Jammu & Kashmir High Court
Chander Prabha D/O Late Sansar Chand ... vs Ut Of Jammu And Kashmir Through Joint ... on 22 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT JAMMU
LPA No. 39/2024
Reserved on: 16.10.2024
Pronounced on: 22 .10.2024
Chander Prabha D/o late Sansar Chand resident of village Dasgal
House No. 30 Kashmiri Mohalla, Tehsil Akhnoor District Jammu
... APPELLANT(S)
Through: - Mr. Sachin Dogra Advocate
Vs.
1 UT of Jammu and Kashmir through Joint Financial Commissioner.
2. Joint Settlement Commissioner, Jammu
3. Settlement Officer, Jammu
4. Tehsildar Akhnoor,
5. Naib Tehsildar, Akhnoor
6. Som Dutt son of Ram Chand resident of Dasgal Tehsil Akhnoor
District Jammu
...RESPONDENT(S)
Through: - Mr. Vijay Gupta Advocate
CORAM: HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar, J
1 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.
2 The subject matter of dispute between the appellant and
respondent No.6 is the land measuring 02 kanals falling in khasra No.
609 min situated at village Dasgal, Tehsil Akhnoor, District Jammu
which has been classified as "Gain Mumkin Khud". Respondent No.6
herein, invoked the writ jurisdiction of this Court under Article 226 of
the Constitution by filing a writ petition bearing OWP No.1096/2018
challenging order dated 26.04.2018 passed by the Joint Financial
Commissioner, Jammu in a revision petition, whereby the orders
passed by the Settlement Officer, Jammu and the Joint Settlement
Commissioner, J&K, Jammu setting aside the mutation attested in
favour of the appellant herein was upheld. It is pertinent to mention
here that the mutation in question pertains to the aforesaid land.
3 From the pleadings of the parties filed before the Writ
Court, it appears that appellant had had projected a case that he along
with respondent No.6 had purchased the land in question from its
erstwhile owner Sh. Puran Chand by virtue of an Agreement to Sell
dated 18.12.1993 in equal shares. It was claimed by the appellant that
pursuant to the aforesaid Agreement to Sell, he had come into
possession of (01) kanal of land in question and the remaining (01)
kanal of land was under the occupation of respondent No.6 herein. It
was admitted case of the parties that on 07.02.1994, a Sale Deed was
executed in respect of the land in question by its erstwhile owner
Puran Chand in favour of respondent No.6 herein 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.
4 It seems that an appeal was filed by the appellant herein
against mutation dated 28.11.2001 before the Settlement Officer,
Jammu, who vide order dated 27.05.2011 allowed the appeal and set
aside the mutation, whereafter, the case was remanded to the
Tehsildar concerned for de novo enquiry. The said order was
challenged by respondent No.6 herein by way of an appeal before the
Joint Settlement Commissioner, but without any success. A revision
petition came to be filed by respondent No.6 herein against the order
of Settlement Officer, Jammu as upheld by the Joint Settlement
Commissioner before the Joint Financial Commissioner, who vide
order dated 26.04.2018 dismissed the revision petition thereby
upholding the order of the Joint Settlement Commissioner. Against
the order of Joint Financial Commissioner, respondent No.6 herein
filed a writ petition bearing OWP No.1096/2018 before the Writ
Court which came to be allowed by the learned Single Judge in terms
of the impugned judgment.
5 Learned counsel appearing for the appellant has
challenged the impugned judgment passed by the learned Single
Judge, primarily, on the ground that as per the position obtaining on
spot, the appellant is in possession of (01) kanal of land in question
and he has raised construction of plinth thereon which is clear from
the entries in the khasra girdwari pertaining to Rabbi, 2010 as also the
factual report submitted by the concenred Naib Tehsildar before the
Settlement Officer, Jammu. It has been contended that, in terms of
Rule 46 of Standing Order 23-A, possession is one of the two
principal factors which is to be considered by the Officer attesting the
mutation and merely because a Sale Deed has been executed in favour
of a person, the mutation cannot be attested in his favour unless it is
shown that the possession has actually been transferred on the spot.
According to the learned counsel for the appellant, the learned Single
Judge, despite noticing this position of law, has ignored the
documents on record which confirms the possession of the appellant
over (01) kanal of the land in question and proceeded to set aside a
well reasoned order passed by the Joint Financial Commissioner.
