- (1.) THE two points which have been referred to the Full Bench may shortly be stated as follows: - (1) How for is it necessary for a revenue officer to abide by the recitals in a registered deed of sale that possession had changed hands? (2) To what extent effect should be given to a recital in a registered sale deed about transfer of possession at the time of mutation proceedings?
(2.) THE first point in fact raises the crucial question and the second point though it has been put in a separate catagory flows from the first and the answer to it would depend on the answer to the former. The factual background against which these points have arisen stretches back to the year 1947 when Surjya and Parbhati, who were the respondents in the appeal before the Division Bench, alienated their fractional shares in two Khewats, 42 and 65, in which they held under-proprietary rights together with their share in the Shamlat of village Sherpur District Alwar to Maha Singh, the appellant and one Phusa Ahir for a sum of Rs. 6,000/- by a deed of sale which was executed on 9. 1. 47 and registered by the sub-Registrar in the presence of the parties. It was stated in the sale deed that the entire consideration had been received by the vendors and that possession had been delivered to the vendees. On the basis of this registered deed, the Patwari recorded the mutation against S. No. 366 on 13. 2. 47. On 23. 1. 47 the vendors submitted an application in Nizamat Behror questioning the validity of the transaction on the ground that though the sale deed had been got registered by the vendees they had only paid a meagre sum of Rs. 300/- and the balance of the consideration was still outstanding against them. Possession of the land had, therefore, not been transferred to them. The application wound up with the prayer that mutation in favour of the vendees should not be sanctioned. It was directed that this application should be put up at the time of attestation of the mutation. On 18. 4. 47 one of the vendees namely Maha Singh submitted a request to the Assistant Collector, I Grade, to decide the mutation early as there was a likelihood of the vendors being led astray. The Assistant Collector inquired into the matter on the spot and after over-ruling the objection which was raised by the vendors that they had not received the entire consideration from the vendees sanctioned the mutation in favour of the latter on 4. 5. 47. Aggrieved by the order of the Assistant Collector, the vendors went in appeal to the learned Collector who directed that the mutation be rejected as the provisions of sec. 129 of the Alwar State Revenue Code had not been complied with. Against this decision a second appeal was taken by Maha Singh, one of the vendees to the Board in the United State of Matsya. The Board held on 2. 7. 48 that sec. 129 had no application to the case and the main point which should have been gone into by the Collector was whether or not consideration had been received by the vendors. The decision of the learned Collector dated 10. 11. 47 was consequently set aside and the case was remanded to the first appellate court for rehearing the appeal in the light of the observations made above. It appears that the case was thereafter handled by the S. D. O. Alwar who decided the appeal and affirmed the order of the learned Assistant Collector. In revision this order was set aside by the Board of Revenue Matsya on 22. 4. 49 on the ground that the appeal could not be decided on merits in the absence of the appellant. The case was remitted to the learned Collector Alwar for deciding the appeal afresh. The learned Collector upheld the order of the learned Assistant Collector sanctioning the mutation on the ground that possession had changed hands. This order of the learned Collector was upset by the learned Additional Commissioner on an appeal having been filed before him. A revision was subsequently lodged against the order of the learned Additional Commissioner in the Board of Revenue for Rajasthan. It was decided on 17. 7. 52. The case was remanded to the learned S. D. O. with the direction that he shall hold an inquiry on the point whether or not possession had actually been delivered to the vendees. The learned S. D. O. sent the case for inquiry to the learned Assistant Collector who submitted his report on 7. 1. 54. The learned S. D. O. after hearing the parties came to the conclusion that possession had not been transferred by the vendors to the vendees. He, therefore, rejected the mutation on 12. 11. 54 Against this order an appeal was filed by Maha Singh, one of the vendees, before the learned Additional Commissioner, Jaipur which was rejected on 27. 4. 56 on the ground that there was no sufficient proof that possession had been delivered to the vendees. Against this concurrent finding of the courts below a second appeal was lodged in the Board of Revenue. After hearing the appeal the learned Members of the Board referred the case to the Full Bench. It was contended on behalf of Maha Singh that it was incumbent upon the Revenue Officer to press me between the parties to the deed that the possession had passed when there was a recital to that effect in the registered deed. He should have acted on that presumption and sanctioned the mutation. In support of this contention reliance was placed on a passage which was called from a case decided by the learned Financial Commissioner, Punjab and was reported at page 114 of 1932 Lahore Law Times. It was pointed out that the learned Assistant Collector had acted rightly in the beginning in giving formal effect to a registered deed in spite of receipt of consideration being denied, as a deed was prima facie proof of both