Alteration Of Settlement Records Impermissible Unless Registered Instrument Is Produced Before Relevant Officer Or Court: J&K High Court
Reiterating that a transfer of immovable property cannot be deemed valid unless it is executed in writing and registered as per the provisions of the Registration Act the Jammu and Kashmir and Ladakh High Court has emphasized that the alteration of settlement records is impermissible unless a registered instrument is produced before the relevant Revenue or Settlement Officer or Court.
Citing Sec 138 of the J&K Transfer of Property Act Justices Atul Sreedharan and Sanjay Dhar observed,
“it is clear that transfer of immovable property cannot be termed as “valid” unless and until, it is in writing and registered in accordance with the provisions of the Registration Act. Sub-section (4) quoted above further provides that unless a person who has obtained a transfer of immovable property by way of a registered instrument, produces such registered instrument before a Revenue or Settlement Officer or Court, the existing entry in any settlement record or paper, cannot be altered”
Background:
The dispute involved a parcel of land measuring two kanals in Jammu. The appellant, Chander Prabha, challenged a decision rendered by a Single Judge that quashed the Joint Financial Commissioner's order in her favor.
The controversy stemmed from competing claims over the property. The appellant relied on an unregistered Agreement to Sell claiming possession of one kanal of the land. Conversely, respondent Som Dutt secured a registered Sale Deed and had the mutation attested in his favor.
The appellant contested the mutation order in multiple appeals before the Settlement Officer, Joint Settlement Commissioner, and ultimately the Joint Financial Commissioner, all of whom ruled in her favor. However, the Single Judge overturned these decisions, affirming that the respondent's registered Sale Deed conferred a valid title and possession under law.
Aggrieved of the same the appellant argued that she had been in possession of one kanal since 1993 based on the Agreement to Sell. She contended that her possession was reflected in the khasra girdwari of Rabbi 2010 and supported by the report of the Naib Tehsildar, which confirmed her possession. She argued that the mutation could not solely rely on the registered Sale Deed unless possession was also verified.
Court Observations:
Highlighting the requirement for valid transfer the Court highlighted the provisions of Section 138 of the Jammu & Kashmir Transfer of Property Act, 1977, emphasizing that a transfer of immovable property cannot be termed as 'valid' unless and until it is in writing and registered in accordance with the provisions of the Registration Act.
The court underlined that unless a person who has obtained a transfer of immovable property by way of a registered instrument produces such registered instrument before a Revenue or Settlement Officer or Court, the existing entry in any settlement record or paper cannot be altered.
Spotlighting the exceptions to registration requirement the Court recorded,
“This requirement is relaxed only in the cases relating to lease of agricultural land for one year or to a lease of any other land for a period not exceeding seven years. The said requirement is also not applicable to transfers by will or by any rule of intestate succession or by operation of law of survivorship.”
It added,
Commenting on the appellant's claim of being in occupation of the land the Court observed,
“.. Even if it is assumed that the appellant is in possession of some portion of the land in question, the same would amount to “unauthorised occupation” and, entry in the revenue record 12 cannot be altered in his favour on that basis. Even the entry in the khasra girdwari in favour of the appellant, which is stated to have been made in Rabbi, 2010, is non est in the eyes of law, as the same is in violation of Section 138(4) of the Act of 1977”
While dismissing the appeal and upholding the Single Judge's judgment the Court concluded,
“The learned Single Judge has rightly concluded that the Revenue Officers, right from the Settlement Officer to the Financial Commissioner, were not correct in coming to the conclusion that the mutation attested on the basis of a Sale Deed without ascertaining the factum of possession of the writ petitioner/respondent No. 6 herein on the purchased land was not sustainable in law.”
Case Title: Chander Prabha Vs UT Of J&K
Citation: 2024 LiveLaw (JKL) 310