RSA No.917 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.917 of 1993 (O&M) Date of Decision: 30.04.2009 Piara Singh & Ors. ..Appellants Vs. Charan Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Dhillon, Advocate, for the appellants. Mr.O.P.Goyal, Sr. Advocate, with Mr.Varun Sharma, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? Vinod K.Sharma,J. (oral) CM Nos.960-61-C of 2009 Dismissed as withdrawn. RSA No.917 of 1993 2 RSA No.917 of 1993 This regular second appeal by the plaintiff/appellants is directed against the judgment and decree dated 13.1.1993 passed by the learned courts below vide which suit filed by the plaintiff/appellants for possession being owners has been ordered to be dismissed. The plaintiff/appellants brought a suit on the pleadings that Charan Singh, defendant No.1, was owner in possession of land measuring 5 kanals along with other area. Charan Singh sold the land measuring 5 kanals vide two separate sale deeds dated 6.6.1978 and 7.6.1978 along with other area for consideration of Rs.15,000/- to the plaintiff/appellants. Since the date of purchase the plaintiff/appellants were owners of the suit land. It is further pleaded that subsequently, defendant No.1 fraudulently and illegally and in connivance with defendant No.2 Gurdip Singh and his father Mohan Singh sold the land along with other area to defendant No.2 i.e. Gurdip Singh vide sale deed dated 26.7.1978, even though he had no right left in the suit land. Defendants No.2 to 11 were impleaded as party being legal heirs of Mohan Singh since deceased. Mohan Singh in pursuance to the illegal sale got possession of the suit land and also got mutation of sale in respect of the suit land sanctioned illegally. Plaintiff/appellants further claimed that, in spite of their request, to the defendants to surrender possession they refused to do so and thus, the suit for possession was filed. On notice suit was contested wherein factum of sale deeds in favour of plaintiff/appellants for consideration of Rs.15,000/- was admitted but it was pleaded that Khasra No.22//10/2 (5-0) was not intended RSA No.917 of 1993 3 to be sold vide those sale deeds. It was further stated that it was by mistake of defendant No.1 and plaintiffs No.1 and 2 that this area was included. On realization of mistake defendant No.1 sold 8 kanals of land on 26.7.78 to Mohan Singh and Gurdip Singh for a consideration of Rs.19,000/- in which disputed land falling in khasra No.22//10/2 (5-0) was also included. The case further set up was that on 26.6.1978 defendant No.1 had received Rs.6620 as earnest money and an agreement to sell was executed in their favour. It was also the case of the defendant/respondents that the plaintiffs never came in possession of khasra No.22//10/2 (5-0) which, in fact, was actually not intended to be included in the sale deeds of the plaintiffs as the sale deed was qua khasra No.22//14/2/2 (3-18). The case of the defendant/respondents further was that the plaintiff/appellants knew about the mutual mistake committed by defendant No.1 and the vendees and therefore, no objection was raised to sanction of mutation on the basis of sale deed dated 26.7.1998 in favour of Mohan Singh and Gurdip Singh, rather they got entered mutation Nos.1590 and 1591 with regard to their sale deeds. In the mutations sanctioned in favour of the plaintiffs khasra No.22//14/2/2 (3-18) which was not mentioned in the sale deeds in favour of the plaintiffs, was entered instead of khasra No.22//10/2 (5-0) by mutual consent. It was also the case of the defendant/respondents that Mohan Singh and Gurdip Singh came in possession by transfer of khasra No.22//10/2 as owner under the sale deed dated 26.7.78 and therefore, defendants No.2 to 11 being legal representatives of deceased Mohan Singh were owners in possession of entire khasra No.22//10/2. Right, title and RSA No.917 of 1993 4 interest of the plaintiff/appellants in the disputed land was denied. It was also alleged that there was certain clerical mistake in the mutation. Ownership of the plaintiffs was denied and it was alleged that defendants No.2 to 11 are owners in possession of the land in dispute and accordingly prayer was made for dismissal of the suit. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the plaintiffs are owners of the land in dispute? 2. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? 3. Whether the suit is not within time? 4. Relief. In support of issue No.1, Teja Singh appeared as PW 1 and deposed that he purchased the disputed land in the name of his sons from Charan Singh vide sale deeds Exs.P.5 and P.6 for a sum of Rs.7500/-, each. He further deposed that the land was under mortgage with Gurdip Singh but was not redeemed by Charan Singh after getting Rs.15,000/-. Teja Singh further deposed that later on Charan Singh sold the land in dispute to Mohan Singh and Gurdip Singh illegally and without any right. Balwant Singh who appeared as PW 2 also deposed that Charan Singh defendant No.1 executed sale deeds Ex.P.5 and P.6 in favour of the plaintiff/appellants to sell his land including the land in dispute. The stand taken by the defendant-respondents was that even though the land in dispute was mentioned in the sale deed Exs.P.5 and P.6 but later on, with the mutual consent of Charan Singh the vendor and the RSA No.917 of 1993 5 plaintiffs, plaintiffs were given land of khasra No.22//14/2/2 (3-18 ) in lieu of land measuring 5 kanals i.e. disputed land and further that the plaintiffs accepted the alternative land in lieu of the disputed land. It was also the case of the defendant/respondents that the plaintiffs were given possession of land measuring 3 kanals 18 marlas in lieu of the disputed land. It was also the case of the defendants that mutation in the name of the plaintiff/ appellants was sanctioned qua