M.B.SHARMA, J. - (1.) THIS writ petition is arising out of the mutation proceeding in repect of the agricultural land.
(2.) ONE shiv nandan Singh was admittedly a recorded khateder of the land bearing Khasra No. 116. Measuring 16 Bighas 13 Biswas situated in Balwan, Tehsil Pipalda, District Kota, Rajasthan. He is said to have sold the aforesaid agricultural land to Hazarilal, who is now represented by his legal representatives (respondents Nos. 1 to 4) and to one Ram Kishan who had an equal share, for the consideration of Rs. 500/ - under an unregistered sale -deed., The aforesaid half share of Ram Kishan is also said to have been sold to the aforesaid Hazarilal on 11th May, 1962, again under un -registered sale deed though for more than Rs. 100/ -. The Board of Revenue, under its judgment September 23, 1987, has said that one Ram Kishan purchased 8 Bighas 7 Biswas of land by a registered sale deed on October 6, 1969, from Shiv nandan Singh, who was a recorded Khatedar and on basis of that sale -deed Ram Kishan got the mutation of 8 Bighas, 7 Biswas land attested in his favour on February 3, 1970, by the Gram Panchayat Balwan.The learned Counsel for the petitioner submits that the aforesaid sale in favour of Ram Kishan by Shiv nandan Singh was not of No. 116, but there appears to be no dispute that against the attestation of the mutation in favour of the above named Ram Kishan, an appeal was filed by the petitioners before the learned Additional Collector, who accepted the appeal and set -aside the order dated February 3, 1970, and the case was sent back to the Tehsildar, Indergarh to decided the case afresh after taking the evidence. It appears (hat Naib Tehsildar, Inder Garh, then held that Hazarilal was entitled to get the Khatedari rights on the entire land of Khasra No. 116 and Ram Kishan preferred an appeal against the aforesaid order, which appeal was accepted by the Additional Collector, Kota, and the order of Naib Topsider was set -aside. A second appeal was preferred by the petitioner, which was dismissed. The aforesaid order was challenged and the learned Member of the Board of Revenue, under its order dt. November 23, 1987, which is the impugned order, dismissed the revision petition. In dismissing the revision petition the learned Member of the Board. placed reliance on the Full Bench decision of the Board of Revenue in the case of Beharilal v. Chiranji 1958 RRD 234. The learned Member also observed that the aforesaid decision of the Full Bench was followed in 1974 RRD 548 and 1976 RRD 184. There is no dispute that the aforesaid Full Bench decision of the Board of Revenue held that a person is only entitled for attesation of mutation of land in his favour on the basis of registered sale deed and is not entitled on the basis of unregistered sale deed. The aforesaid view of the Full Bench has been challenged by the learned Counsel for the petitioner in this the petition. His contention is that mutation proceedings are fiscal proceedings and do not decide the title of the parties and are meant only to the limited extent as to from whom the land revenue is recoverable. According to the learned Counsel those proceedings are to be decided on basis of possession and, therefore, even if by un -registered sale deed possession is delivered then that person who is in possession is entitled for attestation of the mutation in his favour. In support of the above contention the learned Counsel has referred, to the provisions of Section 53A of the Transfer of Property Act and to certain provisions of the Rajasthan Land Revenue Act, 1956 (for short the Act) and of the Rajasthan Land Revenue (Land Record) Rules, 1957 (for short the L.R Rules) The contention of the learned Counsel is that a look at Section 53A of the Transfer of Property Act, will show that if a contract to transfer immovable property for consideration has been reduced in writing has been delivered then the transferee has a right to protect his possession. We may state that Section 53A of the Transfer of Property Act, 1882, has no relevancy to the present case. Under the aforesaid Section, the transferee to whom possession has been delivered, though the sale deed has not been registered, has a right to protect his possession from a true owner and can set -up his possession in defence. His right conferred by Section 53A is also defensive right and not an aggressive right.
(3.) COMING to the provisions of the Land Revenue Rules we may state that a bare reading of Rule 119 of the L.R. Rules will show that an entry can only be inserted in mutation register (p. 21), if the transfer has been made by the registered document. That Rule provides that mutation register (p -21) is prescribed for the entry of every acquisition of Khatedari right over the land by allotment, transfer or order of any competent authority. It also includes insertion of entry which effects correction in Jambandi (Khatauni) by an order of the competent court, sale of land by registered document, surrender of Khatedari rights to the Government, succession etc. It will, therefore, be clear that entry in the register can also be made and has to be made in case the sale of land is by registered document. Rules 120 and 121 of the L.R. Rules, contain provisions as to how the mutation is to be attested and therein also the word 'transfer' has been used but if Rules 119 to 121 are read conjointly, to our mind, there can be no dispute that they refer to a transfer under a registered document. Therefore, we are of the opinion that the mutation proceedings, may be fiscal proceedings to decide as to by whom the land revenue is payable but if the transfer is by a registered document followed by possession, the mutation can be attested and the relevant entries in the relevant register (P -21) can be made.;