In the background to this article I have to mention that Cadastral Survey (CS) was prepared under Bengal Tenancy Act, 1885 starting from 1888 ending in 1940, which has a presumptive value. At the time of abolishing the Zamindari system, i.e. rent receiving interest government made an over all survey in the country namely State Acquisition (SA) survey from 1956 to 1962. By this settlement, the government made the raiyats as owners of the raiyati lands and therefore this S.A. record has the great importance in case of ownership in the lands. Meanwhile, an over all survey has been done in the country starting from 1980, somewhere yet not completed, under the State Acquisition and Tenancy Act, 1950 naming BRS or BS or RS.
It is pertinent to mention here that after final publication of every record of rights done under government authority has a presumptive value of correctness and until and unless it is rebutted by evidence in a court of law it must be presumed to be correct. Ref. 50 DLR 186, 9 MLR (AD) 82, 1 BLT 1 para 12, 16 MLR 130 substance, 2 XP (AD) 105 para 8, 50 DLR 186, 17 BLC 198 para 16, 17 BLC (AD) 174. Especially, as per section 144A of the State Acquisition and Tenancy Act the present finally published record of record revised under section 144 of the Act, i.e. BRS Khatian, has a presumption of correctness, this presumption continues of till be rebutted by reliable evidence, 50 DLR 186, 17 BLC 198 para 16, 17 BLC (AD) 174.
Now we may come to the main article.
In case of transfer of properties in our country, it had been practiced from the C.S. period that the recorded tenants of C.S. and thereafter SA records would transfer the lands by mentioning the transferor’s ownership some from C.S. record or some from S.A. records. Even after publication of the present BRS record some persons would transfer lands mentioning their ownership from C.S. records, though their or their predecessors’ names are absent in the S.A. and BRS records.
In such circumstances, situations arose in the whole country that even after publication of present BRS record of rights, i.e. after passing near about 100 years than publication of the C.S. record, some persons had been transferring their properties mentioning in the deed only the C.S. khatian, they did not mention that whether the S.A. and BRS record has been published in their or their predecessors’ names or not. In such cases, it was found that though the said transferors’ predecessors were tenants in C.S. record but in S.A. and BRS record the transferors’ or their predecessors’ names have not been recorded; rather the said lands had been recorded in S.A. and BRS records in third persons’ names and by virtue of those records of rights those third persons had been possessing the said lands for a long period and thereby acquired good title in the said lands and accordingly the said transferors did not have any title or interest in the transferred lands and though had but had been extinguished by adverse possession much ago than such transfers. By such titleless persons’ transfers there arose various disorder and chaos in the society and various types of complicated disputes as to title to the lands. Another problem arose that somewhere it was found that the CS tenants were traceless or unavailable, whether by death issueless or by leaving the country or locality. In such situations, some local touts and land-grabbers created some transfer deeds showing some imaginary and false heirs of said C.S. recorded tenants and thereby tried to grab lands of others, especially the government’s khas khatians’ lands.
In such a situation, the legislature made a new provision in law of the land by inserting section 52A in the Registration Act providing that:- Sec. 52A: Upon presentation of an instrument of sale of any immovable property, the Registering Officer shall not register the instrument unless the following particulars are included in and attached with the instrument namely –
(a) the latest Khatian of the property prepared under the State Acquisition and Tenancy Act, 1950, in the name of the seller, if he is owner of the property otherwise than by inheritance;
(b) the latest Khatian of the property prepared under the State Acquisition and Tenancy Act, 1950, in the name of the seller or his predecessor, if he is owner of the property by inheritance;
What ‘latest khatian’ means is not specified in sec. 52A or in any other section of the Registration Act. Even the State Acquisition and Tenancy Act, 1950 itself does not provide anything about what is latest khatian. However, in view of the legislative intent, as stated herein above, ‘latest Khatian’ means here the khatians prepared and revised u/s. 144 of the State Acquisition and Tenancy Act; though under said Act the records may be corrected, modified, sub-divided or created u/ss. 116, 117, 118, 142, 143A 143B.
By this enactment, the Government has imposed an obligation upon the registering officer as to that no deed of transfer can be registered without mentioning the latest record of rights in the deed and unless the seller is a recorded tenant in the latest khatian. Here seller intends to mean transferor of any kind of transfer deed, not only in case of sale.
As per sub-section (b) of this section if the intending transferor himself is a recorded tenant in the latest khatian which has been finally published u/s. 144 of the SAT Act or he acquired his ownership from the said latest khatian holder, no complicacy arises, he can transfer directly.
