Madhya Pradesh High Court
Mukesh Kumar Rai vs Mohd. Safiq Qureshi Dead Through Lrs. ... on 14 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:51197
1 M.P. No.2267/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14th OF OCTOBER, 2024
MISC. PETITION No. 2267 of 2024
MUKESH KUMAR RAI AND OTHERS
Versus
MOHD. SAFIQ QURESHI DEAD THROUGH LRS. MOHD. AMIR
AND OTHERS
Appearance:
Shri Ashish Shroti - Advocate for petitioners.
Shri Abhijit Bhowmik - Advocate for caveator.
ORDER
This petition under Article 227 of the Constitution of India has
been filed seeking the following reliefs:-
i. That, the Hon'ble court may kindly be issue writ of
certiorari concern respondent authority to set-aside the
order impugned dated 08/01/2023 (Annexure-P-6)
passed by Upper Commissioner, with holding that the
revenue authority can't denied for mutation u/s 109-110
of MPLRC in revenue record when sale deed is in
existence and has not declared null and void by
competent court, in the interest of justice.
ii. Any other relief which Hon'ble court may find fit may
grant in favor of petitioner, in the interest of justice.
2. It is submitted by counsel for petitioners that petitioners had
purchased 2400 sqft of land forming part of Khasra No.408/1 for a
consideration amount of Rs.1,17,76,000/-. On the basis of said sale
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deed, petitioners moved an application for mutation of their names,
which was allowed by Tahsildar Bina, District Sagar by order dated
13/2/2020 passed in case No.1548/A-6/2019-20. Being aggrieved by the
said order, respondents preferred an appeal, which was registered as
Appeal No.37/Appeal/2021-22 and by order dated 4/10/2023 the SDO
(Revenue), Bina, District Sagar dismissed said appeal. It is submitted by
counsel for petitioners that on a further challenge by respondents, the
Additional Commissioner, Sagar Division, Sagar by order dated
8/1/2024 passed in case No.0807/Appeal/2023-24 has allowed the
appeal by holding that a civil suit has been filed by father of
respondents, which has been registered as Civil Suit No.RCS12/2020
and further, the mutation was done without giving an opportunity of
hearing to all the necessary parties including respondents.
3. Challenging the order passed by the Additional Commissioner,
Sagar Division, Sagar it is submitted by counsel for petitioners that the
civil suit was not filed by the father of respondents, but it has been filed
by one Noorbano, who claims herself to be a co-sharer in the entire
property including the property which is the subject matter of the sale
deed. It is further submitted by counsel for the petitioners that (i)
whether the sale-deed was rightly executed or not, is beyond the
purview of mutation proceedings and (ii) once there is recital in the sale-
deed that entire consideration amount has been paid, then whether the
consideration amount was paid or not, cannot be a ground for setting
aside sale-deed and to buttress his contentions, counsel for petitioners
has relied upon a judgment passed by the Supreme Court in the case of
Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through
Legal Representatives and others reported in (2020) 7 SCC 366.
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4. Heard learned counsel for petitioners.
5. Coordinate Bench of this Court by order dated 23/7/2024 had
passed the following order:-
After arguments at length, learned counsel for the
petitioners prays for time to produce copy of statement
of Bank account showing payment of sale consideration
mentioned in the sale deed.
As prayed, list on 30.07.2024.
In the meantime, effect and operation of order dated
08.01.2024 passed by Additional Commissioner shall
remain stayed, till the next date of listing.
6. In response to the said order, it is submitted by counsel for
petitioners that out of total consideration amount of Rs.1,17,76,000/-, a
total amount of Rs.3,00,000/- has been paid. Although cheques were
issued in respect of remaining amount, which are mentioned in the sale
deed, but they were never presented by respondents in the Bank. It is
further submitted that later on petitioners have paid the entire
consideration amount in cash.
7. Per contra, petition is vehemently opposed by counsel for
respondents. It is submitted that no amount in cash has been paid by the
petitioners. Even otherwise, as per provisions of Sections 269SS and
269T of the Income Tax Act, amount in excess of Rs.20,000/- cannot be
paid in cash. In fact, nothing in cash has been paid.
8. Considered the submissions made by learned counsel for the
parties.
