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2015 Supreme(Chh) 114
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Kesarmani Das and Ors. - Appellants
Vs.
Rewati Bai and Ors. - Respondents
Second Appeal No. 1301 of 1999
Decided On: 08.04.2015
Advocate Appeared:
For the Appellants: R.N. Jha, Nimesh Jha
For the Respondents: Ratnesh Agrawal
Headnote:
Specific Relief Act - Section 26 - Suit of plaintiffs filed for declaration of title and permanent injunction - Trial Court - Possession of the suit land - Defendant No. 1 to 5/appellants herein filed their joint written statement stating inter alia that defendant appeal purchased the suit land by registered sale deed dated 06.08.1963, thereafter, defendant sold the suit land to the defendant and the name of defendant stood recorded in the revenue records in presence of Husband of plaintiff and as such the plaintiffs suit is liable to be dismissed. In addition to filing of written statement defendants also raised counter claim, by seeking relief that they are entitled for possession of suit land bearing along with house constructed therein and plaintiffs be restrained by decree of permanent injunction from interfering with their peaceful possession - The Trial Court by its judgment decreed the suit holding that plaintiffs are owner and title holder of suit land bearing and plaintiffs are also in possession of the suit land – Held, Determination of aforesaid submission takes me to the next question with regard i.e. order mutation dated 20.06.1975 whereby the revenue authority has recorded consent of father of plaintiff and husband of plaintiff No. 1 for mutation of suit land in favor of defendant fact remains that mutation has to be done on the basis of sale which has been transferred in favor of defendant No. 1. It has also been held by both the courts below and-this court also that late did not of defendant and therefore, the question of consent of to the mutation of said land in favors of defendant does not arise - It has to be read as consent for mutation of other parts of land i.e. which has been transferred by said of defendant Even otherwise, it is well settled law that mutation is only for the purpose of making revenue records up to date for collection of land revenue and mutation of property does not confer any right, title or interest over the said property. Therefore, the order of mutation in presence of and his consent, if any, would not confer any title to defendant over the suit land - Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favor mutation is ordered to pay the land revenue in question - Learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favor conveys title in her favors - This erroneous conclusion has vitiated the entire judgment - Accordingly, it is held that concurrent findings recorded by both the courts below holding that plaintiffs are entitled for decree for title and permanent injunction over subject suit land being is a concurrent-findings of fact based on record, in which, I do not find any illegality or perversity – Consequently substantial question of law formulated is answered – Appeal dismissed
Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered in this second appeal is as under:-
"Whether both the courts below were justified in decreeing the suit of plaintiffs filed for declaration of title and permanent injunction ignoring the fact that the plaintiffs did not file the suit for rectification of the sale deed dated 06.08.1963 (Ex. P/8) under Section 26(1)(a) of the Specific Relief Act ignoring the fact that the original seller Ganesh, husband of plaintiff No. 1 had given consent for mutation in the name of defendant No. 1 in the mutation proceeding duly recorded in Ex. P/10 dated 05.09.1975 and pursuant to which the name of defendant No. 1 was recorded in the revenue record thereby recording a perverse finding?"
[The parties will hereinafter be referred as per their status shown in the suit before the trial court]
The imperative facts necessary for answering the substantial question of law formulated, are as under:--
"(2.1) The original plaintiff-Rawati Bai, Nagendra and Keshav instituted a suit for declaration and permanent injunction against the defendant No. 1 to 5 stating inter alia that Husband of plaintiff No. 1 and father of plaintiff No. 3 i.e. Ganesh has not sold the suit land Sheet No. 90 Khasra No. 45/1 area 2000 sq.ft. to the defendant No. 1/Kesharmani by registered sale deed dated 06.08.1963 and after death of Ganesh they are in possession of the suit land through the tenant Harihar Das and the defendants are trying to interfere with their possession, forced them to institute suit for declaration of title and permanent injunction."
2. Defendant No. 1 to 5/appellants herein filed their joint written statement stating inter alia that defendant No. 1 purchased the suit land by registered sale deed dated 06.08.1963, thereafter, defendant No. 1/Kesharmani sold the suit land to the defendant No. 2 to 5 on 05.09.1975 (Ex. P/10) and the name of defendant No. 1/Kesarmani stood recorded in the revenue records in presence of Husband of plaintiff No. 1 i.e. Ganesh and as such the plaintiffs suit is liable to be dismissed. In addition to filing of written statement, the defendants also raised counter claim, by seeking relief that they are entitled for possession of suit land bearing Khasra No. 45/1 sheet No. 90 alongwith house constructed therein and plaintiffs be restrained by decree of permanent injunction from interfering with their peaceful possession.
3. The Trial Court by its judgment dated 19.09.1996 decreed the suit holding that plaintiffs are owner and title holder of suit land bearing Khasra No. 45/1 area 2000 sq.ft. and plaintiffs are also in possession of the suit land.
4. Questioning the said judgment of trial court, the defendants/appellants herein preferred first appeal. The first appellate court by impugned judgment affirmed the finding of trial court dismissing the first appeal. Against the said judgment and decree of first appellate court, this second appeal has been preferred, in which, the substantial question of law has been formulated and which has been mentioned in the opening paragraph' of this judgment.
5. Shri R.N. Jha, learned counsel appearing for the appellants/defendants 1 to 5 would submit that both the courts below have committed grave error in holding that plaintiffs are entitled for decree of declaration and permanent injunction ignoring the jurisdictional fact that plaintiffs did not file any suit for rectification of sale deed dated 06.08.1963 (Annexure P/8) under Section 26(1)(a) of the Specific Relief Act, 1963 (for short, the Act, 1963). Arguing further, he would submit that both the courts below have completely ignored the fact that the Husband of plaintiff No. 1 and father of plaintiff No. 1 Ganesh had given consent for mutation of suit land in the name of defendant No. 1 in a duly constituted mutation proceeding which is apparent from order dated 05.09.1975 (Ex. P/10) and as such the findings recorded by both the courts below holding that pla
