IMPORTANT POINT
Gift--Immovable property--In the absence of any cogent evidence in proof of delivery and acceptance of actual physical possession of the property under the gift; mere entry of mutation is not sufficient.

Vinod K.Sharma, J.

1. This order shall dispose of RSA No. 1401 of 2003 and 47 of 1889 both titled Kurdia v. Rameshwar Dass & Ors., as common questions of law and facts are involved in both these appeals.

2. For the sake of brevity, the facts are taken from RSA No. 1401 of 2003. This regular second appeal is directed against the judgments and decree dated 13.5.1999 and 1.2.2003 passed by the learned courts below dismissing the suit filed by the plaintiff-appellant seeking declaration, that the plaintiff and defendant No. 5 are the owners, in equal shares, of land situated within the revenue estate of village Radaur which was earlier owned by Molar Ram son of Nathu. Smt. Bhajji was not owner or co-sharer with the plaintiff and defendant No. 5, and that the Will executed by her was not binding on the rights of the plaintiff and defendant No. 5, with a consequential relief of permanent injunction restraining the defendants No. 1 to 4 from claiming ownership and possession of the suit property.

3. The plaintiff/appellant brought a suit by claiming that defendants No. 1 to 4 were minor sons of defendant No. 5 and were living under the care and custody of their mother Punni Devi who had no adverse interest against the minors. It was claimed that Nathu son of Bhura grand- father of plaintiff and defendant No. 5 was owner of the land in dispute. He is said to have died on 7.8.1912 and mutation of inheritance was accepted and attested in favour of his sons Baru, Molar and Kapoora, in equal shares. Molar was the father of the plaintiff and defendant No. 5 who was said to have partitioned the land with his brother and thus, became sole owner of the property falling to his share.

4. It was the case set up by the plaintiff that Molar grew very old and was unable to cultivate the land and to work any more, so he transferred all his property in favour of the plaintiff and defendant No. 5 vide mutation No. 1887 which was attested by the revenue officer on 17.6.1954.

5. As Molar was unable to work in the fields the plaintiff and defendant No. 5 were cultivating the land before the mutation of Tamleek. They continued to cultivate the same as owners after his death as well his life time without any interruption.

6. Mutation of Tamleek sanctioned in favour of the plaintiff and defendant No. 5 was sent in review on the ground that Molar had obtained Taqavi loan from the State Government, so, the land comprised in Khewat No. 165 as mutated in favour of the plaintiff and defendant No. 5 was mortgaged with the State in lieu of Taqavi loan. It was after the payment of Taqavi loan that the land could go to plaintiff and defendant No. 5 in equal shares free from all encumbrances. The said mutation was entered in the Jamabandi for the year 1953-54 but was discontinued after consolidation proceedings.

7. The revenue authorities failed to perform their duties and the mutation, sent for review was never received back and so it was not incorporated in the next Jamabandi.

8. Molar died in the year 1970 but on account of non-incorporation of the mutation of Tamleek in favour of the plaintiff and defendant No. 5, Molar was wrongly shown to be owner in the revenue record. On his death mutation was sanctioned in favour of the plaintiff, defendant No. 5 and their mother Bhajji widow of Molar. It was further alleged that Smt. Bhajji never claimed any title over the suit land and same remained with the plaintiff and defendant No. 5.

9. It was also the case of the plaintiff/appellant that he was not aware of the entry in favour of Smt. Bhajji so he did not agitate the same earlier. It was further the case set up that the mutation in favour of Smt. Bhajji was non est and infructuous and without any right because Molar was not having any right in the land and so his widow could, not have inherited anything from Molar much less, could become owner or co-sharer.

10. It was also the case of the plaintiff that defendant No. 5 was aware of the fact of sanctioning of