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High Court Of Madhya Pradesh
S. SAMVATSAR
SUBHASH CHANDRA - Appellant
Versus
MANJULA - Respondents
S. A. 74 Of 1986
Decided On : 04/07/2004
mutation - property rights - M. P. Land Revenue Code - Section 164, Section 165 - The court held that the absence of mutation in the name of the plaintiff is not sufficient to hold that the plaintiff has no right to sell the property. The plaintiff has acquired title to the suit property under Section 164 of the Code, and mere absence of mutation will not extinguish his rights accrued to him under Section 164 of the Code as the property has devolved in the plaintiff after the death of Kunwarbai who was the bhumiswami.
Fact of the Case:
The plaintiff filed a suit for possession and damages against the respondent, alleging ownership of agricultural land and an agreement to sell the land. The courts below dismissed the suit, stating that the plaintiff, without mutation of the property in his name, had no right to execute the sale deed.
Finding of the Court:
The court found that the plaintiff had acquired title to the suit property under Section 164 of the M. P. Land Revenue Code, and the absence of mutation in the plaintiff's name did not extinguish his rights. The court also found that the defendants were not entitled to the protection under Section 53-A of the Transfer of Property Act.
Issues: The main issue was whether the plaintiff had the right to execute the sale deed without mutation of the property in his name.
Ratio Decidendi: The court held that the absence of mutation in the name of the plaintiff was not sufficient to deny his right to sell the property, as he had acquired title to the property under Section 164 of the M. P. Land Revenue Code.
Final Decision: The appeal succeeded, and the judgment and decree passed by the lower courts were set aside. The suit filed by the appellant was decreed with costs.
( 2 ) BRIEF facts of the case are that the appellant plaintiff has filed the present suit for possession and damages against the respondent alleging that the plaintiff is owner of agricultural land situated at village chibwana having an area of 22 acres and 68 decimal. He has entered into an agreement to sale the said land with the respondents for Rs. 40,000/- vide agreement Ex. P/1 dated 7-6-1976. Out of the said amount, an amount of Rs. 21,000/- was paid at the time of agreement and it was agreed that the balance amount of Rs. 19,000/- shall be paid at the time of execution of registered document. The possession of the land was also handed over to the defendants. As per the plaintiff it was agreed that registered sale deed shall be executed only after vacation of stay order passed by 6th Civil Judge Class ii. Indore in civil suit No. 277-A/72 in which an injunction was passed against the plaintiff from restraining him from transferring the property. As per the plaint allegations the injunction was vacated on 27-9-1976 and this fact was informed to the defendants but the defendants did not take any steps for execution of the sale deed. Plaintiff served a registered notice dated 8-11-1978 to the defendants cancelling the agreement and demanding possession. As the said notice was not complied with, the present suit was filed.
( 3 ) CASE of the defendants is that the property is recorded in the name of kunwarbai, mother of the plaintiff and so long as property is not mutated in the name of the plaintiff, the plaintiff has no right to transfer the property or to execute the sale deed.
( 4 ) BOTH the courts below dismissed the suit by holding that since the property is not mutated in the name of present plaintiff, he is not a Bhumiswami and, therefore, has no right to execute the sale deed.
( 5 ) THIS appeal is admitted by this court on following substantial question of law : "whether the courts below were justified in holding that without mutation the appellants were not competent to sell the suit lands"
( 6 ) SHRI M. L. Agarwal. learned counsel for the appellant submitted that the Courts below have erred in dismissing the plaintiffs suit on the ground that the land is not recorded in the name of plaintiff. Kunwarbai is the mother of the plaintiff and after her death the property has devolved on the plaintiff as per the provisions of Section 164 of the M. P. Land Revenue Code herein after referred to as the 'code') and, therefore, even in absence of mutation in the name of plaintiff, it cannot be said that the plaintiff has no right to sale the property. For this purpose shri Agarwal, relied on the judgment of Apex Court in the case of Smt. Sawarni v. Smt. Inder Kaur (1996) 6 SCC 223, in which the Apex Court has held that the mutation does not create or extinguish the title nor has any presumptive value on title. The mutation of property is only for the purpose of having the land revenue. Shri Agarwal, also relied on the judgment of this Court in the case of Asha Lamba (Smt) v. Board of revenue 1999 Revenue Nirnaya 401, in which it is held that mutation in favour of a person does not affect the rights of the true owner. The mutation is only for a fiscal purpose.
( 7 ) THUS, according to him the absence of mutation in the name of plaintiff is not sufficient to hold that the plaintiff has no right to sale the property. In reply to these arguments. Shri B. A. Nigam, learned counsel for the respondent has invited my attention to various provisions of M. P. Land revenue Code including Section 2 (1), 2 (z), section 57, Sections 110, 157, 158, 159 and 165 of the Code. According to him as the plaintiff has not acquir
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