CWP No.3249 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.3249 of 2008 Date of Decision: 11.3.2010 Jagjit Singh and others .....Petitioners Vs. Financial Commisioner (Appeals-II),Punjab and others ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. S.K. Singla, Advocate for the petitioners. Mr. S.S. Sahu, AAG, Punjab, for respondents no.1 to 4. Mr. Parminder Singh,Advocate for respondent no.5. .... RAJIVE BHALLA, J (Oral) The petitioner prays for issuance of a writ in the nature of Certiorari for quashing orders 7.4.2005, 19.10.2005 and 2.1.2008, passed by the the Collector, the Divisional Commissioner, Patiala Division, Patiala and the Financial Commissioner,Punjab (Appeals-II), setting aside Mutation No.3453 sanctioned in the name of petitioner no.1 by the Assistant Collector, Ist Grade, Raikot vide order dated 29.6.2004. Petitioner no.1 and respondent no.5 are sons of petitioner no.2. Petitioner no.2 transferred the land in dispute to petitioner no.1 by registered instrument no.4643 dated 17.2.2004. On the basis of this registered deed, the Assistant Collector, Ist Grade, Raikot, sanctioned a CWP No.3249 of 2008 2 mutation in favour of petitioner no.1, by order dated 29.6.2004. Aggrieved by this order, respondent no.5 filed an appeal. The Collector vide order dated 7.4.2005 accepted the appeal and set aside the mutation by holding that petitioner no.1 has not led any evidence to prove that the land in dispute is the self acquired property of their father. The petitioners, thereafter, filed an appeal which was dismissed by the Divisional Commissioner, Patiala, on the sole ground that as possession has not been transferred to petitioner no.1, the mutation cannot be sanctioned in his favour. A revision filed by the petitioners before the Financial Commissioner (Appeals-II), Punjab was also dismissed. Counsel for the petitioners submits that revenue authorities had no jurisdiction to adjudicate whether the property is self acquired or ancestral as they are statutorily bound to sanction a mutation on the basis of a registered transfer deed. It is further submitted that as respondents have admitted the petitioners possession, the Commissioner and the Financial Commissioner wrongly dismissed the appeal and the revision. Counsel for respondent no.5, submits that the registered deed executed by his father in favour of petitioner no.1 is a nullity, as the suit land is ancestral and, therefore, cannot be alienated, except for legal necessity. It is further submitted that as possession was never delivered, the Commissioner and the Financial Commissioner rightly upheld the order rejecting the mutation. It is also contended that as a civil suit, challenging the correctness of the transfer deed is pending adjudication, the mutation should be kept in abeyance, to await the outcome of the civil suit. I have heard counsel for the parties and perused the orders passed by the Collector, the Commissioner and the Financial Commissioner. CWP No.3249 of 2008 3 A mutation neither confers nor divests a party of title and is a mere fiscal entry. Apart from exceptional circumstances, mutations should not be kept in abeyance. A revenue officer, exercising jurisdiction under Punjab Land Revenue Act, is statutorily bound to attest and sanction a mutation on the basis of a registered transfer deed. The power to attest and sanction a mutation and the procedure to be adopted is set out in Sections 34 to 37. Section 34 of Act, reads as follows :- “34. Making of that part of the annual record which relates to land-owners, assignees 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. CWP No.3249 of 2008 4 (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 forgoing 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 a 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 35 of the Act reads as under: - “Making of that part of the annual record which relates to other persons. The acquisition of any interest in land other than a right referred to in sub-section (1) of the last foregoing section shall: - (1) If it is undisputed, be recorded by the patwari in such manner as the Financial Commissioner may by rule in this behalf prescribe; and (2) if it is disputed, be entered by the patwari in the register of mutations and dealt with in the manner prescribed in sub-sections (4) and (5) of the last foregoing section.” CWP No.3249 of 2008 5 Section 36 of the Act reads as follows :- “Determination of disputes :- (1) If during the making, revision or preparation of any record or in the course of any enquiry under this Chapter a dispute arises as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue officer may of his own motion, or on the application of any party interested but subject to the provisions of the next following section and after such inquiry as he thinks fit, determine the entry to be made as to that matter. (2) If in any such dispute the Revenue officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by summary inquiry who is the person best entitled to the property and shall by order direct that that person be put in possession thereof and that an entry in accordance with that order be made in the record or register. (3) A direction of a Revenue officer under sub-section (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.” Sections 34 to 36 empower a revenue officer to enter upon a summary enquiry in order to resolve a disputed mutation. However, when faced with a registered instrument, the revenue officer may conduct an CWP No.3249 of 2008 6 enquiry but for the limited purpose of satisfying himself that the registered instrument has been executed by the person recorded as owner in the revenue record. A revenue officer, as a general rule, cannot enter upon an enquiry to decide whether the property is personal or ancestral property. A registered instrument records a transfer of proprietary and/or possessory rights and is registered under the provisions of the Indian Registration Act. A presumption of truth attached to a registered instrument can only be rebutted by recourse to a civil suit. The legality of a registered instrument is, therefore, best left to be adjudicated by a civil court. In the present case, the legality of the registered transfer deed and the question as to the nature of the property is pending before a civil court. The Collector, the Commissioner and the Financial Commissioner, therefore, fell in error by discarding the registered deed, by holding that petitioner no.1 has failed to establish that land is the self acquired property of petitioner no.2. The plea that possession has not been delivered is irrelevant as the provision of the Punjab Land Record Manual that provide that a mutation shall not be sanctioned, if possession has not been delivered, does not apply to cases of the instant nature. The objection raised by counsel for respondent no.5 that in case a mutation is sanctioned, the official respondents may transfer the property can be met by appending a note in the remarks column that a civil suit is pending adjudication between the parties, so as to forewarn any prospective vendee, lessee, mortgagee etc. of the dispute between the parties. As regards respondent no.5's grievance that petitioner no.2 should be restrained from alienating the property, suffice it to say that in view of the pendency of the civil suit and the applicability of the principles CWP No.3249 of 2008 7 of lis-pendens, the rights, if any of respondent no.5 in the land in dispute are sufficiently protected. In view of what has been stated herein above, the writ petition is allowed, the orders 7.4.2005, 19.10.2005 and 2.1.2008, passed by the the Collector, the Divisional Commissioner, Patiala Division, Patiala and the Financial Commissioner,Punjab (Appeals-II) are set aside and the order dated 29.6.2004 passed by the Assistant Collector, Ist Grade, Raikot, sanctioning Mutation No.3454 is affirmed. The Assistant Collector, Ist Grade shall, however, append a note in the remarks column of the jamabandi that a civil suit is pending adjudication. Any opinion on merits, as to the rights of the parties shall be disregarded by the civil court, while examining the legality of the transfer deed. 11.3.2010 (RAJIVE BHALLA) GS JUDGE