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Friday, July 25, 2014

Khasara entries do not convey title = Suit for declaration of title and injunction - trial court dismissed the suit as it belongs to Municipality /defendant - High court reversed the trial court order basing on revenue entries by saying that " when the respondents- defendants did not produce property register to show that this property was ever recorded as property of the Municipal Corporation. At one stage it was recorded as Nazul land belonging to the State when the area had not come within the municipal limits. When the area came within the municipal limits it was mentioned to be Behatnam (under management) of the Municipal Corporation. But the possession and title of the plaintiffs has been recorded throughout even thereafter and to have established Abadi over this land, and therefore, the defendants-respondents could not object to the title and possession of the plaintiffs and the suit for declaration of title and injunction ought to have been decreed.” - Apex court set aside the judgment of High court and held that The High Court committed a grave and manifest error of law in reversing the well reasoned judgment and decree passed by the Trial Court by simply placing reliance upon Khasaras entries even without properly appreciating the settled law that Khasara entries do not convey title of the suit property as the same is only relevant for the purposes of paying land revenue and it has nothing to do with ownership.= MUNICIPAL CORPORATION, GWALIOR … APPELLANT VERSUS PURAN SINGH ALIAS PURAN CHAND & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41724

Khasara entries do  not  convey  title  = Suit for declaration of title and injunction - trial court dismissed the suit as it belongs to Municipality /defendant - High court reversed the trial court order basing on revenue entries by saying that " when  the respondents- defendants did not produce property register to show that this property  was ever recorded as property of the Municipal Corporation. At one stage it  was recorded as Nazul land belonging to the State when the  area  had  not  come within the municipal limits. When the area came within the municipal  limits it was  mentioned  to  be  Behatnam  (under  management)  of  the  Municipal Corporation. But the possession  and  title  of  the  plaintiffs  has  been recorded throughout even thereafter and to have established Abadi over  this land, and therefore, the defendants-respondents  could  not  object  to  the title and possession of the plaintiffs  and  the  suit  for  declaration  of title and injunction ought to have been decreed.” - Apex court set aside the judgment of High court and held that The High Court committed  a  grave  and  manifest  error  of  law  in reversing the well reasoned judgment and decree passed by  the  Trial  Court by simply placing reliance  upon  Khasaras  entries  even  without  properly appreciating the settled law that Khasara entries do  not  convey  title  of the suit property as the same is only relevant for the  purposes  of  paying land revenue and it has nothing to do with ownership.=
The  Original
Civil Suit No.44-A/1985  was  filed  by  plaintiff-respondents  against  the
defendant- the Municipal Corporation, Gwalior seeking declaration that  land
bearing Original Survey No.486/19 (old)  (New  Survey  No.619)  measuring  1
Bigha  is owned and possessed  by  them.  They  also  sought  for  permanent
injunction against the defendant on the ground  that  Municipal  authorities
tried to interfere   with  their  possession   by  dismantling  the  fencing
standing on their land.
3.     The case of the plaintiffs was that their ancestors were  the  owners
of the suit  land.  One  Ram  Nath  was  the  original  tenure-holder  (Mool
Krishak) and thereafter they became joint Bhumiswami.  They claimed   to  be
in possession on the ground that they constructed fencing, Hauda (pond)  and
Latrine (toilet) on the suit land.
4.    By way of an amendment of paragraph 2 of  the  plaint  the  plaintiffs
had shown their pedigree.
5.    Defendant – Municipal Corporation filed a  written  statement,  denied
the allegations and asserted that the suit land is an  open  piece  of  land
belonging to the Corporation and is in its possession. It  is  reserved  for
developing park and is used as a parking place and  a  sign  Board  to  this
effect is placed at the spot and the fencing by wire too has  been  done  by
Municipal Corporation.  It  was  alleged  that  the  plaintiffs  manipulated
Khasara entries by committing  fraud to include their names.=
The Trial court dismissed the suit holding that
In absence of notice under Section 401 of the M.P.  Municipality  Act,  1956
the suit is not maintainable. 
The plaintiffs  are  not  the  owners  of  the
disputed land and the disputed land is the  property  within  the  continued
ownership and possession and management of the Municipality. =

the High Court by impugned judgment allowed the  appeal
and set aside the judgment passed by the  Trial  Court  with  the  following
observation:
“38.  That  is the position in this case  as  well,  when  the  respondents-
defendants did not produce property register to show that this property  was
ever recorded as property of the Municipal Corporation. At one stage it  was
recorded as Nazul land belonging to the State when the  area  had  not  come
within the municipal limits. When the area came within the municipal  limits
it was  mentioned  to  be  Behatnam  (under  management)  of  the  Municipal
Corporation. But the  possession  and  title  of  the  plaintiffs  has  been
recorded throughout even thereafter and to have established Abadi over  this
land, and therefore, the defendants-respondents  could  not  object  to  the
title and possession of the plaintiffs  and  the  suit  for  declaration  of
title and injunction ought to have been decreed.”=

