Heard Shri M.M. Salam, learned counsel counsel for the petitioner, learned State Counsel and Shri Indrajeet Shukla, learned counsel representing the respondent no.5.
Since respondent no.6 is a proforma party, notice was not required to be issued to him.
A preliminary objection as regards the maintainability of the writ petition has been raised by the learned counsel representing the respondent no.5 to the effect that this writ petition has been filed against the orders passed in mutation proceedings, hence the same is not maintainable.
Dealing with the said arguments, it may be observed that it is correct to say that since the mutation proceedings do not decide right and title between the parties and they are summary in nature and are drawn only for fiscal purposes as such ordinarily the petition under Article 226 of the Constitution of India against the mutation orders is not maintainable. The maintainability of the writ petition is at stake also for the reason that the orders passed in mutation proceedings are always subject to declaration of right which may be sought by instituting a regular declaratory suit. However, since an interesting and pure question of law has arisen in this case, the Court in its discretion proceeds to decide the same.
The facts of the case are not in dispute. The undisputed recorded original tenure holder of the land in question, namely, 1/6th part of gata no.65, having an area of 0.547 hectare situate in village-Alahiyapur, Pargana-Hisampur, Tehsil-Qaiserganj, dtrict-Bahraich, was one Deshraj-respondent no.6, who executed a sale deed on 11.04.2007 in favour of the petitioner-Gausul Azam which was registered on 12.04.2007. He is also said to have executed a sale deed in favour of respondent no.5-Smt. Saba Khatoon on 03.04.2007, but it was registered on 20.06.2007. Thus, in the present case, there are two sale deeds executed by the original recorded tenure holder, one in favour of the petitioner and the other in favour of the respondent no.5. The sale deed in favour of the respondent no.5 though executed at an earlier point of time, was registered after the registration of the sale deed said to have been executed in favour of the petitioner.
The question, thus is for the purposes of mutation as to which of the aforesaid two sale deeds is to be taken into account; the one executed earlier, but registered later or the one though executed later but registered earlier.
The mutation case under section 34 of U.P. Land Revenue Act started on a report submitted by the Lekhpal which was furnished on the basis of the sale deed dated 12.04.2007 (this is the date of registration of the sale deed executed on 11.04.2007). The second mutation report was submitted by the respondent no.5 on the basis of the sale deed executed on 03.04.2007 and registered on 20.06.2007 by undisputed recorded tenure holder-Deshraj. The Tehsildar considered the cases of the petitioner as also of the respondent no.5-Smt. Saba Khatoon and vide his order dated 26.12.2007 held that the mutation order should be passed on the basis of the sale deed executed earlier, though registered later in favour of the respondent no.5. The petitioner challenged the said order dated 26.12.2007 passed by the Tehsildar by filing an appeal under section 210 of U.P. Land Revenue Act before the Sub Divisional Officer and the Sub Divisional Officer concurred with the findings recorded by the Tehsildar and accordingly dismissed the appeal vide his order dated 08.02.2008. Thereafter the petitioner invoked the revisional jurisdiction of the Additional Commissioner (Administration), Devi Patan Division, Gonda, under section 219 of U.P. Land Revenue Act, who vide his order dated 16.11.2017 dismissed the same.
Submission of learned counsel for the petitioner is that the sale deed executed in favour of the petitioner on 11.04.2007 was registered on 12.04.2007 i.e. prior to registration of the sale deed executed on 03.04.2007 in favour of the respondent no.5 which was registered on 20.06.2007, as such the sale deed registered earlier even though executed later will prevail for the reason that in terms of the provisions contained in section 54 of Transfer of Property Act read with section 60 of Indian Registration Act, the sale is complete only when the sale deed is registered i.e. it is copied out in the record of registration.
Opposing the submissions made by the learned counsel for the petitioner, it has vehemently been argued by the learned counsel representing the respondent no.5 that the law on the point in issue is well settled, according to which since in terms of the provisions contained in section 47 of the Indian Registration Act a registered document operates from the time from which it would have commenced to operate if no registration had been required or made and not from the time of its registration, accordingly, the sale deed executed in favour of the respondent no.5 on 03.04.2007 though was registered on 20.06.2007 would operate from the date of its execution i.e. with effect from 03.04.2007, which is the date prior to execution of the sale deed on 11.04.2007 in favour of the petitioner. In this view submission is that the view taken by the learned courts below is correct and the orders passed, which are under challenge herein, do not require any interference by this Court in the instant writ petition.
Learned counsel appearing for the respective parties have cited various judgments, which shall be referred to hereinafter.
The judgments cited by the learned counsel representing the respondent no.5 as regards the maintainability of the writ petition, are not being discussed for the reason that since in the facts of this case an interesting legal question has to be decided in this case, the Court has proceeded to entertain the writ petition exercising its discretion under Article 226 of the Constitution of India.
