Kanta Bhatnagar, J.
1. Madhpuri a successful plaintiff in a revenue suit filed this writ application, with the prayer that a writ of certiorari be issued against the judgment of Baard of Revenue dated 28-2-74 and 16-3-73 may also be quashed by which the decree of the two lower courts was reversed.
2. The revenue suit under Section 188 of the Rajasthan Tenancy Act was passed on the ground that petitioner is a Khetedar and the defendants are dying to interfere with his possession and, therefore, they must be restrained from interfering with his possession on the suit agricultural land. The basis of the right of Khatedari was allowed before sale by respondents to Kaloopuri, father of the plaintiff and delivery of possession of this agricultural land on Jeth sud 11 Smt. 2007 for Rs. 500 CO. Consequently. mutation proceedings and the entry in the mutetion in favour of the plaintiff's father dated 22-12-56 was relied upon. There was further mutation in favour of the plaintiff himself after the death of father on 12th June, 1961.
3. The suit was decreed by the Sub-Divisional Officer, Ghittorgarh and Revenue Appellate Authority but was dismissed by the Board of Revenue as entioned above.
4. The principal reason given by the Board of Revenue is that the suit wss bssed on khatedari rights and the plaintiff claims title through a sale deed, which was unregistered and never came on the record and that being so, it could not pass any valid title in favour of the plaintiff or his father.
5. Before us, the finding of the Board of Revenue on the ground that even though the sale may be defective since he has got possession of the land and the mutation has been done in his favour, he sould be deemed to be a khatedar and in any case a tenant in the eyes of law. It was submitted that a tenant is of several kinds and, therefore, in the alternative even if he is not Khatedar, he could be treated as an other tenant under Section 188 of the Act. Section 188 of the Rajasthan Tenancy Act is as under:
Section 188 Injunction against wrongful ejectment:
(1) Any tenant whose right to or enjoyment of the whole or a part of his holding is invsded or threatered to be invaded by his landlord or any other person may bring a suit for the grant of perpetual injunction.
(2) The court may after making the necessary enquiry grant and perpetual injunction in the following case, namely:
(a) if there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion;
(b) if the invasion is such that pecuniary compensation does not afford adequate relief;
(c) where it is probable that pecuniary compensation cannot be got for the invasion;
(d) where the injunction is necessary to prevent multiplicity of proceedings.
6. Tenant has been defined under Section 5(43) of the Rajasthan Tenancy Act, which reads as under:
Section. 5(43) 'Tenant' shall mean the person by whom rent is, or, but for a contract, express cr implied, would be, payable and except when the contrary intention appears, shall include:
(a) in the Abu area, a permanent tenant or a protected tenant,
(b) in the Ajmer area, an ex-preprietary tenant or an occupancy tenant or a hereditary tenant or a non-occupancy tenant a Bhooswami or a Kashtkar,
(c) in the Sunel area, an ex-proprietary tenant cr a pakka tenant tenant or an ordinary tenant,
(d) a co-tenant,
(e) a grove-holder,
(f) a village servant,
(ff) a tenant holding from a land owner,
(g) a tenant of khudkasht,
(h) a mortgagee of tenancy rights,
(i) a sub-tenant,
but shall not include a grantee at a favourable rate of rent or an ijaradar or a thekadar or a trespasser.
7. Mr. Gupta referred to a judgment of the Board of Revenue reported in Brij Lai V. Mathura (1) 1956 RRD 259. This was a case on the correctness of the mutation proceedings by a revenue officer. The Revenue Board was of the view that even if there is no registered sale deed if the possession had changed hands and the mutation has been done in the presence of a vendor, then he cannot be allowed to go back and challenge the mutation.
