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2012 Supreme(HP) 569
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Kuldip Singh, J.
Nourang – Appellant
Versus
Smt. Maltu – Respondent
R.S.A. No.638 of 2000.
Decided On : 20.11.2012.
For the Appellant :Mr.Nimish Gupta, Advocate.
For the Respondents:Mr. N.K. Thakur, Senior Advocate with Mr. Surender Kumar, Advocate, for respondents No.1 and 3.
The main legal point established is that the relinquishment of property rights requires registration under the Indian Registration Act and must conform to the provisions of relevant land record manuals.
Headnote:
Relinquishment - Property Dispute - Indian Registration Act, 1908, H.P. Land Record Manual - Section 17 of Indian Registration Act, paras 8.1(3)(5) and 8.36-B of H.P. Land Record Manual
Fact of the Case:
The respondent filed a suit for declaration and injunction against the appellant, claiming joint ownership of a land and alleging that a mutation in favor of the appellant was illegal. The trial court decreed the suit in favor of the respondent, which was affirmed by the district court.
Finding of the Court:
The court held that the relinquishment of the respondent's share in the land required registration under Section 17 of the Indian Registration Act, and the mutation in favor of the appellant was illegal.
Issues: The issues revolved around the validity of the relinquishment, the legality of the mutation, and the entitlement to possession of the land.
Ratio Decidendi: The court determined that the relinquishment required registration under the Indian Registration Act and the provisions of the H.P. Land Record Manual, and the mutation was illegal as it did not conform to the legal requirements.
Final Decision: The appeal was dismissed, upholding the lower court's decision in favor of the respondent.
Kuldip Singh, J.
This appeal has been filed by defendant No.1 against judgment, decree dated 04.11.2000 passed by learned District Judge, Chamba, in Civil Appeal No.53 of 2000, affirming judgment, decree dated 20.03.2000 passed by learned Senior Sub Judge, Chamba, in Civil Suit No.305 of 1996. The respondent No.2 Man Singh has died and his legal representatives have been brought on record. The name of respondent No.4 Titti has been deleted.
2. The brief facts are that respondent No.1 had filed a suit for declaration and injunction against appellant that she was joint owner to the extent of 1/7th share in the land, more specifically, described in the plaint, hereinafter referred to ‘suit land’. The further case of the respondent No.1 was that rapat No.108 dated 23.11.1994 and mutation No.260 dated 28.02.1995 attested by Assistant Collector IInd Grade in favour of appellant be declared illegal, in alternative decree for possession.
3. It has been alleged that respondent No.1 was joint owner in possession of the suit land as per jamabandi 1993-94. The appellant in connivance with revenue staff got mutation No.260 dated 28.02.1995 attested in his favour regarding share of respondent No.1, she never relinquished her share in the suit land in favour of appellant. The respondent No.1 never made a report to the Patwari regarding relinquishment.
4. The suit was contested by appellant by filing written statement. He took preliminary objections of maintainability, estoppel, locus-standi. On merits, it has been pleaded that respondent No.1 is the sister of appellant. The respondent No.1 is married to Musadi and she resides with her husband. The respondent No.1 relinquished her share in favour of appellant. The respondent No.1 herself went to Patwari halqua, made a report about relinquishment of her share in favour of appellant. On the basis of report, mutation No. 260 dated 28.02.1995 was attested in favour of the appellant. He denied his connivance with revenue staff. The appellant asserted his possession on the suit land qua the share of respondent No.1. The other respondents filed written statement and admitted the claim of respondent No.1.
5. The respondent No.1 filed replication and reiterated her case, she denied the case put-forward by appellant. On the pleadings of the parties, the following issues were framed:-
1. Whether the plaintiff has relinquished her share in the suit land in favour of defendant No.1 as alleged? OPD-1.
2. If issue No.1 is proved in the affirmative, whether the relinquishment of the share of the plaintiff in favour of defendant No.1 is by fraud etc. as alleged? OPP.
3. Whether mutation No.260 dated 28/2/1995, is illegal as alleged? OPP.
4. Whether the plaintiff is entitled to a decree for possession of the suit land as prayed for? OPP.
5. Whether the suit is not maintainable? OPD.
6. Whether the plaintiff is estopped from filing this suit by her act and conduct? OPD.
7. Whether the plaintiff has no locus-standi to file the present suit? OPD.
7A. Whether rapat dated 23.11.1995 is illegal, null and void as alleged? OPP.
8. Relief.
The issues No.1, 4 to 7 were answered in negative and issues No.2,3 and 7-A in affirmative and the suit was decreed by trial Court on 20.03.2000. The respondent No.1 was declared joint owner in possession of 1/7th share in the suit land, rapat No. 108 dated 23.11.1994 and mutation No.260 dated 28.02.1995 were declared illegal. The appeal filed by appellant against judgment, decree dated 20.03.2000 was dismissed by learned District Judge on 04.11.2000, hence second appeal which has been admitted on following substantial questions of law:-
1. Whether the learned courts below were right in holding that relinquishment is required to be compulsorily registered under Section 17 of the Indian Registration Act ignoring the provisions of para 8.1(3)(5) and para 8.36-B of the H.P. Land Record Manual?
2. Whether release, relinquishment or surrender is legally required to be reduced in wri