9. The Supreme Court in the case of Dahiben (supra) has held as
under:-
NEUTRAL CITATION NO. 2024:MPHC-JBP:51197
"29.2. The case made out in the plaint is that
even though they had executed the registered
sale deed dated 2-7-2009 for a sale
consideration of Rs 1,74,02,000, an amount of
only Rs 40,000 was paid to them. The remaining
31 cheques mentioned in the sale deed, which
covered the balance amount of Rs 1,73,62,000
were alleged to be "bogus" or "false", and
allegedly remained unpaid. We find the
averments in the plaint completely contrary to
the recitals in the sale deed dated 2-7-2009,
which was admittedly executed by the plaintiffs
in favour of Respondent 1. In the sale deed, the
plaintiffs have expressly and unequivocally
acknowledged that the entire sale consideration
was "paid" by Defendant 1-Respondent 1 herein
to the plaintiffs.
* * *
29.5. If the case made out in the plaint is to be
believed, it would mean that almost 99% of the
sale consideration i.e. Rs 1,73,62,000 allegedly
remained unpaid throughout. It is, however,
inconceivable that if the payments had remained
unpaid, the plaintiffs would have remained
completely silent for a period of over five-and-
half years, without even issuing a legal notice
for payment of the unpaid sale consideration, or
instituting any proceeding for recovery of the
amount, till the filing of the present suit in
December 2014.
* * *
29.8. In Vidhyadhar v. Manikrao, (1999) 3 SCC
573 this Court held that the words "price paid or
promised or part-paid and part-promised"
indicates that actual payment of the whole of the
price at the time of the execution of the sale
deed is not a sine qua non for completion of the
NEUTRAL CITATION NO. 2024:MPHC-JBP:51197
sale. Even if the whole of the price is not paid,
but the document is executed, and thereafter
registered, the sale would be complete, and the
title would pass on to the transferee under the
transaction. The non-payment of a part of the
sale price would not affect the validity of the
sale. Once the title in the property has already
passed, even if the balance sale consideration is
not paid, the sale could not be invalidated on
this ground. In order to constitute a "sale", the
parties must intend to transfer the ownership of
the property, on the agreement to pay the price
either in praesenti, or in future. The intention is
to be gathered from the recitals of the sale deed,
the conduct of the parties, and the evidence on
record.
29.9. In view of the law laid down by this Court,
even if the averments of the plaintiffs are taken
to be true, that the entire sale consideration had
not in fact been paid, it could not be a ground
for cancellation of the sale deed. The plaintiffs
may have other remedies in law for recovery of
the balance consideration, but could not be
granted the relief of cancellation of the
registered sale deed. We find that the suit filed
by the plaintiffs is vexatious, meritless, and does
not disclose a right to sue. The plaint is liable to
be rejected under Order 7 Rule 11(a)."
10. So far as facts of the present case are concerned, the same are
distinguishable for the reason that it is the case of petitioners themselves
that out of total consideration amount of Rs.1,17,76,000/-, only
Rs.3,00,000/- has been paid and the remaining cheques were not
presented by the respondents. Thus, it is clear that petitioners have paid
only Rs.3,00,000/- out of the total consideration amount of
NEUTRAL CITATION NO. 2024:MPHC-JBP:51197
Rs.1,17,76,000/-. In view of the specific admission made by petitioners
that only Rs.3,00,000/- has been paid, it cannot be held that petitioners
are entitled for getting their names mutated in the revenue records on the
basis of sale deed where only an amount of Rs.3,00,000/- out of total
consideration amount of Rs.1,17,76,000/- has been paid. This Court has
not set aside the sale deed relied upon by the petitioners, but since
mutation entry is not a document of title, therefore, this Court cannot
confer title on the petitioners on the basis of a sale deed for which,
according to the petitioners themselves, only an amount of Rs.3,00,000/-
out of total consideration amount of Rs.1,17,76,000/- was paid to
respondents.
11. So far as contention made by counsel for petitioners that at a later
stage, petitioners have paid the remaining amount in cash is concerned,
petitioners have not filed any receipt to show said transaction.
