Excelsior Correspondent
Srinagar, Oct 25: The High Court has said that transfer of immovable property cannot be termed as valid unless and until it is not registered by way of a registered instrument and the existing entry in revenue records cannot be altered unless the instrument is produced before the revenue authority.
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Terming the cancellation of mutation on the basis of registered sale deed as gross mistake by the Revenue authorities, the Division Bench of Atul Sreedharan and Justice Sanjay Dhar said that the Revenue officers right from the Settlement Officer to Financial Commissioner were not correct in coming to the conclusion that the mutation attested on the basis of a sale deed without ascertaining the factum of possession of the person on the purchased land was not sustainable in law.
“In view of what has been discussed hereinbefore, the Joint Financial Commissioner and the subordinate Revenue Officers viz., the Settlement Officer and Joint Settlement Commissioner have grossly erred in setting aside mutation No. 856 dated 28.11.2001, that was attested in favour of the persons who had registered sale deed in his favour on the land in question”, the DB said.
Court has made it clear that transfer of immovable property cannot be termed as valid unless and until, it is in writing and registered in accordance with the provisions of the Registration Act which provides that unless a person who has obtained a transfer of immovable property by way of a registered instrument, produces such registered instrument before a Revenue or Settlement Officer or Court, the existing entry in any settlement record or paper, cannot be altered.
“This requirement is relaxed only in the cases relating to lease of agricultural land for one year or to a lease of any other land for a period not exceeding seven years. The said requirement is also not applicable to transfers by will or by any rule of intestate succession or by operation of law of survivorship. Thus, it is clear that unless a registered instrument relating to transfer of immovable property is produced before a Revenue Officer, the existing entry, in any revenue record, cannot be altered”, reads the judgment.
The appellant-Chander Prabha was claiming his right to possess a portion of the land in question on Agreement to sell dated 18.12.1993, which the court said, is admittedly not a registered instrument. “Therefore, in no case, mutation in respect of any portion of the land in question, can be attested in his favour as the same would be in violation of the Act”, court said.
Court further added that if it is assumed that Prabha is in possession of some portion of the land in question, the same would amount to ‘unauthorised occupation’ and, entry in the revenue record cannot be altered in his favour on that basis. Even the entry in the khasra girdawari in favour of the appellant, which is stated to have been made in Rabbi, 2010, is non est in the eyes of law, as the same is in violation of the Act.
The appellant has called in question judgment dated 29.02.2004 passed by the learned Single Judge whereby the writ petition filed by respondent No.6 herein has been allowed and order dated 26.04.2018 passed by the Joint Financial Commissioner, Jammu (respondent No.2 herein) has been quashed.
The factual matrix of the case is the dispute between Prabha and private respondent-Som Dutt on the land measuring 02 kanals purchased by them jointly from its erstwhile owner Puran Chand by virtue of an Agreement to Sell dated 18.12.1993 in equal shares.
Prabha in pursuant of Agreement to Sell had come into possession of (01) kanal of land in question and the remaining (01) kanal of land was under the occupation of respondent -Dutt but a Sale Deed was executed on 07.02.1994 in respect of the land in question by its erstwhile owner Puran Chand in favour of respondent-Dutt which was duly registered and on the basis of this Sale Deed, mutation No. 856 dated 28.11.2001 came to be attested in respect of the land in question in favour of the said respondent and the said mutation came to be challenged by the appellant-Prabha and succeeded in setting aside the same. However, the High Court has nullified the orders of quashing the mutation and has held that the revenue authorities have grossly erred in ascertaining the factual position of the case.
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