alternative land instead of disputed land. Reference in this regard was made to Ex.P.10 i.e. the mutation sanctioned in favour of the plaintiff/appellants. Defendant/respondents further claimed that the pontiffs relinquished their right in respect of the land in dispute after getting alternative land measuring 3 kanals 18 marlas. Shankar Singh DW 1, Gurditp Singh DW 2 and Malkiat Singh deed writer DW 3 led evidence to prove that the land in dispute was sold to Gurdip Singh vide sale deed Ex.D.1 and further that Gurdip Singh and Mohan Singh were put in possession of the land in dispute. Defendant/respondents claimed that sanctioning of mutation was never challenged by the plaintiffs. The contention raised was that the plaintiff/appellants could not get double benefit to keep the land they got by way of election. Bar of Section 35 of Transfer of Property Act was invoked to non-suit the plaintiff/appellants. Reliance was placed on the judgment of Full Bench of Hon'ble High Court of Madras in case of (Vemulapalli) Ramakotayya Vs. (Gutha) Viraraghavayya AIR 1929 Madras 502, wherein Hon'ble Full Bench of Madras High Court has been pleased to lay down as under:- “ Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative RSA No.917 of 1993 6 rights of claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. Every case of election, therefore, pre-supposes a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both that one should be a substitute for the other. The party who is to take has a choice, but he cannot enjoy the benefit of both.” Reliance was also placed by the learned trial court on the judgment of this court in the case of Bhagwan Kaur etc. Vs. Ranjit Singh and Anr. (1990-1) PLR 290, wherein this court has been pleased to lay down as under:- “ Held, that Sections 54, 107 and 123 of the Transfer of Property Act were made applicable to the erstwhile State of Punjab on March 26, 1955. After these provisions were made applicable sale, lease of immovable property, gift could only be made by a registered document. Exchange could be made orally followed by delivery of possession and an entry to that effect in the mutation register. Exchange was followed by delivery of possession. The plaintiff gave his Haveli in exchange for the land in dispute. Admittedly, the defendants are in possession of the Haveli and it was never disputed. The possession of the plaintiff over the suit land is evidenced by the entries in the Khasra Girdawari and Jamabandis. Possession was in assertion of his right hostile to the true owners which was never disturbed for more than two decades by the lawful owners and RSA No.917 of 1993 7 it would be deemed to be adverse to the true owners. Assuming there was no valid exchange, the plaintiff had perfected his tittle by adverse possession.” Learned trial court, therefore, held that the plaintiff/appellants had elected land measuring 3 kanals 18 marlas instead of disputed land and therefore, were not the owners of the land in dispute. Issue No.1 was accordingly decided against the plaintiff/appellants. In view of the findings recorded on issue No.1, learned trial court decided issue No.2 also against the plaintiff/appellants. Issue No.3 was not pressed and accordingly decided against defendant/respondents. In view of the findings referred to above the suit filed by the plaintiff appellants was dismissed. Appeal filed by the plaintiff/appellants was also dismissed by affirming the findings recorded by the learned trial court. Mr.G.S.Dhillon, learned counsel appearing on behalf of the appellants contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether the learned courts below wrongly applied the provisions of Section 35 of the Transfer of Property Act to non-suit the plaintiff/appellants, therefore, the judgment and decree passed by the learned courts below is perverse? 2. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of RSA No.917 of 1993 8 documentary and oral evidence, therefore, perverse? In support of the substantial questions of law, learned counsel for the appellants contended that it was admitted case of the parties that the land in dispute was sold to the plaintiff/appellants by way of two sale deeds dated 6.6.1978 and 7.6.1978. It is also the contention of the learned counsel for the appellants that admittedly sale in favour of the defendant/respondents was of 26.7.1978 i.e. subsequent to the sale deeds executed in favour of the plaintiff/appellants, therefore, it could not vest any valid title in favour of defendant/respondents. Learned counsel for the appellants also referred to the alleged sanction of mutation of exchange Ex.DC and Ex.DX which are said to be dated 29.6.1980. However, in the said mutations there is no mention of exchange. The contention of the learned counsel for the appellants, therefore, is that neither the principle of election was applicable, nor exchange was proved, therefore, the finding recorded by the learned courts below are outcome of misreading of evidence. It was, therefore prayed that the substantial questions of law be answered in favour of the appellants and against the defendant/respondents. It was also the contention of the learned counsel for the appellants that on the face of sale deeds the mutation entries could not be relied upon to decide the title of the respective parties, as it is well settled law that mutation entries do not confer any proprietary right, as these are maintained for fiscal purpose only. In support of this contention reliance was placed on the RSA No.917 of 1993 9 judgments of this court in the case of Ashok Bansal & Ors. Vs. Gurdas & Anr. 2002 (3) CCC 288 and Makhan Singh & Anr. Vs. Achhar Singh & Ors. 2000 (2) CCC 389. In Makhan Singh & Anr. Vs. Achhar Singh & Ors. (supra), this court was pleased to lay down that mutation entries do not convey