Furthermore, Section 269SS of the Income Tax Act reads as under:-
"269SS. Mode of taking or accepting certain
loans, deposits and specified sum.--No person
shall take or accept from any other person (herein
referred to as the depositor), any loan or deposit or
any specified sum, otherwise than by an account
payee cheque or account payee bank draft or use of
electronic clearing system through a bank account
or through such other electronic mode as may be
prescribed, if,--
(a) the amount of such loan or deposit or
specified sum or the aggregate amount of
such loan, deposit and specified sum; or
(b) on the date of taking or accepting such loan or
deposit or specified sum, any loan or deposit
or specified sum taken or accepted earlier by
such person from the depositor is remaining
unpaid (whether repayment has fallen due or
NEUTRAL CITATION NO. 2024:MPHC-JBP:51197
not), the amount or the aggregate amount
remaining unpaid; or
(c) the amount or the aggregate amount referred
to in clause (a) together with the amount or
the aggregate amount referred to in clause (b),
is twenty thousand rupees or more:
Provided that the provisions of this section shall
not apply to any loan or deposit or specified sum
taken or accepted from, or any loan or deposit or
specified sum taken or accepted by,--
(a) the Government;
(b) any banking company, post office savings
bank or co-operative bank;
(c) any corporation established by a Central,
State or Provincial Act;
(d) any Government company as defined in
clause (45) of Section 2 of the Companies
Act, 2013 (18 of 2013);
(e) such other institution, association or body or
class of institutions, associations or bodies
which the Central Government may, for
reasons to be recorded in writing, notify in
this behalf in the Official Gazette:
Provided further that the provisions of this
section shall not apply to any loan or deposit or
specified sum, where the person from whom the
loan or deposit or specified sum is taken or
accepted and the person by whom the loan or
deposit or specified sum is taken or accepted, are
both having agricultural income and neither of
them has any income chargeable to tax under this
Act.
Provided also that the provisions of this section
shall have effect, as if for the words "twenty
thousand rupees", the words "two lakh rupees" had
been substituted in the case of any deposit or loan
where,--
(a) such deposit is accepted by a primary
agricultural credit society or a primary co-
operative agricultural and rural development
bank from its member; or
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(b) such loan is taken from a primary agricultural
credit society or a primary co-operative
agricultural and rural development bank by its
member.
Explanation.-- For the purposes of this section,--
(i) "banking company" means a company to which
the provisions of the Banking Regulation Act,
1949 (10 of 1949) applies and includes any
bank or banking institution referred to in
Section 51 of that Act;
(ii) "co-operative bank", "primary agricultural
credit society" and "primary co-operative
agricultural and rural development bank"
shall have the meanings respectively assigned
to them in the Explanation to sub-section (4)
of Section 80-P;
(iii) "loan or deposit" means loan or deposit of
money;
(iv) "specified sum" means any sum of money
receivable, whether as advance or otherwise,
in relation to transfer of an immovable
property, whether or not the transfer takes
place."
12. Therefore, any cash transaction exceeding Rs.20,000/- is not
permissible as per law. Furthermore, petitioners have not shown their
source of income out of which they have paid remaining amount of
Rs.1,14,76,000/- to respondents. Thus, petitioners have miserably failed
in prima facie satisfying this Court that the entire consideration amount
of Rs.1,17,76,000/- was paid to respondents.
13. So far as civil suit filed by Noorbano is concerned, counsel for
petitioners is right in submitting that the Additional Commissioner had
given a wrong finding that the civil suit was filed by the father of
respondents. However, even according to petitioners, Noorbano is one
of the co-sharer and she has claimed her share in the property, which
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also includes the land in dispute. If it is held that the land in dispute is
an unpartitioned property, then even petitioners cannot purchase any
specific piece of land.
14. Considering the totality of facts and circumstances of the case,
this Court is of considered opinion that petitioners are not entitled for
getting their names mutated in the revenue records merely by making
payment of Rs.3,00,000/- out of total consideration amount of
Rs.1,17,76,000/-. Under these circumstances, no case is made out
warranting interference.
15. Ex consequenti, order dated 8/1/2024 passed by Additional
Commissioner, Sagar Division, Sagar in case No.0807/Appeal/2023-24
is hereby affirmed though on different grounds.
16. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Arun*
