Petitioner in cultivating possession, the right of respondent to transfer his share through sale cannot be denied on the sole ground that he is not in possession

FINANCIAL COMMISSIONER PUNJAB

Before :- Shyama Mann, FC.
R.O.R. No. 277 of 1996-97. D/d. 19.3.1998.

Chattar Singh - Petitioner
Versus
Rajinder Singh - Respondents

For the Petitioner :- Mr. Harbhajan Singh, Advocate.
For the Respondent No. 1 :- Mr. P.S. Gill, Advocate.

Punjab and Haryana High Court, Chandigarh

ORDER

Shyama Mann, FC. - This is a reference from the Commissioner, Patiala Division, Patiala dated 11.12.1996 recommending that the order passed by Assistant Collector Grade-I, Nabha on 21.3.1991 and the order passed by District Collector, Patiala dismissing the appeal of the petitioner be set aside.

2. The facts of the case are that Gurbax Singh, respondent No. 2 sold some land in village Badgujran, Tehsil Nabha to Rajinder Singh, Respondent No. 1 vide registered sale deed dated 14.6.1990 and Mutation No. 786 was accordingly entered for attestation. On objection by the present petitioner the mutation was declared contested by Assistant Collector Grade-II and referred to Assistant Collector Grade-I who sanctioned the mutation on 21.3.1991 relying on the registered sale deed. This order was upheld by the Collector as indicated above. Hence the reference.
3. The main grounds in the revision petition are as under :-
    (i) There was a family settlement vide which the land in dispute was given to Chattar Singh on 11.6.1983; Gurbax Singh had promised not to transfer any land.
    (ii) The petitioner was in possession of the disputed land. As per law laid down by 1991 PLJ 219 no mutation can be sanctioned unless the possession is transferred.
    (iii) The petitioner had filed a suit challenging the validity of the sale, and the Civil Court, vide order dated 21.7.1990, had ordered the parties to maintain status quo.
4. In this case, Gurbax Singh, vendor is the father of Chattar Singh, petitioner. Only Rajinder Singh, vendee, who was impleaded as Respondent No. 2 appeared through his counsel; Gurbax Singh is reported to have died. But despite orders his L.Rs. were not impleaded by the petitioner.
As per entries in the mutation sheet (Mutation No. 786) (relating to the sale of the said land) Gurbax Singh sold his 1/4th share in Khata No. 8/13, 14 and 15 measuring 33 kanals 17 marlas, another 1/4th share in Khata No. 9/16, 17 and 18 measuring 24 kanals 1 marla and 1/3rd share in Khata No. 103/141 measuring 32 kanals 10 marlas. In the ownership column he is shown as co- sharer with his other brothers and Chattar Singh is not a co-sharer. In the cultivation column also there is no mention of Chattar Singh's possession on the land. There is no other paper on record to show that the disputed land was under physical possession of Chattar Singh. So, the plea of Chattar Singh that he is in possession is not borne out from the record of this case. It has, therefore, not been possible for me to appreciate the ground on which the Commissioner has recommended this reference.
5. The main thrust of the arguments on behalf of the petitioner is that since the possession has not been transferred the mutation cannot be sanctioned by the Revenue Officers. Both the Commissioner and the counsel for the petitioner have heavily relied on FC.'s ruling reported as 1991 PLJ 219. In addition to that, the counsel for the petitioner has quoted sections 34 to 37 of Punjab Land Revenue Act together with para 7.17 of the Punjab Land Records Manual.
6. As per statutory provisions of Transfer of Property Act, 1882 a person is entitled to alienate his property to the extent of his title therein. It is also settled law that the possession of one co-sharer in a joint holding is the possession of all the other co-sharers, and a co-sharer is deemed to be in possession of every inch of the joint property to the extent of his share. As per provision (b) in para 7.17 of the Punjab Land Records Manual a mutation of sale etc. is permitted to be attested if the "parties all agree before the attesting officer that the possession has passed". In case of sale, the term "all parties" implies all concerned parties i.e. the vendor(s) and/the vendee(s), and not any third party who may have interest of a different nature in the property. Therefore, even if Chattar Singh is presumed to be in cultivating possession (which he is not, as per record), the right of Gurbax Singh to transfer his share through sale cannot be denied on the sole ground that he is not in possession. Therefore, 1991 PLJ 219 and 1990 PLJ 491 are not good citations where the following ingredients are present :-
    (i) The sale is of a share in the common holding; and
    (ii) The sale is within the share of the co-sharer; and
    (iii) Both the vendor and the vendee confirm the execution of the sale deed and the transfer of possession.
As already indicated, Chattar Singh is not even a co-owner with Gurbax Singh and, therefore, has no locus standi to object to the sanction of the mutation. There is no bar under sections 34 to 37 of the Punjab Land Revenue Act to sanction of a mutation in the absence of transfer of physical possession and these sections have been quoted out of context.
7. During arguments before me, the counsel for respondents has submitted a copy of the order of Addl. Civil Judge, Senior Division, Amloh dated 15.3.97 vide which the suit of Chattar Singh against the present respondents has been dismissed with costs. It has been held in this suit that Gurbax Singh is the absolute owner of his share in the property and he had the right to alienate the same. A doubt has also been thrown on the validity of the family settlement dated 11.6.1983; it has been held that it does not bestow any valuable right on the plaintiff, who had admitted in his cross examination that khasra numbers of the land were not mentioned in the said settlement.
8. In view of this position, the reference dated 12.11.1996 from the Commissioner, Patiala Division, Patiala is declined.
Announced.
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