But sub-section (a) of this sec. 52A stipulates an additional condition that if the intending transferor is a transferee from another his name must be recorded in the latest khatian. In my analysis, this sub-section (a) of sec. 52A is not too clear. We know that a final Khatian u/s. 144 is not always published; it depends only upon governments’ decision and it takes a huge time. Therefore, how a transferee shall be latest Khatian holder at his will. In such circumstances, when the intending transferor is a transferee he has to create a new khatian in his name for the purpose of transfer; which is in no way a latest khatian u/s. 144, but a mutation khatian u/s. 117 of the SAT Act.
It should be mentioned that after enactment of this provision, the deeds showing ownership from C.S. record have been totally stopped and thereby huge quantity of disputes and cases have been reduced. This is an enormous impact of the legislation.
On the other hand, by this provision, an unnecessary harassment has been created to the public by the Sub-Registers. We may place two examples of such harassment here that – When a person is a recorded owner in the latest khatian of big quantity of lands along with many other co-sharers, the sub-register does not register the deed to transfer his portion’s lands unless he mutates his portion in a new (khariji) khatian. In the same way, when a person is a successor by inheritance of lands of a latest khatian and that khatian has several types of co-sharers, the sub-register does not register the deed without opening a mutation khatian in his name for his share. In both of these cases, as per present position of law, any person may transfer lands of his share only by mentioning his share in the khatian. In both these cases, the registering officers impose an unnecessary and unexpected harassment and complications to the public; though it is not required by the law.
Besides, another analysis, “which is the main contention of this article”, is that the governmental intent of all the laws in our country from the British period is not to subdivide the khatians into pieces; rather to keep those intact in limited amounts. From this view, right of pre-emption has been created. But, under sub-section (a) of sec. 52A when a person purchases some portion of land from a khatian and then he wants to sell the same to another he must have to mutate his name for that portion of lands and only then he can sell, otherwise his deed shall not be registered. Under this provision, besides, even a person who is a co-sharer in the khatian and purchases another co-sharer’s portion and thereafter he wants to sell that purchased portion to another he also has to open a mutation khatian respecting that portion; which is big an irreasonability.
Therefore, for this requirement huge numbers of mutation cases have been started and thereby lots of touts, brokers and frauds have been created in the land offices; huge amount of sufferings have been created to the public and above all the khatians of the tenants are being split up into pieces to pieces. For the same reason, lots of fake and false Khatians are being made by the frauds and touts only for the purpose of registering transfer deeds, which also creates various criminal and civil cases. Moreover, by this way right of pre-emption is being curtailed unnecessarily and the uniqueness of holding is being lost.
In such circumstances, my suggestion, as the main legislative intent of creation of this provision is to protect the rights of the latest Khatian holders and to prevent creation of various types of disorders in the society, not to create innumberable mutation khatians, is that sub-sections (a) and (b) of sec. 52A may be amended; and the proposed amended provision may as follows: Sec. 52A: Upon presentation of an instrument of sale of any immovable property, the Registering Officer shall not register the instrument unless the following particulars are included in and attached with the instrument namely –
(a) the latest Khatian of the property prepared under the State Acquisition and Tenancy Act, 1950, in the name of the seller; or his predecessor, if he is owner of the property by inheritance or transfer from the recorded owner in the latest Khatian;
If the provision of law is such, then all persons who acquired title or interest from the latest record of rights either by inheritance or by transfer of any kind may transfer the lands mentioning the latest khatian and then by stating the facts how he acquired title thereto from the said latest khatian holder. I think that if this provision can be made, then the mass people of the state shall get relieve from an enormous distress and suffering and thereby, the touts, batpars, false paper makers and the local brokers will be driven from the Land Offices, i.e. Tahshil Offices, Offices of the Assistant Commissioner (Lands) and the Sub-Registry Offices; and above all, the Khatians of the villagers will be kept in intact and unique.
Hopefully, for the sake of public welfare, the Legislature will take a positive initiative in this respect. Even when the provision of sub-section (a) of sec. 52A, as I may construe, is that his name must be present in the latest khatian and when the very provision of the statute is not clear as to that the intending transferor getting ownership from latest khatian holder also must have to open a mutation khatian to transfer again though he is purchaser from a latest khatian, then, in my opinion, the statute should be interpreted in favour of public welfare as to that when a person gets any property by transfer from any latest Khatian holder then he needs not to open mutation khatian in his name; rather he may transfer the purchased portion mentioning the latest Khatian and how he got the ownership from the said latest Khatian.