Learned counsel for the petitioner has placed reliance on a judgment of Hon'ble Supreme Court in the case of Ram Saran Lall and others vs. Mst Domini Kuer and others, reported in (AIR 1961 SC 1747). He has also cited a judgment of this Court in the case of Braham Dev and others vs. Board of Revenue and another, reported in [2010 (28) LCD 622].
On the other hand, learned counsel representing the respondent no.5 has placed reliance on Apex Court's judgment in the case of K.J. Nathan vs. S.V. Maruthi Rao and others, reported in [AIR 1965 SC 430]. He has also placed reliance on a judgment of this Court in the case of Om Prakash vs. State of U.P. and others, reported in [2015 (126) RD 365]. Further reliance has been placed by the learned counsel representing the respondent no.5 is on a judgment of Hon'ble Supreme Court in the case of Gurbax Singh vs. Kartar Singh and others, reported in [(2002) 2 Supreme 59]. He also places reliance on judgments of this Court in the cases of Raja Ram vs. Girraj Kishore, reported in [AIR 1964 (All) 369], Smt. Zakiya Kausar and others vs. Deputy Director of Consolidation, Moradabad and others, reported in [2007 (5) ADJ 56] and Mahadeo Singh vs. Mian Din and others, reported in [AIR 1938 (All) 431]. He has also referred to the judgment in the case of Ram Saran Lall and others (supra).
So far as the law laid down by this Court in the case of Om Prakash (supra) is concerned, there is no quarrel on the proposition enunciated therein that as long a sale deed is not cancelled by the competent Court, revenue courts cannot ignore such sale deed for the purposes of mutation.
The judgments cited by the learned counsel representing the respondent no.5 above lay down the principle that unless a sale deed is registered, the mere fact of its execution does not make it operative, but by virtue of section 47 of the Registration Act, once registration has been effected, the sale becomes operative retrospectively from the date of its execution. However, a slight ambiguity appears to be existing on account of the judgment of this Court in the case of Braham Dev and others (supra), wherein it has been laid down that any sale will become complete only after its registration and a sale deed though executed earlier but registered later will not override a sale deed executed later but registered earlier. This judgment in the case of Braham Dev and others (supra) is primarily based on the judgment of Apex Court in the case of Ram Saran Lall and others (supra). To correctly and appropriately understand the law laid down in Ram Saran Lall and others (supra) certain provisions, namely, Sections 47, 60, 61 and 75 of the Registration Act, and Section 54 of Transfer of Property Act are necessary to be referred to, which are extracted hereunder:
47. Time from which registered document operates.--A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
60. Certificate of registration.--(1) After such of the provisions of sections 34, 35, 58 and 59 as apply to any document presented for registration have been complied with, the registering officer shall endorse thereon a certificate containing the word "registered", together with the number and page of the book in which the document has been copied.
(2) Such certificate shall be signed, sealed and dated by the registering officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsements referred to in section 59 have occurred as therein mentioned.
61. Endorsements and certificate to be copied and document returned.--(1) The endorsements and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the margin of the Register-book, and the copy of the map or plain (if any) mentioned in section 21 shall be filed in Book No. 1.
(2) The registration of the document shall thereupon be deemed complete, and the document shall then be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.
75. Order by Registrar to register and procedure thereon.--(1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.
(2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60.
(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration (4) The Registrar may, for the purpose of any enquiry under section 74, summon and enforce the attendance of witnesses, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908).
54. "Sale" defined.--''''Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.--A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
I find it appropriate to refer to the facts of the case of Ram Saran Lall and others (supra) as the law laid down therein has to be understood in the facts of the said case. The question for consideration in Ram Saran Lall and others (supra) was as to whether the plaintiff therein was correctly non-suited for a decree of preemption based on the first demand (talab-i-mowasibat) before registration of the sale deed executed by the vendor in favour of vendee. Hon'ble Supreme Court in the light of the said facts found the plaintiff to be non-suited for the reason that the first demand in the case was made before registration of the sale deed and in that context it was found that since the sale would be complete only after its registration and the first demand was made though after execution of the sale deed but before its registration and the law required for asserting right of preemption to make the first demand after completion of sale as such the plaintiff was non-suited. Hon'ble Supreme Court in this case has also considered section 47 of the Registration Act which provides that a sale deed would become operative from the date of its execution even though registered later. The Apex Court, however, observed that since before it registration the sale was not complete in terms of section 54 of Transfer of Property Act and hence on the basis of the first demand made prior to registration of the sale deed, right of preemption cannot be claimed. The majority view of the Hon'ble Supreme Court in this case, thus, concurred with the judgment of Hon'ble High Court whereby the suit was dismissed in second appeal.
There is no doubt or ambiguity in holding that a sale becomes complete only after its registration. Section 47 of the Registration Act quoted above, clearly states that a registered document operates from the time when it would have commenced to operate if no registration was required or made and not from the date of its registration. Mere execution of a sale deed without its registration does not make the sale complete, however, once a sale deed is registered even at a later date, it will operate from the date of its execution.
