Rajive Bhalla, J.@mdashCM No. 5346 of 2012
Prayer in this application is to condone the delay of 18 days in refiling the appeal.
Allowed, as prayed.
CM No. 5347 of 2012
Prayer in this application is to condone delay of 06 days in filing the appeal.
Heard.
Delay of 06 days in filing the appeal is condoned.
Letters Patent Appeal No. 2033 of 2012
The appellants pray that order dismissing their writ petition and orders passed by revenue officers entering a mutation, in favour of the private respondents may be set aside.
Counsel for the appellants submits that appellants No. 1 to 3 and their brother Chet Ram purchased 5/6th share, in equal shares from one Rikhi Ram, out of khasra No. 45//2/1/2/1, vide registered sale deed dated 20.11.1973. Pyare Lai son of Mansa Ram purchased 1/6th share, i.e., 02 Marlas vide registered sale deed dated 20.1.1973. Chet Ram, brother of the appellants, passed away unmarried and issueless and therefore. his share was inherited by Murti Devi, their mother. The appellants constructed a house on the plot. Pyare Lal son of Mansa Ram sold more than his share to Ridhima Jain daughter of respondent No. 3 and Monika Goel wife of Rajiv Goel vide sale deed dated 24.12.2010. The appellants have filed a civil suit alleging that the sale deed is forged and fabricated and beyond the share of Pyare Lal.
2. The appellants came to know that respondent Nos. 3 and 4 have forged another sale deed dated 3.8.1988 registered on 4.8.1988 by impersonating the appellants and their mother. The sale deed has also been challenged by way of a civil suit which is pending adjudication. An application filed by respondent Nos. 3 and 4 for entering a mutation, in accordance with sale deed dated 3.8.1988, was rejected on the ground that possession has not been delivered. Respondent Nos. 3 and 4, however, filed a second application for sanction of a mutation. The appellants put in appearance and filed objections to the proposed mutation on the ground that some of the appellants were minors at the time of execution of the alleged sale deed and the appellants have been impersonated. A mutation was, however, sanctioned in favour of private respondents. The appeal filed by the appellants was allowed and the case was remanded to the Assistant Collector 1st Grade, Patran. The private respondents filed an appeal before the Commissioner, who set aside the order of remand and upheld the order passed by the Collector. The writ petition has been dismissed, without considering the legal pleas raised by the appellants or chapter 7.17 of the Punjab Land Record Manual, which provides that a mutation should not be entered if possession has not been delivered. Counsel for the appellants also submits that apart from this legal error, the appellants were not allowed to lead evidence by the Assistant Collector 1st Grade to prove that the sale deed has been obtained by fraud and impersonation. The Commissioner has merely held that as mutation is a mere fiscal entry, no prejudice has been caused to the appellants. In view of Pendency of the civil suit, the mutation should be kept in abeyance.
3. We have heard counsel for the appellants and perused the impugned order.
4. Admittedly, as a civil suit is pending adjudication inter parties, the legality of the sale deeds would be finally decided by the civil Court. A mutation is a mere fiscal entry recorded by a revenue officer to update revenue record and, therefore, neither confers nor divests a party of title. A revenue officer has no jurisdiction, whether conferred by Punjab Land Revenue Act, 1887 (hereinafter referred to as "the 1887 Act") Act or by instructions contained in the Punjab Land Record Manual to opine as to the legality of a registered sale deed. While recording a mutation, a revenue officer merely makes a summary inquiry to satisfy himself, particularly, where rights have been transferred by a registered instrument as to the names of parties, the date of execution and registration, the ownership of the vendor, the extent and nature of the land and the correctness of field numbers, in accordance with powers conferred by Sections 34 and 36 of the 1887 Act, read along with Chapter 7.16 of the Punjab Land Record Manual. The Punjab Land Record Manual, is a compendium of administrative instructions, issued by the Financial Commissioner, in the exercise of administrative powers conferred by the 1887 Act, and must, therefore, confirm to the statutory powers conferred and prohibitions enacted by the 1887 Act. If any administrative instructions prescribe a prohibition, that is not set out in a statute, such a prohibition would be contrary to the statute and, therefore, illegal. Chapter 7.17 of the Punjab Land Record Manual, prohibits a revenue officer from entering a mutation, if possession has not been delivered. The question that arises is the source of the power to prescribe this prohibition and whether such a prohibition can be enforced in law. Sections 34, 36 and 37 of the 1887 Act, deal with power of revenue officer to sanction a mutation but do not enact any provision prohibiting a revenue officer from sanctioning/attesting a mutation, if possession is not delivered. Sections 34 and 36 of the 1887 Act merely empower a Revenue Officer to conduct a summary administrative inquiry. Chapter 7.17 of the Punjab Lands Record Manual, notified by the Financial Commissioner, in the exercise of his administrative powers, is in excess of the prohibitions prescribed by Sections 34 to 37 of the 1887 Act and, therefore, cannot be read into statute, to restrict the power of a revenue officer to sanction/attest a mutation if possession is not delivered. Section 36(2) of the 1887 Act, in fact, empowers a revenue officer, to deliver possession to the party, so entitled. The legality of Chapter 7.17 of the Punjab Land Record Manual, was considered, by a Single Bench, in Supreme Singh v. The Financial Commissioner, Revenue Punjab, and others, Civil Writ Petition No. 9692 of 2008), decided on 8.3.2010: 2010 (1) LAR 558 (P & H) and it was held that Chapter 7.17 of the Punjab Lands Record Manual, cannot be invoked to prohibit a revenue officer, from entering a mutation merely because possession has not been delivered. We find no reason to differ with the opinion recorded in the above judgment.
5. A sale deed, once registered, has to be reflected in the revenue record but where its legality is pending adjudication before a civil court, a note shall be appended in the ''remarks'' column, of the jamabandi, setting out the particulars of the civil suit and if a stay order is in operation, the particulars of the stay order and if possession has not been delivered, an entry to that effect so as to rule out any confusion as to the rights transferred by the sale deed. In view of what has been stated hereinabove, the appeal is dismissed. A direction is, however, issued to revenue authorities to make an entry in the ''remarks'' column, of the relevant jamabandi, that a civil suit regarding title is pending adjudication. The appellants may furnish particulars of the civil suit to the concerned revenue officer.
