JUDGMENT
H.N. Sarma, J.
1. This Second Appeal is filed by the plaintiff/appellant challenging the judgment and decree passed by the learned Civil Judge (Senior) Division, Morigaon in Title Appeal No. 3/2001, dated 5.9.2001 reversing the judgment and decree passed by the learned Civil Judge (Junior) Division No. 1, Morigaon in Title Suit No. 27/93 on 31.3.2001 by which the learned trial court decree the suit against the defendant/ respondents.
2. The pleaded case of the plaintiff/appellant, inter alia, is that 4(four) plots of land measuring 3 Bighas covered by Dag No. 219, P.O. No. 6, 4B-1K covered by Dag No. 198 of P.P. No. 8, 4K-4L, covered by Dag No. 229 of P.P. No. 7 and 2B-0K covered by Dag No. 217 of P.P. No. 5 in total 10 bighas, 15 lechas of land situated at No. 2, Neili Bagisha under Uttar Khola Mouza, in the district of Morigaon is owned and possessed by the plaintiff, which is fully described in the schedule of the plaint. The plaintiff, purchased an area of land measuring 3 Bighas (in Dag No. 219) from one Dwarcharan Namsudra, and an area of land measuring 4B-1K (Dag No. 198) from one Biseswar Biswas by executing two registered sale deeds, being sale deed 715/88-89 and 1099/91 which was duly registered before the Sub Registry, Morigaon. The rest of the suit land measuring 4K-4L(Dag No. 229) were purchased from Nripendra Dey and 2B-OK-10L (Dag No. 217) from Rajbehari Barman by the consent of the parties signified in the revenue, record without executing any sale deed. The appellant/plaintiff is possessing the suit land by paying land revenue and during the peaceful possessing the suit land by paying land revenue defendant No. 1, having started to put a fencing of barbed wire covering more than hundred Bighas of land including the land of the appellant/plaintiff, the appellant/plaintiff filed T.S. No. 27/93 in the Court of the learned District Judge, Morigaon. In the said suit the appellant/plaintiff prayed for the following reliefs:
(a) A decree be passed declaring rights, title, interest of the plaintiff over the suit land declaring the defendants are more trespassers over the suit land and the defendants have no right to occupy the suit.
(b) A decree for recovery of possession in respect of the suit land be passed and the plaintiff be put in to the possession of the suit land, described in the schedule below by evicting the defendants from this said land.
(c) A decree for permanent injunction be issued restraining the defendants their agents, employees from enjoying the suit land by plaintiff after delivery of possession to him.
(d) Cost of the suit be decreed against the defendants and in favour of the plaintiff.
(e) Any other relief or relief which the plaintiff is entitled to in law, equity any good conscience such relief or reliefs may kindly be granted to the plaintiff.
3. Summons of the suit land having been served, the defendants/respondents contested the suit by filing their written statement denying the claim of the plaintiff.
4. The case of the defendants/respondents is of total denial. The sale deeds by which the plaintiff stated to have purchased, the said land were also not admitted and stated to be not believable. The defendants at para 16 of the written statement pleaded, inter alia, they are the absolute owner of the Tea Estate, now known as M/s. Gopal Krishna Tea Co. (P.) Ltd. and from the date of their purchase, they are in possession of the same area. The allegations made by the appellant/plaintiff regarding the creation of fencing covering the area of the appellant/plaintiff has been denied in toto.
5. The learned trial court upon consideration of the pleadings framed the following issues:
(i) Whether there is any cause of action of the suit?
(ii) Whether the suit is maintainable in the present form?
(iii) Whether the suit is barred by law of limitation?
(iv) Whether suit is bad for non-joinder and mis-joinder of necessary parties?
(v) Whether the court fee paid by the plaintiff is inadequate?
(vi) Whether the plaintiff has got right, title and interest over the suit land?
(vii) To what relief the parties entitled to?
6. During the course of trial, the appellant/plaintiff examined as many as seven witnesses including the plaintiff and exhibited 16 members of document. On the other hand, the defendants/respondents examined five witnesses and exhibited 4 members of documents. The appellant/plaintiff exhibited the sale deed in question by which the land was purchased by him as Exhibits 1 and 2, Ext. 2 is the certified copy of the order of settlement officer. Ext. 4-7 are the original sale permission was also exhibited as Ext. 16(1) to 16(2). The exhibited documents on the side of the defendants/respondents are Chitha map and copy of the Chitha mutation order passed by the revenue authority which discloses that the names of the both the plaintiff and defendants. At the close of the trial, the learned trial court upon consideration of the materials and evidence available on record decreed the suit declaring the right, title and interest of the appellant/plaintiff over the suit land and also held that the appellant/plaintiff is entitled for recovery of the possession of the suit land, vide his judgment and order dated 31.3.2001 passed in T.S. No. 27/93.
7. The said judgment and decree was challenged by the defendants/ respondents in the court of the learned Civil Judge (Senior) Division, Morigaon by filing Title Appeal No. 3/2001. The learned appellate court after hearing the learned counsel for the parties and upon re-appreciation of the statement of the witnesses allowed the appeal reversing the judgment and decree passed by the learned trial court, vide judgment and order dated 5.9.2001 passed in the Title Appeal No. 3/2001. Challenging the aforesaid judgment and decree dated 5.9.2001 the appellant/plaintiff has approached this court by way of this Second Appeal.