Mutation entries do not confer title.  In Smt.  Sawarni  v.  Smt.Inder
Kaur & others, 1996 (6) SCC 223, this Court held :
“7…….Mutation of a property  in  the  revenue  record  does  not  create  or
extinguish title nor has it any presumptive value on title. It only  enables
the person in whose favour mutation is ordered to pay the  land  revenue  in
question. The learned Additional District  Judge  was  wholly  in  error  in
coming to a conclusion that mutation in favour of Inder Kaur  conveys  title
in  her  favour.  This  erroneous  conclusion  has   vitiated   the   entire
judgment…….”

Merely on the basis of   Khasara  of  the  year  Samvat
1992 Ex.P/10, Khasara of the year Samvat 1996 Ex.P/11, Khasara of  the  year
Samvat 2003 Ex.P/2 declaration has been given in favour of  the  plaintiffs.
The High Court also noticed the Khasara of  the  year  Samvat  2004  Ex.P/3,
Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then  Khasara  of  the  years
Samvat 2010 to 2014 Ex.P/6, Khasara of the years Samvat 2013 to 2017  Ex.P/7
and Khasara of the years Samvat 2035 to 2038 Ex.P/8.
28.   In the Khasara of the years Samvat 2035 to 2038 Ex.P/8 the  nature  of
the land was mentioned as Nazul Abadi. In such exhibit the Municipality  has
been mentioned in column No.3. On  the  basis  of  aforesaid  Khasaras,  the
learned Single Judge decided the title in favour of the  appellant-Municipal
Corporation.=

 The High Court committed  a  grave  and  manifest  error  of  law  in
reversing the well reasoned judgment and decree passed by  the  Trial  Court
by simply placing reliance  upon  Khasaras  entries  even  without  properly
appreciating the settled law that Khasara entries do  not  convey  title  of
the suit property as the same is only relevant for the  purposes  of  paying
land revenue and it has nothing to do with ownership.
31.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
decree passed by the learned Single Judge in  Civil  First  Appeal  No.1  of
1995 and confirm the judgment and decree passed by  the  Trial  Court.   The
appeal is allowed. No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41724

                                                             REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO.  8605  OF 2013

MUNICIPAL CORPORATION, GWALIOR             … APPELLANT

                                   VERSUS

PURAN SINGH ALIAS PURAN CHAND
& ORS.                                          … RESPONDENTS

                               J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.


      This appeal is directed against the judgment  and  decree  dated  15th
April, 1998 passed by the High Court of Madhya Pradesh, Jabalpur,  Bench  at
Gwalior in Civil First Appeal No.1 of 1995. By  the  impugned  judgment  and
decree  the  High  Court  allowed  the  appeal,  preferred  by   plaintiffs-
respondents, set aside the judgment and decree passed  by  the  Trial  Court
and decreed the suit of plaintiffs-respondents.
2.    The factual matrix of the case is as follows:
       The  respondents  were  plaintiffs  and  the   appellant-   Municipal
Corporation, Gwalior was a defendant in  the  original  suit.  The  Original
Civil Suit No.44-A/1985  was  filed  by  plaintiff-respondents  against  the
defendant- the Municipal Corporation, Gwalior seeking declaration that  land
bearing Original Survey No.486/19 (old)  (New  Survey  No.619)  measuring  1
Bigha  is owned and possessed  by  them.  They  also  sought  for  permanent
injunction against the defendant on the ground  that  Municipal  authorities
tried to interfere   with  their  possession   by  dismantling  the  fencing
standing on their land.
3.     The case of the plaintiffs was that their ancestors were  the  owners
of the suit  land.  One  Ram  Nath  was  the  original  tenure-holder  (Mool
Krishak) and thereafter they became joint Bhumiswami.  They claimed   to  be
in possession on the ground that they constructed fencing, Hauda (pond)  and
Latrine (toilet) on the suit land.
4.    By way of an amendment of paragraph 2 of  the  plaint  the  plaintiffs
had shown their pedigree.
5.    Defendant – Municipal Corporation filed a  written  statement,  denied
the allegations and asserted that the suit land is an  open  piece  of  land
belonging to the Corporation and is in its possession. It  is  reserved  for
developing park and is used as a parking place and  a  sign  Board  to  this
effect is placed at the spot and the fencing by wire too has  been  done  by
Municipal Corporation.  It  was  alleged  that  the  plaintiffs  manipulated
Khasara entries by committing  fraud to include their names.
6.    The Trial Court on the basis of the pleadings of  the  parties  framed
the following issues :-
“1.   Whether the plaintiffs are Bhumiswamis of the disputed land?