A finer legal nuance which may be traced herein is that though a sale deed without its registration will not operate however, once registered, it will operate from the date of its execution, at the same time any right being claimed during the time gap between execution of a sale deed and its registration is not tenable. This exactly is the factual and legal position stated by Hon'ble Supreme Court in the case of Ram Saran Lall and others (supra). In the said case, the vendor had executed a sale deed in favour of the vendee on 31.01.1946. This sale deed was registered on 09.02.1946. The plaintiff claimed right of preemption and accordingly instituted the suit for claiming such right but had made the first demand on 02.02.1946 i.e. prior to registratiion of the sale deed which was done on 09.02.1946.
It is also relevant to observe at this juncture that for claiming a right of preemption the first demand has to be made only on completion of sale and since in the case of Ram Saran Lall and others (supra) on the date on which the first demand was made by the plaintiff i.e. on 02.02.1956, the sale deed executed on 31.01.1946 was not registered (which in fact was registered later, on 09.02.1946) as such Hon'ble Apex Court held that since on the date on which the first demand was made i.e. on 02.02.1946 the sale deed was not registered as such on the date of making of first demand the sale was not complete and hence in such a situation the plaintiff was non-suited for claiming any right of preemption.
A closer reading of the judgments cited above do not leave any doubt so far as following legal propositions are concerned.
(a) In mutation proceedings the revenue courts cannot ignore a sale deed unless it is cancelled by a competent court.
(b) A sale deed executed earlier but registered later will operate from the date of its execution by virtue of section 47 of Indian Registration Act.
(c) A sale becomes complete under section 54 of Transfer of Property Act only once it is registered and not prior to it.
(d) No right can be claimed during the time gap between execution and registration of a sale deed by any party on the basis of such sale deed executed earlier and registered at a later point of time.
So far as the facts of the instant case are concerned, mutation was sought by the petitioner on the basis of a sale deed executed by the original tenure holder on 11.04.2007 which was registered on 12.04.2007. On the other hand, respondent no.5 claimed mutation on the basis of a sale deed executed by the original tenure holder in respect of the same land on 03.04.2007 but registered on 20.06.2007.
From what has been noticed above, it is clear that the sale deed executed in favour of the respondent no.5 is at an earlier point of time though its registration is at a later point of time as compared to date of execution and registration of the sale deed said to have been executed by the original tenure holder in favour of the petitioner. The respondent no.5 is claiming mutation on the basis of sale deed executed in her favour on 03.04.2007 and registered on 20.06.2007. There is no doubt that the sale deed executed on 03.04.2007 and registered on 20.06.2007 will operate retrospectively w.e.f. 03.04.2007 itself. The sale executed in favour of the respondent no.5 would though be complete only on 20.06.2007, however, it will operate w.e.f. 03.04.2007. Merely because the sale deed executed in favour of respondent no.5 was registered at a later point of time than the time of registration of the sale deed said to have been executed in favour of the petitioner, would in my considered opinion not render the said sale deed invalid for claiming mutation. Between 03.04.2007 and 20.06.2007 i.e. the date of execution and registration respectively of the sale deed executed in favour of the respondent no.5, the sale deed will be treated to be inoperative. However, once it is registered on 20.06.2007, it will start operating retrospectively w.e.f. 03.04.2007. Thus, the sale deed executed in favour of the respondent no.5 will override the sale deed executed in favour of the petitioner.
The judgment of this Court in the case of Braham Dev and others (supra) is of no avail to the petitioner as it is based on the judgment of Hon'ble Supreme Court in the case of Ram Saran Lall and others (supra) and in my view the legal principle enunciated in Ram Saran Lall and others (supra) that right of preemption can be claimed only after completion of sale has no application so far as respective claims of the parties for mutation on the basis of two sale deeds in this case are concerned. It is not the completion of sale, rather the date of operation of sale deed, which is relevant in this case. Any sale in respect of which a deed is executed earlier, though is registered later, will also be complete on the date of registration, however, such sale deed will operate from the date of its execution. The facts of this case demonstrate that both the sale deeds are executed and registered and hence though both the sales are complete, however, the sale deed executed in favour of the respondent no.5 will operate w.e.f. 03.04.2007 and the sale deed executed in favour of the petitioner will operate w.e.f. 11.04.2007. The question, however, is as to which of these two sale deeds will override the other. As already held above, the sale deed executed earlier, may be registered later will override the other sale deed which though executed later but is registered earlier.
In view of discussions made above, I do not find any illegality in the orders passed by the learned courts below. The writ petition is, thus, dismissed.
Before parting with this case, I may also observe that a Regular Civil Suit seeking relief of cancellation of sale deed dated 03.04.2007 is pending before the civil court. Thus, the mutation order passed in favour of respondent no.5 shall abide the final outcome of the suit.
There will be no order as to cost.
Order Date :- 25.2.2019 akhilesh/ [Devendra Kumar Upadhyaya, J.]