8. It may be useful to notice here the Privy Council's view on the point of mutation proceedings. In Nirman Singh V. Lal Budra Partab (2) AIR 1986 PC 100 their Lordships of the Privy Council observed as under :
The perusal by their Lordships of the judgment of the Court of the Judicial Commissioner of Oudh, at P. 482 of he record leads their Lordships to think that its judgment is to a great degree based on the mischievous but persistent error that the proceedings for the mutation of names is a judicial proceeding, in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind as has been pointed out times innumerable by the Judgment Committee. They 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 ' A mutation simply means alteration of entry in the revenue records with the object of making it represent the facts with regard to the respective rights and liabilities of persons as these at present are and not as they used to be, so far as this can be done by a summary enquiry. The mutation procedure is not designed for the final settlement of rights. The decision of a mutation is not a final adjudication of a question of title. It is the formal recording of what the Revenue Officers dealing with the case considered the facts in regard to title and the final adjudication on a question of title between the parties is a matter for the Civil Courts excepting so far as the Legislature may by special Statute take away the jurisdiction of the Civil Courts in regard to certain matters and confer the jurisdiction over another authority. It would be impossible to make a complete and correct register of proprietors dejure because right as separate from possession is an obscure matter difficult of ascertainment and falling entirely within the province of the Civil Courts and beyond the cognizance of a Revenue Officer. In 5 P.R. 1912 (Revenue) Gulab Mohammed V. Mst. Zibaro, the following princibles were laid down :
The extent to which possession or the absence of possession should be regarded as proof for mutation purposes that a fact has or has not occurred depends mainly as whether the case is one of the transfer or of inheritance. There are certain fundamental differences between the two classes of cases. In succession cases, a mutation of some sort must be affected. There is in these cases no such thing as a rejected mutation....A particular claim may be rejected but mutation must be sanctioned in favour of some heir or heirs. In transfer cases. on the other hand, and specially in disputed case, 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 at all or not. In succession cases, there is seldom any dispute as to what property shall be mutated. It is the totality of the rights of the deceased right holder. In transfer cases, ont only may there be a dispute as to the area or extent of the right transferred, but also as to the nature of the interest alienated. Such questions arise as to whether the transfer is of share of specific fields; whether shamlat rights are or are not also coveyed; whether a mortgage is without possession; whether redemption money has, or has not been paid. In succession cases it is generally between the transferor and transferee.
Possession as evidence of title has a different value in two classes of cases (cases of inheritance and cases of transfer). The possession of the alert heir who is on the spot and makes the most of his opportunities to circumvent the claims of his rivals by seizing the property of the deceased right holder as soon as the breath leaves his body not count for very much as evidence of title. On the other hand, the possession of the right-holder who all along has been in possession and whole title is impugned by a transferee under an alleged contract counts for a very geat deal. Mutation officers are very chary of deciding against possession in the latter class of eases, and rightly so. They decide in favour of possession because an alleged contract of sale, mortgage, gift or the like, not followed by possession, when disputed by the alien or who remains in possession; is not regarded as a 'fact proved to have occurred or to adopt the language of Barkiwy's Direction the truth of the transfer has not been proved.
It would be clear from the perusal of the above that it has been clearly laid down that the mutation procedure is not designed for the final settlement of rights and the decision of a mutation is not a final adjudication of a question of title.
9. The Privy Council has also made a difference between the case of mutation based on possession on the basis of transfer in comparison, inheritance. In cases of inheritance and such succession, a mutation of some sors must be effected, observed the learned Judges. The transfer cases stand on different footing.
10. Admittedly, the present case is a case of transfer and not of inheritance or succession. A transfer cannot be made without a registered sale deed. The question would have been different if the petitioner would have come as defendant to defend his possession and, therefore, Section 35 A) of the Transfer of Property Act might have come in a case provided him some valid defence.
11. The case referred by the petitioner the Board of Revenue is neither a case on the point involved in the instant case nor it can be of any assistance for considering the principles involved in the present case. Mr. A. L. Mehta, appearing for the respondent No 4 has argued that a mere entry in the mutation cannot convey Khatedari rights to a person According to him, his cliant has got the settlement parcha in his favour and in that he has been recorded as a Khatedar.
12. Be that as it may, the basic question for consideration before us is whether the judgment of the Board of Revenue dated March 16, 1973 contaius any error apparent on the face of the record or suffers from any infirmity of jurisdiction warranting interference by writ of certiorari. The Board of Revenue has taken note of the finding of the trial court and has held that Indra Singh on which such reliance was placed by the plaintiff for entering plaintiff's father's possession in Khasra Girdavari for Smt. 2019 was an unreliable witness as per the finding of the lower court itself. The Board of Revenue also held that settlement department recorded this as Khatedar.
13. We are in agreement with the view expressed by the Board of Revenue that a mere entry of the mutation cannot confer a title in case it is established that it was made on the basis of a sale, which required registration in law but was not registered.
14 Inspite of our repeated quarries, Mr. Gupta could not show in which category of cadet his client would come if on the view we have taken above any conflict with the view of the Board of Revenne, we are reduced to treat him as Khatedar but he could not point out any other category.
15. Since the suit is under Section 188 of the Rajasthsn Tenancy Act, the plaintiff's proves himself to be a tenant under the provisions of the Rajasthan Tenancy Act is the sine qua non of the plaintiff's right to get a decree We are, therefore, of the opinion that the plaintiff has failed to prove that he is a Khetedar and he has further failed to prove that he is a tenant of any other kind which may be recognised as tenant under the provisions of the Rajasthan Tenancy Act and, therefore, the judgment of the Board of Revenue is perfectly justified both on facts and in law.
16. The writ application, therefore, fails and is hereby dismissed without any order as to costs.