2.    Whether the Court fee paid by the plaintiffs is insufficient?

3.    Whether the defendants can get Rs.3000/- as compensatory cost?

4.    Whether the disputed land belongs to the defendant  No.2  being  Nazul
land?

5.    Whether the defendant can get Rs. 5,000/- as compensatory cost?

6.    (a)   Whether the disputed  land  belongs to the  Nazul department?

      (b)   If so, whether the land being  open  belongs  to  the  Municipal
Corporation and the same    is not owned by the plaintiffs?

      7.    Reliefs and costs.”

7.    On hearing the counsel for the parties and on considering  the  entire
evidence, by judgment and decree  dated  29th  September,  1994,  the  Trial
Court dismissed the suit and held  as follows:-
“Issues 1,4 6(a) and 6(b):
In absence of notice under Section 401 of the M.P.  Municipality  Act,  1956
the suit is not maintainable. The plaintiffs  are  not  the  owners  of  the
disputed land and the disputed land is the  property  within  the  continued
ownership and possession and management of the Municipality.
Issue No.2:

The Court fee paid is sufficient.

Issue No.3 and 5:

Even though the suit of the plaintiffs failed but  the  defendants  are  not
entitled to get the special damages.

Issue No.7:

On the basis of above findings the suit of the plaintiffs for all  the  said
reliefs is liable to be dismissed with costs.”

8.     Against  the  Trial  Court's  decision,  the   plaintiffs-respondents
preferred a Civil First Appeal  No.1  of  1995  in  the  High  Court.  After
hearing the parties, the High Court by impugned judgment allowed the  appeal
and set aside the judgment passed by the  Trial  Court  with  the  following
observation:
“38.  That  is the position in this case  as  well,  when  the  respondents-
defendants did not produce property register to show that this property  was
ever recorded as property of the Municipal Corporation. At one stage it  was
recorded as Nazul land belonging to the State when the  area  had  not  come
within the municipal limits. When the area came within the municipal  limits
it was  mentioned  to  be  Behatnam  (under  management)  of  the  Municipal
Corporation. But the  possession  and  title  of  the  plaintiffs  has  been
recorded throughout even thereafter and to have established Abadi over  this
land, and therefore, the defendants-respondents  could  not  object  to  the
title and possession of the plaintiffs  and  the  suit  for  declaration  of
title and injunction ought to have been decreed.”
9.    Aggrieved appellant preferred a Letters Patent Appeal under Clause  10
of the Letters Patent Appeal Rules before the Division Bench of High  Court.
 The LPA No. 150 of 1998 was admitted and the order of stay  was  passed  by
the High Court.   Subsequently,  in  the  light  of   a  Constitution  Bench
decision in Jamshed N. Guzdar vs. State of Maharashtra & Ors., (2005) 2  SCC
591,  the Letters Patent Appeal was dismissed on 17th August,  2005  as  not
maintainable.
10.    Learned  counsel  for  the  defendant-appellant  made  the  following
submissions:
(a)   The High Court  committed  a  grave  and  manifest  error  of  law  in
reversing the well reasoned judgment and decree passed by the Trial Court.

(b)   The High Court has failed to  consider  that  as  there  is  no  prior
service of notice before institution of the suit either under Section 80  of
C.P.C. or under Section 401 of the M.P.  Municipal  Corporation  Act,  1956,
therefore,  suit was not maintainable and as such it was  rightly  dismissed
by the Trial Court.

(c)   The High Court has  gravely  erred  in  decreeing  the  suit   without
properly considering the oral evidence led by  the  plaintiffs  and  on  the
contrary the  plaintiffs  witnesses  admitted  in  their  evidence  that  in
Khasaras the Municipality is recorded as owner and  even  in  some  Khasaras
the plaintiffs are recorded as tresspassers.

