HIMANCHAL SINGH Vs. RAM AUTAR SINGH

JUDGEMENT

(1.) This revision has been filed against the order dated 20-1-1981 passed by 1st Additional Sessions Judge Rampur, in Criminal Revision No. 97 of 1980 arising out of a proceeding under Section 145 Cr. P. C. 2. Facts giving rise to this revi sion are these: "one Badan Singh was tenure-holder of Chak No. 11 measuring 3. 34 acres in village Bichpura, Lalji Tehsil Shahabad, district Rampur. He agreed to sell his land to Himanchal Singh, Yad Ram Singh and Badri Singh revisionists. It is said that he executed a sale deed in his favour on 14-7-1978 but he did not get the sale deed regis tered. On 18-7-1978 Badan Singh executed another sale deed of the same land in favour of Ram Autar Singh, opposite party, and got the sale deed registered on the same day. On 18-8-1978 i. e. one month after the execution of the sale deed in favour of Ram Autar Singh, Himanchal Singh and others presented the sale deed said to have been executed on 14-7-1978 before the Sub-Registrar and desired its compulsory registration. Their sale deed was registered on 31-8-1978. Mutation proceedings started between the parties before the Tehsildar Shahabad. By order dated 31-3-1980 the Tehsil dar passed order of mutation in favour of Ram Autar Singh. Himanchal Singh and others pre ferred an appeal against the order of the Tahsildar, before the S. D. M. Shahabad. Their appeal was dis missed. 3. Proceedings under Section 145 Cr. P. C, started between the parties before the S. D. M. The Magistrate could not come to the conclusion as to which party was in actual physical possession of the land and, therefore, he passed order that the land would remain under attachment till the matter was decided by a competent Court (vide order dated 6-9-1979 ). On the basis of the mutation order Ram Autar Singh moved the Magis trate to release the land in his favour. Himanchal Singh and others filed a revision before Additional Commis sioner. Rohilkhand against the appellate order of S. D. M. in the mutation case and the Additional Commissioner passed a stay order. It means that the Additional Com missioner directed that the mutation be not carried out. But prior to the stay order the name of Ram Autar Singh was mutated in the Khataunt. In view of the stay order, the S. D. M. refused to release the land under Sec tion 145 Cr. P. C, in favour of Ram Autar Singh (vide order dated 9-7-1980 ). Against this order Ram Autar Singh filed criminal revision No. 97 of 1980 before the Sessions Judge, Rampur. The revision was heard and allowed by the 1st Additional Sessions Judge, Rampur on 20-1-1979. The Additional Sessions Judge held that notwithstanding the stay order passed by the Additional Commis sioner the Magistrate should have released the land in favour of Ram Autar Singh because mutation order stood in his favour, the Additional Sessions Judge took support for his view from the cases of Vinai Kumar v. Om Prakash 1980 A. C. C. 24, and Maqsood Ali Khan v. Ahmad Saeed Khan 1957 A. W. R. (H. C.)113. It is against this order of the 1st Addi tional Sessions Judge that Himanchal Singh and others have preferred this revision. 4. Learned counsel for the parties have been heard. Sri B. D. Mandhyan. Advocate, appearing for the revisionist has urged that the sale deed in favour of the revisionists was earlier in time, that by subsequent sale deed dated 18-7-1978 no title passed to Ram Autar Singh, that, therefore, the order of mutation in favour of Ram Autar Singh was against the provisions of law, that after the amendment of Section 35 of the Land Revenue Act it was not necessary for the mutation Court to pass an order of mutation on the basis of actual possession and that the mutation Court could pass an order of mutation on the basis of title. 5. Section 35 of U. P. Land Revenue Act, 1901, was amended by U. P. Act No. 30 of 1975. Prior to the amendment this section was in two parts. The first part related to an application for mutation on the ground of succession under Section 34 (1) (a ). With this part we are not concerned in the present revision. The second part related to an applica tion for mutation on the ground of transfer under Section 34 (1) (b ). This part is in sub-section (2) and reads as follows; "35 (2 ). On receiving a report of transfer under Section 34, or on fact otherwise coming to his knowledge, the Tehsildar shall make such inquiry as appears necessary and then refer the case to the Collector who shall, after making such further inquiry as may be necessary, dispose it of. " This sub section envisaged inquiry by the Tehsildar as well as by the Col lector. 6. The Amending Act No. 30 of 1975 has amalgamated both the grounds of succession and transfer and has done away with the second in quiry by the Collector. New Section 35 has empowered the Tebsildar to pass an order of mutation. New Sec tion 35 reads as follows: "35. On receiving a report of succession or transfer under Sec tion 34, or upon facts otherwise coming to his knowledge, the Tahsildar shall make such inquiry as appears necessary and if the succession or transfer appears to have taken place, he shall direct the annual registers to be amend ed accordingly. " 7. It clearly follows from the new section that if Tahsildar finds that the transfer has taken place, he will pass an order of mutation in favour of the transferee. This new section does not envisage an inquiry into actual possession over the land transferred. Therefore, there is force in the contention of Sri B. D. Mandhyan that in case of transfers the Tahsildar can pass an order of muta tion on the basis of the transfer deed, or any title. 