execution and receipt of consideration. The endorsement of the Sub-Registrar was clear on the point that the vendors had admitted before him that they had received the entire amount of consideration. It was alleged that it was hardly necessary for the Revenue Officer to inquire into the, question of possession when it was not alleged before him by the vendors that possession had not been transferred to the vendees. Significantly the order of the learned Assistant Collector is silent on the point of possession. On behalf of the vendors it was argued that as possession had not changed hands, the courts below had come to a correct decision and had rightly rejected the mutation. Possession according to the learned counsel for the vendors was the crux of the matter. For a decision of these contentions, it is necessary to consider the nature and scope of mutation proceedings as well as the probative value of a recital contained in a registered sale deed to the effect that possession had been transferred. Mutation which literally conveys the idea of change or alteration simply means alteration of the entry in the revenue records with the object of bringing the latter up-to-date and making it represent the facts with regard to there spective rights and liabilities' of persons as these at present are and not as they used to be. The mutation proceedings are not designed for the final settlement of rights. They are concerned merely with the alteration of presumptions. The law, therefore, requires only a summary inquiry ending in a presumptions. The nature and scope of inquiry has been advisedly left by the legislature to the discretion of the revenue officer. After he has arrived at the conclusion what the fact proved or admitted to have occurred is as a result of the inquiry, his work finishes and he is to order making of the entry according to his conclusion. The provisions of the Alwar State Revenue Code dealing with the subject have been borrowed verbatim from the Punjab Land Revenue Act. Sec. 26 of the Code corresponds to Sec. 34 of the Punjab Land Revenue Act. Sec. 29 of the Code is akin to Sec. 37 of the Act. These and other provisions not only envisage the nature of the inquiry but also lay down its scope. Mutation proceedings as was pointed out by their Lordships of the Privy Council in A. I. R. 1926 PC. 100 "are much more in the nature of fiscal inquiries instituted in the interest of the state for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. " The scope of such proceedings being limited, it is incumbent upon the revenue officer in disputed cases to inquire about facts as to possession which are relevant to the dispute. In transfer cases and specially in disputed cases which constitute the test of the whole system the issue is not only what the new entry shall be but whether a new entry shall be made or not Possession as evidence of title in such cases has high value. The possession of a person who all along has been in possession and whose title is impugned by a transferee under an alleged contract of sale accounts for a very great deal. Mutation officers decide in favour of possession because an alleged contract of sale not followed by possession when disputed by the alienor who remains in possession is not regarded as a fact proved to have occurred within the meaning of Sec. 29 of the Alwar State Revenue Code or to adopt the language of Barkley's Directions "the truth of the transfer has not been proved. " The recital in a registered deed of sale that possession was transferred and the admission by the vendor contained in the endorsement of the Sub-Registrar at best raise a presumption of fact which is rebuttable. Where the parties agree to the transfer of possession it is hardly necessary for the revenue officer to peruse any further inquiry into the matter but where possession is in dispute and the presumption which arises from the recital in the deed and endorsement of the Sub-Registrar is displaced by countervailing circumstances which point to the conclusion that possession had not changed hands, the initial presumption would not tilt the balance against the vendor. Admission in a deed of sale which is relevant under sec. 31 of the Evidence Act is not conclusive proof of the matters admitted. This admission differs from an admission made by a party in his pleadings or in the course of trial. Again as laid down in sec. 60 (2) of the Indian Registration Act a certificate recorded by the registering officer and signed and dated by him shall be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act and that the facts maintained in the endorsement referred to in sec. 59 have occurred as there in mentioned. As observed by their Lordships of the Privy Council in 16 A. I. R. 1929. P. C. 81 the evidence of the due registration is itself some evidence of execution against the party so making the admission. In that case a registered receipt produced by one Purshottamdass contained the endorsement by the Registrar that execution was admitted by the presentant Purshottamdass. Their Lordships summing up the whole position succinctly observed "the question is one of fact except in so far as there was as a matter of law a presumption that the registration proceedings were regular and honestly carried out. It seems clear that any objection to the sufficiency of proof on this point could have been denied, circumstances being such that the evidence of due registration is itself some evidence of execution as against the plaintiffs. " We underline the words "some evidence of execution" which leave hardly any room for doubt in one's mind that the presumption of correctness which attaches to the facts mentioned in the endorsement is