or extinguish any title as these entries are relevant only for the purposes of collection of revenue. Similar view was taken in case of Makhan Singh & Anr. Vs. Achhar Singh & Ors. (supra) Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Smt.Sawarni Vs. Smt.Inder Kaur & Ors. 1997 (1) CCC 1, wherein Hon'ble Supreme Court was pleased to lay down that mutation of property in the revenue record does not create or extinguish title nor has it any presumptive value on tittle. The contention of the learned counsel for the appellants, therefore, was that the judgment and decree of the learned courts below placing reliance on the entries of mutation, in preference to the sale deed which was a document of title is certainly outcome of misreading of admissible evidence on the point, therefore, perverse. Mr.O.P.Goyal, learned senior counsel appearing on behalf of the respondents, on the other hand, supported the findings recorded by the learned courts below to contend that in view of principle of election the plaintiff/appellants could not claim, themselves to be the owners of the property in dispute so as to seek possession from the defendant/respondents who were owners in possession in pursuance to the sale deeds executed in their favour though later in time. On the basis of the sale, mutation stood RSA No.917 of 1993 10 sanctioned in their favour and were also put in possession of the property in dispute with consent of the plaintiff/appellants. It may be noticed that reliance was placed by the learned trial court on the Full Bench judgment of Hon'ble Madras High Court in the case of (Vemulapalli) Ramakotayya Vs. (Gutha) Viraraghavayya (supra) and the judgment of this court in the case of Bhagwan Kaur etc. Vs. Ranjit Singh and Anr.(supra), to dismiss the suit. By referring to the evidence documentary, as well as oral, Mr. O.P.Goyal, learned senior counsel appearing on behalf of the defendant/respondents contended that this court under section 100 of the Code of Civil Procedure (for short the Code) cannot interfere in the concurrent finding of fact recorded by the learned courts below holding that the plaintiffs by way of election had elected alternative land in lieu of the disputed land, therefore, could not be said to be owners to claim possession. It was further the contention of the learned senior counsel, that “exchange” stood duly proved, and was accepted by the learned courts below, therefore, no ground was made out to interfere with the findings recorded by the learned courts below in exercise of jurisdiction under section 100 of the Code. The substantial questions of law raised, therefore, do not arise for consideration in this appeal. On consideration, I find force in the contention raised by the learned counsel for the appellants. Section 35 of the Transfer of Property Act reads as under:- “ 35. Election when necessary Where a person professes to transfer property which he has no RSA No.917 of 1993 11 right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration,to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.” In order to attract the provisions of Section 35 of the Transfer of Property Act (for short the Act) it was incumbent upon the defendant/respondents, to incorporate the right of election, in the sale deed executed in their favour as under section 35 of the Act words used are “same transaction”. In the absence of right of election having been offered in the sale deed. Subsequently conduct of the plaintiff/appellant as alleged could not attract provisions of section 35 of the Transfer of Property Act. Reading of sale deed in favour of defendant/respondent does not show any right of election offered to the plaintiff/appellants. Findings recorded by the learned courts below are perverse and outcome of misreading of provisions of section 35 of the Transfer of Property Act. Learned courts below also committed an error in holding that RSA No.917 of 1993 12 the plaintiff/appellants had exchanged the land, without there being any proof of exchange. Merely because certain mutations were sanctioned, and placed on record without making any reference to alleged exchange it could not be said that the plaintiff/appellants had exchanged the land in lieu of the disputed land, as held by the learned courts below. As already observed, in the absence of proof of exchange, and the date thereof, the findings recorded by the learned courts below are to be held to be based on no evidence, therefore, outcome of misreading of entries in the revenue record and deserved to be reversed. The contention of the learned senior counsel for the respondents that this court under section 100 of the Code cannot interfere with the concurrent findings, also cannot be sustained as it is well settled that if the findings recorded by the learned courts below are based on wrong application of law or are otherwise perverse, this court in exercise of power under section 100 of the Code can interfere with the concurrent findings recorded by the learned courts. In the case in hand, learned courts below have ignored the admissible evidence i.e. sale deeds which were documents of title, and gave preference to the mutation entries, which also did not support the case of exchange as set up by the defendant/respondents. The findings being outcome of misreading of evidence and being perverse can always be corrected under section 100 of the Code. For the reasons stated, substantial questions of law are answered in favour of the appellant/plaintiffs and against the respondents. This appeal is accordingly allowed. The judgment and decree RSA No.917 of 1993 13 passed by the learned courts below is set aside, and the suit filed by the plaintiff/appellants for possession of disputed land is ordered to be decreed but with no order as to costs. 30.04.2009 (Vinod K.Sharma) rp Judge