8. At this stage reference may be made to Section 40 of the Land Revenue Act. This section relates to settlement of disputes as to entries in annual register. It lays down that all disputes regarding entries in the annual registers shall be decided on the basis of possession. Sub section (2) of Section 40 further provides that if in the course of inquiry into a dis pute under this section the Collector or the Tahsildar is unable to satisfy himself as to which party is in posses sion, he shall ascertain by summary inquiry who is the person best entit led to the property and shall put such person in possession. 9. It will be noticed that preceeding Section 39 relates to correction of mistakes in the annual register. It lays down that an application for correction of any error or omission in the annual register shall be made to the Tahsildar. Sub-section (2) of this section then lays down that on receiving an application for correc tion, the Tahsildar shall make such inquiry as appears necessary and then refer the case to the Collector, who shall dispose it of after deciding the dispute in accordance with the provi sions of Section 40. 10. It is apparent from a reading of Sections 39 and 40 that Section 40 is applicable in respect of the entries which actually exist in the annual register. Such an entry is to be corrected. Then the procedure laid down in these two sections has to be followed. In other words the rule laid down in sub-section (1) of Sec tion 40 that disputes regarding entries in the annual registers shall be decid ed on the basis of possession, will not be applicable to an application for mutation on the ground of transfer. It follows from this that in the case of transfer an order of mutation can be passed merely on the basis of transfer i. e. title. In view of this, amend ment, in Section 35 by the Act No. 30 of 1975 has made practically no change. 11. Sri B D. Mandhyan has then referred to two cases- (1) K. J. Nathan v. S. V. Maruthi Rao, A. I. R. 1965 S. C. 430, and Gayatri Prasad v. Board of revenue 1973 R. D. (H. C.) 354. In the first case of K. J. Nathan the rele vant observation reads as follows. (Para 19, page 439, Second column);- "if the mortgage by deposit of title deeds was effected on May 10, 1947, or on July 5, 47, the legal position would be the same, as the mortgage deed in favour of the 3rd defendant was executed only on October 10, 1947. Though Ex. A-19 was registered on June 22, 1943, under Section 47 of the Registration Act the agreement would take effect from July 5 1947. It means that the agreement would take effect from the date of the execu tion and not from the date of regis tration. 12. In the second case of Gayatri Prasad, on a consideration of the pro visions of Section 55 of the Transfer of Property Act, it was held that the sale deed became effective from the date of its execution and not from the date of its registration as laid down in Section 47 of the Registra tion Act. In this case Ram Dilar and others respondents executed a sale deed in favour of Gayatri Prasad on 4-4-1965. The vendors refused to get it registered. The vendee applied for compulsory registration and the sale deed was registered on 24-5-1965. In the meantime on 10-6-1965 the vendors executed another sale deed in favour of Smt. Jagwanti and got it registered the same day. The mutation proceedings were decided against Gayatri Prasad. Hence, Gayatri Prasad brought a suit for declaration and possession. His suit was decreed because the sale deed in his favour was effective from before the sale deed in favour of Smt. Jag wanti. 13. Sri S. D. Pathak, learned counsel for the O. P. Ram Autar Singh urged that if the vendor him self got the sale-deed registered it would take effect from the date of the execution of the sale deed and where the sale deed is compulsorily registered then it would take effect from the date of registration and not from the date of its execution. In support of his contention he has refer red to the case of Bibi Zamirunnisa v. S. K. Qudoos A. I. R. 1975 Pat. 67. In this case the relevant observation at page 69, column No. 1 para 8 reads as follows:- "ordinarily whenever, a docu ment is registered, it takes effect from the date of registration. In case of a document which is voluntarily admitted before the Sub Registrar, it operates from the time of its execution (vide Section 47 of the Indian Registra tion Act) and not from the time of its registration. In the case of docu ments which are compulsorily registered the law is slightly diffe rent. It shall take effect not from the date of its execution but from the date of its first presentation for registration-see sub- section (3) of Section 75 of the Act. " 14, On a careful consideration of Sections 47 and 75 (3) of the Registration Act I am of the opinion that the view taken in the case of Bibi Zamirunnisa by the Patna High Court is not correct. It may also be mentioned that in the case of Gayatri Prasad (supra) an opposite view was taken by this Court. 