Pareek, learned counsel for petitioner, referring to Section 58 (c) of the Transfer of Property Act, 1882, has argued that all three courts below have failed to properly construe the sale-deed dated 31.01.1983, which was a deed for outright sale and note at the end of the sale-deed merely stated that it was a conditional sale but it did not make the sale conditional. Execution of separate agreement dated 31.01.1983 also does not effect the validity of the sale-deed. As instrument, to be a mortgage with conditional sale, should first be drafted as a mortgage deed with condition that if it is not redeemed within a specified time, it shall be considered as a sale. The document in question is a clearcut sale transferring the right of ownership and possession to the purchasers and their heirs and successors, giving full right of use of the land and right to dispose of the land, and that every right of ownership has been transferred in favour of purchasers. In the said sale-deed, plaintiff Ramdhan asserted that he would not claim any right over the land in future and as such, it is a clearcut outright sale and nothing else. Reference, in particular, is made to proviso to Section 58 (C), which stipulates that no such transaction shall be deemed to be a mortgage unless the condition is recorded in the document, which effects or purports to effect the sale. Argument of learned counsel for petitioner is that sale-deed dated 31.01.1983 does not come in the definition of ''mortgage by conditional sale''. The question framed by the Board of Revenue in para 4 of the judgment, whether the registered sale-deed dated 31.01.1983 was a conditional sale or not, has improperly been framed, argued the learned counsel. In fact, it should have been framed to the effect whether the instrument dated 31.01.1983 was a sale with an option to repurchase or it was a mortgage with conditional sale. This mistake has persisted in all the judgments passed by the courts below. 4. Learned counsel for petitioner, in support of his arguments, has relied on judgments of the Supreme Court in Raj Kishore (Dead) By L.Rs. Vs. Prem Singh and Others, AIR 2011 SC 382 : (2011) 2 CTC 229 : (2011) 1 RCR(Civil) 383 : (2011) 1 SCC 657 : (2011) AIRSCW 3859 , Mushir Mohammed Khan (Dead) By LRS. Vs. Smt. Sajeda Bano and Others, AIR 2000 SC 1085 : (2000) 2 JT 609 : (2000) 2 SCALE 208 : (2000) 3 SCC 536 : (2000) 2 SCR 65 : (2001) AIRSCW 2246 : (2000) AIRSCW 798 : (2000) 3 Supreme 286 , Gauri Shankar Prasad and Others Vs. Brahma Nand Singh, (2008) 2 CTLJ 557 : (2008) 10 SCALE 306 : (2008) 8 SCC 287 and Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, AIR 1954 SC 345 : (1955) 1 SCR 174 .

Shri Parikshit Singh, learned Deputy Government Counsel for respondents, opposed the writ petition and supported the judgments passed by all three courts below. It is argued that the words ''conditional sale'' are categorically mentioned at the bottom of the sale-deed and that it is also mentioned therein that separate agreement for that purpose is executed between the parties. This separate agreement was also produced before the courts below. While the agreement to sell dated 31.01.1983 was produced before the courts below as Exhibit P-2, the agreement dated 31.01.1983 was also produced as Exhibit P-5. It cannot therefore be said that the sale-deed was without any stipulation with regard to conditional sale.

I have given my anxious consideration to rival submissions and perused the material on record.

Perusal of judgment passed by learned Assistant Collector indicates that he has recorded a finding that disputed land was a part of undivided ancestral land in which plaintiff Ramdhan and defendants No. 1 and 2 had equal share. This fact was borne out from Jamabandi Khatauni dated 09.08.1996 (Exhibit-1), which pertains to the time prior to filing of the suit. There was a note in the Jamabandi and that mutation No. 46 dated 29.12.1995 was attested by order of the Land Settlement Officer dated 13.07.1995, according to which plaintiff and defendants No. 1 and 2 had equal share in the land. Learned Assistant Collector recorded the finding that it was a case of conditional sale and joint reading of two documents bring the same within the purview of mortgage with conditional sale, which is borne out from sale-deed (Exhibit-2) with agreement dated 31.01.1983. The case of plaintiff before the Assistant Collector was that while Narain had returned the land by accepting the amount, defendant-petitioner Nathu was neither accepting the amount back nor parting with possession and was forcibly trying to cultivate the land of the plaintiff. Learned Revenue Appellate Authority has affirmed aforesaid finding of learned Assistant Collector. Learned Board of Revenue has also concurred with the opinion of the Assistant Collector and the Revenue Appellate Authority and held that it was a case of conditional sale and not a simple sale. Learned Board of Revenue, in particular, has referred to statement of Narain S/o. Sujan Gurjar, one of the purchasers of another part of land of plaintiff Ramdhan, who admitted that he has received back the amount from plaintiff, which was obtained by him at the time of sale and returned the land. He also admitted in his statement that plaintiff made the sale under a condition that if within a period of three years the amount was returned by him, the possession shall be handed over of the land in dispute to the plaintiff. In view of the concurrent finding of all three courts below, it cannot be accepted that it was not a case of conditional sale. The fact that it was a conditional sale, is substantiated from note given at the bottom of the sale-deed itself, pursuant to which a further agreement was executed between the parties on the same date. The petitioner wants to read the condition of free purchase of the property with the help of these documents, which was not envisaged by any of the parties nor contained in any of these two documents. The sale was conditional sale, which is borne out not only from the sale-deed but also from separate agreement.

The cited judgments on the given facts, therefore do not afford any assistance to the petitioner. They cannot apply to the present case because here, apart from the fact that there was separate agreement for re-conveyance of the land to the seller, there was also stipulation in the sale-deed to the effect that it was a conditional sale for which separate agreement was executed. Had this stipulation been missing from the sale-deed and there was no such stipulation in separate agreement for re-conveyance of the property, petitioner could maintain a case that it was a case of clearcut sale and not a conditional sale. Whereas, in the present case it was a condition indeed incorporated in the sale-deed dated 31.01.1983.

In view of the above, I do not find any infirmity or illegality in the judgments passed by all the three courts below.

Writ petition is accordingly dismissed.