11.   On the other hand, according to learned counsel  for  the  plaintiffs-
respondents,  the  First  Appellate  Court  rightly  decreed  the  suit   as
predecessors-in-interest of plaintiffs were recorded to be in possession  of
the land.
12. After giving our careful consideration to the  facts  and  circumstances
of the case, evidence on record and  the  submission  made  by  the  learned
counsel for the parties, we find ourselves in complete  agreement  with  the
submission made on behalf of the defendant-appellant  and the  judgment  and
decree passed by the Trial Court.
13.   The plaintiffs-respondents claimed  ownership,  title  and  possession
over the land.  They are supposed to plead the fact and prove their case  by
placing evidence.   The  plaintiffs  have  shown  their  possession  in  the
capacity of “Pukhta Maurusi Kashtakar” and  that  the  land  was  meant  for
agriculture purposes.
14.   Further the case of the plaintiffs was that  there  was  no  partition
between them and the land continued to be  joint  family  property  (“Shamil
Shareek”). The plaintiffs have given the  detail  of  their  predecessor-in-
title as under:

                   “Table of Puran Singh, Plaintiff No.1:
                          Chhutti Ram, widow Manko
                                      ?
                                  Mishrilal
                                      ?
                          Puran Singh (adopted son)


                       Table of Shyam Babu, Plaintiff No.2:

                         Reoti Prasad, widow Rajwati
                                      ?
                       Bhagwati alias Bhagwati Prasad
                                      ?
                                 Shyam Babu”


                            Table of Har Narain;

                                Mangal Singh
                                      ?
                                  Gopi Ram
                                      ?
                                  Harnarain

1


2 15. Referring to the tables  of  the  predecessor-of-interest,  the  Trial
Court doubted the joint-ownership of the family and rejected  the  claim  of
the plaintiffs in view of the following facts:

16.   Plaintiff no. 1, Puran Chand  belongs  to  Shiva  Hare  Caste  whereas
plaintiff No. 2, Sham Babu, is a ‘Kayastha’ (Shrivastava). Harinarain  is  a
Thakur.  The plaintiff has not made clear how  they  claim  joint  ownership
and joint possession of the land if they belong to three  different  castes.
Neither any  pleadings  were  made  nor  any  evidence  was  placed  by  the
plaintiff to show how the land in dispute came  under  their  ownership  and
when they have taken possession of the land.
17.   The High Court gravely erred in law as well as on facts in  connecting
Ram Nath with the  plaintiffs-respondents  even  though  they  have  utterly
failed to prove any connection  with  him  and  the  pleadings  are  lacking
regarding their particulars and even their names do not appear in Ext.P.11.
18.   It is settled  that  for  joint  possession  and  ownership  over  any
property, firstly the plaintiffs are required to  plead  the  same  and  the
said fact should be reflected in the plaint itself.  There is a  concept  of
joint family amongst the Hindus but that  is  required  to  be  pleaded  and
proved. As the ancestors of the plaintiffs do not belong to one family,  but
three different family having three different castes, the  joint  possession
of the plaintiff cannot be accepted.   The High Court failed to  notice  the
aforesaid fact while allowing the appeal of the plaintiffs.
19.   Smt. Chandra Kala widow of Shyam Babu (PW-1) and  Puran  Singh  (PW-2)
stated that they are joint owners and  are  in  joint  possession  based  on
revenue records. The names of Mishrilal, Gopilal and Shyam Babu were  shown.
 However, the name of  ancestors  of  Plaintiff  No.2,  Shyam  Babu  is  not
recorded, but the name of Shyam Babu himself is  recorded  therein.  In  the
original plaint,  it was not pleaded  as  to  how  Shyam  Babu   along  with
Mishri Lal and Gopiram were in  joint possession over the land  in  dispute.
In this background, we hold that the  Trial  Court  rightly  held  that  the
plaintiffs failed to give necessary details of their  origin  and  ownership
rights.
20.   The High Court has failed to appreciate that there was no document  of
title/ownership on record placed by  the  plaintiffs-respondents  and  there
are no pleadings in this regard as such no finding  of  title  or  ownership
can be given in favour of plaintiff-respondents.
21.   The evidence of  Chander  Kala  PW-1  and  other  evidence  on  record
including map were enclosed in the plaint.  Nothing  was  shown  to  suggest
that Shyam Babu was in actual possession of the land in  the  plaint  or  in
the map and no pleading as the  existence  of  a  pataur,  toilet  and  pond
(Haudi) in the suit land was made.  Therefore, the Trial Court  was  correct
in holding that the plaintiff- Shyam Babu was not in possession of land.
22.    The Khasara entry of Samvat 1966 is exhibit P-11.  The  name  of  the
owner of Khasara No.486 (Vasarash Sadar), Rakam Tehsil Khewat 1 is  recorded
whereas Kashtakar Dakhilkar in column No.7 (Basrah Sadar)  Ram  Chander  s/o
Kashi Ram resident of Deh Dakhilkar is mentioned.  Further  in  column  No.8
the following entry is given as Skikmi Kashtakar and Muddat Kashta:-
“Manko widow Khushi Ram and Arjun-
Rajawati widow of Reoti Prasad Kayastha,
Mangal Singh and Ram Prasad.”
      In the further columns the vegetables, crop and makka, channa etc.  is
mentioned.
23.   In second old Khasara entry Exhibit P-10 for Samvat 1992 with  respect
to Khasara  No.486/19  in  the  column  No.5  for  the  name  of  the  owner
‘Municipality No.1’ is mentioned and further Warelal Gopi Ram Mauru-  Mangal
Singh- Bhagwati s/o Reoti Prasad Ka.Sa.Deh.Mu.Maurusi is  mentioned  and  in
column No.20 ‘Kisam Abadi’ is mentioned. In column  No.9  Chita  Lagani  has
been shown.
24.   According to plaintiffs, the old Account No.486/19 of the land  is  in
dispute, and therefore, in this Khasara entry  this  land  is  reflected  as
Bila Lagani Abadi under the ownership of Municipality.
25.   The Trial Court on appreciation of the  entries  and  its  genuineness
which is to be presumed under the provisions of Section 117  of  the  Madhya
Pradesh Land Revenue Code, came to a definite conclusion  that  the  entries
were made with different ink and hand-writing  and  the  compliance  of  the
order by any competent officer is not mentioned  in  the  Khasara.  In  this
regard  when cross-examined,  Gita  Ram  Verma   (PW-3),  Abhilekha  Pal  of
Rajasava Abhilekhagar Gwalior made certain statements at paragraph 5,6,  and
7 of cross-examination which raised doubt about  the entries in some of  the
khasara  placed by the plaintiff.
26.    Gita Ram Verma-(PW-3) in her statement stated the  record  of  samvat
1977 to samvat 1992 in the ‘Abhilekha Gar’ (record room)  of  Director  Land
Record. The plaintiffs could not correspond how they could get Exhibit  P-10
and P-11 which were available in the record room and  could  not  prove  the
correctness of those exhibits. Errors and omissions have been also found  in
the Khasara entries produced  by  the  plaintiffs.  Hence  the  Trial  Court
doubted the correctness of those khasaras..
27.   The aforesaid fact has not been  dealt  with  by  the  High  Court  in
proper perspective.  Merely on the basis of   Khasara  of  the  year  Samvat
1992 Ex.P/10, Khasara of the year Samvat 1996 Ex.P/11, Khasara of  the  year
Samvat 2003 Ex.P/2 declaration has been given in favour of  the  plaintiffs.
The High Court also noticed the Khasara of  the  year  Samvat  2004  Ex.P/3,
Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then  Khasara  of  the  years
Samvat 2010 to 2014 Ex.P/6, Khasara of the years Samvat 2013 to 2017  Ex.P/7
and Khasara of the years Samvat 2035 to 2038 Ex.P/8.
28.   In the Khasara of the years Samvat 2035 to 2038 Ex.P/8 the  nature  of
the land was mentioned as Nazul Abadi. In such exhibit the Municipality  has
been mentioned in column No.3. On  the  basis  of  aforesaid  Khasaras,  the
learned Single Judge decided the title in favour of the  appellant-Municipal
Corporation.
29.   Mutation entries do not confer title.  In Smt.  Sawarni  v.  Smt.Inder
Kaur & others, 1996 (6) SCC 223, this Court held :
“7…….Mutation of a property  in  the  revenue  record  does  not  create  or
extinguish title nor has it any presumptive value on title. It only  enables
the person in whose favour mutation is ordered to pay the  land  revenue  in
question. The learned Additional District  Judge  was  wholly  in  error  in
coming to a conclusion that mutation in favour of Inder Kaur  conveys  title
in  her  favour.  This  erroneous  conclusion  has   vitiated   the   entire
judgment…….”

30.    The High Court committed  a  grave  and  manifest  error  of  law  in
reversing the well reasoned judgment and decree passed by  the  Trial  Court
by simply placing reliance  upon  Khasaras  entries  even  without  properly
appreciating the settled law that Khasara entries do  not  convey  title  of
the suit property as the same is only relevant for the  purposes  of  paying
land revenue and it has nothing to do with ownership.
31.   For the reasons aforesaid, we set  aside  the  impugned  judgment  and
decree passed by the learned Single Judge in  Civil  First  Appeal  No.1  of
1995 and confirm the judgment and decree passed by  the  Trial  Court.   The
appeal is allowed. No costs.

                                                        …………………………………………….J.
                                 (SUDHANSU JYOTI MUKHOPADHAYA)

                                                        …………………………………………….J.
                                          (A.K. SIKRI)
NEW DELHI,
JULY 2,2014.

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