15. Scheme of Registration Act may be analysed. Chapter X of this Act mentions the effects of registra tion and non-registration. There are 4 sections in this Chapter. Section 47 indicates the effect of registration. It lays down that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. It is evident that a document which is not required to be registered operates from the date of its execution. As soon as a document which requires registration is registered it also be comes operative from the date of its execution and not from the date of its registration. It will be noticed that in the matter of operation of a document. Section 47 has placed a registered document at par with a document which is not required to be registered. It is further apparent that the section lays down that a registered document will not operate from the date of its registration. This section is in positive as well as in negative form. There is no qualifica tion in this section to the effect that the document is got registered by the transferor willingly or by the transfe ror compulsorily. 16. Section 48 indicates the effect of registered documents against oral agreement. 17. Section 49 indicates the effect of non-registration of documents required to be registered. It lays down that, an unregistered document shall not effect the immovable pro perty comprised therein or confer any power to adopt or be received as evidence of any transaction effecting such property. It means that if a document is executed by a transferor and it is neither registered at the instance of the transferor or compulsorily registered at the instance of the transferee it will not confer any title upon the transferee. 18. Section 50 indicates the effect of certain registered documents against unregistered documents. 19. Chapter XII of the Registra tion Act relates to refusal to register. A document is compulsorily registered under this Chapter, if the transferor does not come up to get it registered. Section 74 indicates the procedure to be followed by the Registrar. It empowers the Registrar to enquire whether the document had been executed. In case he finds that docu ment was executed and all the legal formalities had been complied with he shall direct the document to be registered [vide Section 75 (1)]. Sub-section (3) of Section 75 reads as follows: "such registration shall take effect as if the document had been registered when it was first duly presented for registration. " The above sub-section makes the com pulsory registration effective from the date the document was first presented for registration. This sub-section does not say from which date the document having been compulsonly registered would be effective or opera tive. Thus this section has absolutely no relationship/connection with Sec tion 47. There is no provision in the Registration Act which makes Section 47 subject to Section 75. Sec tion 47 is quite general and relates to the documents which are got voluntarily registered by a trans feror as well as to the documents which are compulsorily registered by the Registrar under Section 75 (1 ). It is thus apparent from the scheme of the Act that the view taken by the Patna High Court in the case of Bibi Zamirunnisa is not correct. 20. Sri B. D. Mandhyan has, therefore, rightly contended that the sale deed in favour of the applicants would take effect from the date of its execution. Therefore, the Tahsildar should have passed the order of mutation in favour of revisionists. Both the parties were before the Tahsildar. It is undisputed that the Tahsildar did not pass an order of mutation in favour of the revisionists. On the other hand he did pass an order of mutation in favour of the O. P. It is further undisputed that the order of mutation passed by the Tahsildar in favour of the O. P. was confirmed by the S, D. M, in appeal. The revisionists have filed a revision before the Additional Commissioner. The revision is pending. It has not been decided yet in favour of the revisionists. The Additional Com missioner will determine whether the order of mutation passed by the Tahsildar and confirmed by the S. D. M. require any interference. 21. It will next be noticed that in proceedings under Section 145 Cr. P. C. the S. D. M. could not decide which of the party was in actual possession and, therefore, he directed that the land under attachment would continue to remain under attachment till a competent Court decided as to which of the parties was entitled to possession. Such an order was passed on 6-9-1979. After the S. D. M. had confirmed the order of mutation passed by the Tahsildar in favour of the O. P. , the O. P. moved an application in proceedings under Section 145 Cr. P. C. that the land be released in his favour because the mutation had been ordered to be effected in his name and that in fact his name was mutated in the Khatauni over the land in dispute. In the revision the Addl. Commissioner passed stay order. Respecting the stay order the S. D. M. by order dated 9-7-1980, refused to release the land in favour of the O. P. until the Additional Commissioner finally decided the matter of mutation. Against this order the O. P. filed criminal revision which was decided by the 1st Additional Sessions Judge on 20-1-1979 in his favour. The Additional Sessions Judge set aside the order dated 9-7-1980 passed by the Magistrate and directed the S. D. M. to pass an order releasing the attached land in favour of the O. P. It is against this order that the present revision has been filed by the revi sionists. 