not conclusive but is a rebuttable one. The result of the discussion is that if the recital contained in a registered sale deed about the transfer of possession points in 6ne direction and it is rebutted by countervailing evidence which points in the other direction that possession had not changed hands, the revenue officer would not act-on the presumption that possession had passed because it has been sufficiently rebutted There may be circumstances of a cogent nature which may dislodge such presumption from its correctness. On the contrary where the parties to a transaction which is embodied in a registered sale deed agree before the revenue officer that possession in pursuance of the transaction had changed hands, it is hardly necessary for the revenue officer to launch out into any inquiry on the point In disputed cases as we have indicated above possession is the fulcrum on which the whole matter turns In the absence of any evidence to the contrary the presumption raised by the recital and the endorsement would have its way. The presumption is however not conclusive and can be displaced by circumstances possessing sufficient probative value which point in a different direction. It is not possible to lay down any hard and fast rule which would apply to every case because the facts of each case are different. The position in law is however clear that such presumptions will not conclude the matter. Our answer to the first point would therefore be that where transfer of possession is disputed it is incumbent on the revenue officer to inquire into that point and to come to a conclusion whether possession had changed hands or not. Presumption raised by a recital in the deed and in the endorsement of the registering officer is not conclusive on the point of possession. It may be displaced in certain cases by sufficient evidence which points to a different conclusion, In cases of this nature the revenue officer can refuse to act on the presumption and to that extent he may not be bound by such recitals. So far as the second point is concerned, as we have pointed out above, it flows from the first and the revenue officer can give effect to such recitals if they are agreed to by the parties concerned. Such recitals can however, be over-ridden by countervailing circumstances which may point to the conclusion that possession had not been transferred nor consideration received. An admission before a registering officer does not prevent an inquiry into these points. It is only prima facie evidence on these points but not conclusive evidence thereon. The onus of proof will be on the person denying that he had received the consideration and delivered possession in pursuance of the transaction. Instead of returning the reference to the Division Bench with these answers, at the request of the parties we heard the appeal on merits, because according to them our decision on these points would go to the very root of the matter and decide the fate of the appeal. Dealing with the merits of the case we may point out that there is no substance in the contention raised before us by the learned counsel for the appellant that an annual register contains many columns out of which one deals with ownership and the other with possession and if possession had not been transferred the necessary alteration could be made in the column relating to ownership. The learned counsel is clearly overlooking the salient features of the case. A Register has to be complied according to some plan. It would be impossible to make it a complete and correct register of proprietors de jure because right as separate from possession is an obscure matter difficult of ascertainment and falling entirely within the province of the civil courts. To enter in the register sometimes the proprietess de-jure and at other times the proprietors de facto would cause confusion and deprive the register of its proper character as uniformly exhibiting the same class of facts. It therefore seems obvious that the latter only should be entered. As contended by the learned counsel for the respondents there were a large number of circumstances from which the only reasonable inference which could be drawn was that possession had not changed hands. These circumstances were (1) denial by one of the vendees viz. Phusa that possession had been delivered in pursuance of the transaction and that the entire consideration had been paid, (2) the entry recorded in khasrateep that the vendors who were allowed to continue in possession of the land were cultivating it as tenants under Maha Singh and others is of a dubious nature and is not entitled to any weight The entry it may be noted here was subsequently scored through. (3) There was a concurrent finding by the courts below on a question of fact. It was neither incompatible with the weight of evidence nor was it such as would work a manifest injustice or was it perverse In second appeal such a finding could not be upset. (4) Absence of any lease deed or other documentary evidence which would indicate that after having stepped into possession of the land in question the vendees gave it back to the venders so that they might cultivate it as tenants under them These circumstances taken together were sufficient to displace the presumption which would arise from a recital in the deed as out the transfer of possession and from the endorsement of the Sub-Registrar. The matter stood concluded by the inquiry which was subsequently held by the Assistant 'collector who come to the conclusion that possession had not changed hands inspite of a recital in the deed to the contrary. In the result, the appeal which is clearly devoid of substance fails and is hereby rejected. .;