6 Learned counsel appearing for respondent No.6, on the
other hand, has contended that once ownership of the land in question
was transferred by its erstwhile owner in favour of respondent No.6
by a duly registered instrument of sale, it has to be presumed that the
possession of land in question was delivered to the said respondent,
particularly when factum of delivery of possession is clearly reflected
in the covenants of the Dale Deed. It has been contended that as
against this, the appellant has not placed on record any document to
rebut this presumption.
7 We have heard learned counsel for the parties and
perused record of the case.
8 The appellant is claiming possession of half of the land in
question on the basis of an Agreement to Sell dated 18.12.1993,
whereas respondent No.6 is claiming possession of the entire land in
question on the basis of a duly registered Sale Deed executed on
07.02.1994. Both these documents are under challenge before the
Civil Court. While the appellant has challenged Sale Deed dated
07.02.1994, respondent No.6 has challenged Agreement to Sell dated
18.12.1993. The two suits are stated to have been consolidated and
the same are pending disposal before the Civil Court.
9 The question, that falls for determination, is as to whether
the mutation in respect of the land in question, can be attested in
favour of the appellant on the basis of Agreement to Sell dated
18.12.1993 which is a document relied upon by him for the said
purpose. The answer to the said question is deducible from the
provisions contained in Section 138 of Jammu & Kashmir Transfer of
Property Act, 1977 (hereinafter referred to as the „Act of 1977‟) which
was applicable at the time of attestation of mutation in respect of the
land in question. The same reads as under:
"138. Transfer of immovable property after due
registration:
(1) No transfer of immovable property, except in a case
governed by any special law to the country, shall be valid
unless and until it is in writing registered and [the
registration thereof has been completed in accordance
with sub-section (3) of section 61 of the Registration Act,
1977.]
(2) No Court shall entertain a suit for pre-emption in
respect of transfer of any such immovable property unless
the transfer complies with the provision of sub-section
(1).
(3) No person shall take possession of, or commence to
build or build on, any land in the Province of Kashmir
which has been transferred or has been contracted to be
transferred to him unless and until such transfer becomes
valid under the provision of sub-section (1).
(4) No person who has obtained a transfer of immovable
property referred to in sub-section (1) shall apply for and
obtain from any Revenue or Settlement Officer or Court
any alteration in any existing entry in any Settlement
Record or paper, unless such person produces before
such officer or Court a duly executed registered
instrument [the registration whereof has been completed
in the manner specified in subsection ]
And no such officer or Court shall alter or cause to be
altered any such entry except upon the production of an
instrument registered [in the aforesaid manner]
Provided that nothing in this section applies to a lease of
agricultural land for one year or to a lease of any other
land for a period not exceeding seven years:
Provided also that nothing in sub-sections (3) and (4)
shall be deemed to apply to transfers by will or by any
rule of intestate succession or by the operation of the law
of survivorship".
10 From a perusal of the aforesaid provision, it is 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. Sub-section (4) quoted above
further 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.
11 Coming to the facts of the instant case, as already
indicated, the appellant is basing upon his right to possess a portion of
the land in question on Agreement to Sell dated 18.12.1993, which 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 Sub-
section(4) of Section 138 of the Act of 1977. It is not the case of the
appellant that the instant case relates to lease of agricultural land for
one year or lease of any other land for a period not exceeding seven
years or that the same relates to transfers by will or by any rule of
intestate succession. Thus, even if it is assumed that the appellant 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 girdwari 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 Section 138(4) of the Act of 1977.
12 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 respondent No.6 herein, on the basis of a
duly registered Sale Deed. The learned Single Judge has rightly
concluded that the Revenue Officers, right from the Settlement
Officer to the 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 writ
petition/respondent No.6 herein on the purchased land was not
sustainable in law. We do not find any perversity or illegality in the
aforesaid conclusion drawn by the learned Single Judge and, as such,
there is no ground to interfere in the impugned judgment.
13 For the foregoing reasons, the appeal is dismissed being
without any merit.
(Sanjay Dhar) (Atul Sreedharan)
Judge Judge
Jammu
22 .10.2024
"Sanjeev"
Whether the order is speaking: Yes
Whether the order is reportable: Yes