22. The learned Additional Ses sions Judge relied on two cases Maqsood All Khan v. Sayeed Khan 1957 A. W. R. 113, and Vinai Kumar v. Om Prakash 1980 A. Cr. R, 4, In the case of Vinai Kumar the view taken in the case of Maqsood Ali Khan was followed. It will, therefore, be pertinent to refer to the case of Maqsood Ali Khan. In this case Maqsood All Khan moved an applica tion under Section 145 Cr. P. C. The Magistrate was unable to come to any definite conclusion with regard to possession after the consideration of the evidence produced by the parties and, therefore, he passed an order under Section 146 Cr. P. C. directing the continuance of the attachment till one of the parties got his right estab lished over the property through a competent Court. Maqsood Ali Khan had moved an application for mutation before moving the Magis trate under Section 145 Cr. P. C. The mutation case was decided in favour of Maqsood Ali Khan. The O. P. filed an appeal against the order of mutation before the Com missioner, who stayed the operation of the order of the Assistant Collector regarding the mutation of the name of the applicant. After Maqsood Ali Khan obtained an order of mutation from the Assistant Collector, he moved an application to the Magis trate dealing with application under Section 145 Cr. P. C. for the release or the attached property in his favour. In view of the stay order passed by the Commissioner in the mutation case, the Magistrate rejected the application. Maqsood Ali Khan then filed a revision before the District Magistrate. The District Magis trate was of the opinion that the Magistrate was not bound to wait till the decision of the appeal by the Commissioner in the mutation case and that he was also not bound by the stay order passed by the Commis sioner. The District Magistrate further observed that the Magistrate should have released the attached property in favour of Maqsood Ali Khan. The view taken by the District Magistrate was affirmed by this Court and it was ordered; that the attached property should be released in favour of Maqsood Ali Khan. 23. Sri B. D. Mandhyan has not been able to show any case in which contrary view was taken. 24. It is apparent that the muta tion order as well as the mutation of the name of the O. P. in the Khatauni are final until set aside. So far there is no order in favour of the revi sionists. There is just a stay order passed by the Additional Commis sioner in mutation proceedings. This order obviously has not been passed in proceedings under Section 145 Cr. P. C. An order of mutation passed by Tahsildar is an order of "a competent Court" the term used in Section 146 (1) Cr. P. C. Therefore, the Magistrate dealing with the case under Section 145 Cr. P. C. could easily follow the order of mutation. In this aspect of the matter the Addi tional Sessions Judge has committed no error in setting aside order dated 9-7-1980 passed by the Magistrate and in directing the Magistrate to pass an order releasing the attached land in favour of Ram Autar Singh O. P. 25. The contention of Sri B. D. Mandhyan correctly speaking is that the Court dealing with the proceed ings under Section 145 Cr. P. C. should go into the correctness of the order of mutation, His emphasis in this Court is that as the order of mutation was not in accordance with law and opposed to the provisions of Section 47 Registration Act, the Court in proceedings under Section 145 Cr. P. C. should go behind the express order of mutation in favour of the O, P, This contention cannot be accepted. A criminal Court under Section 145 Cr. P. C. can follow an order passed by a competent Court. Sections 145 and 146 Cr. P. C. do not lay down that in proceedings under Section 145 Cr. P. C. the Magistrate can look into the correctness of the order passed by competent Court. 26. In the present revision this Court can look into the correctness or otherwise of the order passed by the Additional Sessions Judge and not the order passed by the mutation Court. The order passed by the Additional Sessions Judge is well fortified by the two cases cited above. Therefore, this Court cannot appro priately set aside the order of the Additional Sessions Judge on the ground that the mutation Court should have passed an order of muta tion in favour of the revisionist. 27. The result of the above dis cussion is that there is no merit in this revision. It is dismissed. The order dated 28-1-1981 passed by the Court staying the operation of the order dated 20-1-1981 passed by the Additional Sessions Judge, Rampur, is vacated. .