8. At the time of admission of the appeal on 4.1.2002, the following substantial questions of law were framed by this Court:
1 Whether the actual physical delivery of possession of the land is a condition precedent of sale as described in Section 54 of the Transfer of Property Act?
2. Whether mutation of a land is the prima facie proof of title?
I have heard Mr. A.C. Sarma, learned senior Counsel for the appellant and Mr. G.N. Sahewalla, learned Counsel for the respondents. I have also perused the pleadings and materials available on record.
9. Dealing with the first substantial question of law it is seen that the learned appellate court denied the title of the appellant/plaintiff over the suit land coming to a finding that there was no delivery of possession of the suit land to the appellant/plaintiff by his vendors nor by the original owner to the vendors of the plaintiff.
10. Section 54 of the Transfer of Property Act defines “sales”. It also provides as to how a sale of tangible immovable property is to be effected. Transfer of tangible immovable property of the value of Rs. 100 or upwards or in the case of a reversion or other intangible thing, can be made only by a registered instrument. Section 17 of the Indian Registration Act; make such a deed-effecting sale as compulsorily registerable.
11. Looking at the Exts. 1 and 2 exhibited by the appellant/plaintiff, it is seen that those two sale deeds were duly registered by the competent authority and the land described in the schedule of the sale deeds were transferred for valuable consideration of Rs. 5,000 and Rs. 6,000 respectively in favour of the appellant/plaintiff by the vendors. Those two sale deeds have been exhibited without any objection. Section 54 of the T.P. Act provides that in order to complete a sale the following ingredients are necessary. (A) Transfer of ownership (B) Transfer must be made in exchange for a price (C) Such price may be paid or promised. By virtue of Transfer of Property Assam Amendment Act, 1976 (Assam Act X of 1976), for the expression “by an instrument registered in the State of Assam, notwithstanding anything contained in the Indian Registration Act, 1908, Act (16 of 1908) to the contrary”. For the purpose of deciding the issue in hand it is not necessary for us to have any further discussion upon the aforesaid amended provision made by Assam Act X of 1976.
12. It is, thus, clear that in order to acquire a valid right, title and interest over any immovable property valued Rs. 100 or above by way of purchase it should be effected by a registered instrument by payment or promising to pay the consideration money. The Transfer of Property Act does not lay down any condition that in order to acquire title over a property purchased by executing registered sale deed, the delivery of possession is a condition precedent. By virtue of the registered sale deed referred to above, the right, title and interest over the land mentioned in the Schedule of the sale deed and interest over the concerned land has been validly transferred in favour of the plaintiff/appellant. The defendants/respondents have not challenged the aforesaid sale deeds by counter-claim or otherwise. The sale deed in question has been duly proved by the appellant/plaintiff by adducing necessary evidence and exhibited without any objection. Although it is submitted by Mr. Sahewalla that vendor of the sale deed not having been examined by the plaintiff/appellant to prove the sale deed, the same cannot be said to have been legally proved, the said submission is not tenable in law, inasmuch as, when a document is exhibited, along with the document its contents will also go. The learned lower appellate court reversed the findings on issue No. 6 on re-appreciation of the statement of witnesses, for alleged non-delivery of possession of the suit land by the vendors of the plaintiff. Such possession not having any bearing in the transfer of title by virtue of the registered sale deed, the said submission is not acceptable. Accordingly, the finding on the issue No. 6 arrived at by the learned appellate court on wrong notion of law is set aside and the finding that arrived at by the learned trial court is restored.
13. Regarding the second substantial question of law, namely, whether the mutation of the land is a prima facie prove of title, it is not longer res integra that mutation does confer any title upon the persons whose names are mutated with the revenue record. In Swami v. Inder Kaur , the Apex Court held at para 7, inter alia, as follows:
…Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value of title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question….
14. Such an order affecting mutation in favour of a person prima facie shows possession over the land in question as per provision of Section 50 of the Assam Land and Revenue Regulation, 1886. In order to have a title over the land apart from the mutation something more is necessary to claim title over the property which may be by way of transfer in any form or by inheritance. A mutation order is passed to facilitate payment of land revenue. A chitha mutation can be passed by following the procedure under the Assam Land and Regulation. If any person having better right or title objects such chitha mutation such person is entitled to challenge it before the competent revenue authority and in that event the authority is required to decide the matter on the basis of the rival claim between the respective claimants.
15. In the instant case, there is no evidence on record that the Chitha mutation effected in favour of the appellant/plaintiff has been objected to before the competent authority. In fact the exhibit Ga and Kha which are copies of the Chitha prepared by the authority disclose the names of both the plaintiff and defendants. Such Chitha is prepared on the basis of actual physical possession by the revenue authority. In the absence of any contrary evidence on record, the order of mutation in favour of the appellant/plaintiff prima facie leans in his favour of having a prima facie title over the land in question, though by itself is not established.
16. Answering the substantial questions framed in the appeal as aforesaid, the Second Appeal is allowed. The judgment and decree passed by the learned lower appellate court in T.A. No. 3/2001 is set aside and that of the learned trial court passed in Title Suit No. 27/93 is restored.
17. Registry is directed to send down the record forthwith.
18. No costs.
