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Sunday, October 11, 2015

Amendment of plaint for Declaration - Limitation & Entries in revenue records = So far as the plea of limitation is concerned there can be no manner of doubt that the amendment of the plaint(s) to incorporate the relief of declaration of title has necessarily to relate back to the date of filing of the suit. Once the said amendments were allowed and were not challenged by the defendants, the issue with regard to limitation has to be decided in favour of the plaintiffs.; We have considered the submissions advanced on behalf of the parties. While there can be no manner of doubt that mutation entries do not conclusively establish title, we remain unimpressed by the arguments and contentions advanced on behalf of the appellants that the title of the plaintiffs in the instant case was found in their favour merely on the basis of the mutation entries in question. The suit scheduled property as described in the plaints filed in both the suits show that the suit land measuring 2 hectares 70 ares is covered by survey No.43, 49, 49A/1 and 54 which corresponds to new survey nos. 262, 214, 214A/1, 214B. The materials on record indicate that the title of the plaintiffs to land covered by survey No.43 stands established by Exh.63 whereas land covered by survey No.49 and 54 stands proved by Exh.154 and 158. It is the aforesaid survey numbers which are mentioned against the mutation entries of 1916 as well as the mutation entries of the year 1927. Coupled with the above, if the entry with regard to the land being held on behalf of the villagers as made in the mutation records are to be ignored, on account of the findings recorded in the order of the revenue authority dated 6.1.1993, which findings have been finally approved in the appeal proceedings arising out of the suits as being findings of fact recorded on the basis of the evidence on record, there can be no difficulty in holding that the title of the plaintiffs to the suit land covered by the survey Nos. indicated above stands proved and established. The entries in khata No.47 would also have to be understood with reference to the conclusions as above. Insofar as the land acquisition proceedings are concerned there is no conclusive material to hold that the payment of compensation was received by Hirachand Gujjar on behalf of the villagers so as to belie the case of the plaintiffs and/or establish the title of the defendants. The plea of the defendants that the voluminous documents brought on record do not establish the title of the plaintiffs has already been dealt with in the context of the specific exhibits which are relatable to the survey Nos. relevant to the suit land. So far as the plea of limitation is concerned there can be no manner of doubt that the amendment of the plaint(s) to incorporate the relief of declaration of title has necessarily to relate back to the date of filing of the suit. Once the said amendments were allowed and were not challenged by the defendants, the issue with regard to limitation has to be decided in favour of the plaintiffs. For the aforesaid reasons we do not find any merit in the case of the appellants as laid before us on the grounds and contentions as noticed. The appeals therefore will have to fail and are accordingly dismissed. However in the facts and circumstances of the case we make no order as to costs.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                     CIVIL APPEAL  NOs. 821-825 OF 2009


Vasant Balu Patil & Ors.                             ... Appellant (s)

                                   Versus
Mohan Hirachand Shah & Ors.                        ...    Respondent(s)


                               J U D G M E N T

RANJAN GOGOI, J.

The plaintiffs’ suits (Nos. 124 of 1982 and 125 of 1982) for declaration  of
title and injunction were dismissed by the learned trial  court.   In  first
appeal, the learned District Judge reversed  the  decree  of  dismissal  and
decided the suits in favour of the plaintiffs.  The  said  decree  has  been
affirmed in second appeal by the Bombay High Court.  Aggrieved  the  present
appeals have been filed by the defendants in the two suits.
Insofar as recital of the relevant facts is concerned  it  will  suffice  to
notice that the plaintiffs’ suits were initially for injunction against  one
Essar Construction Company  (Suit  No.125  of  1982)  and  one  Ardeshir  B.
Kurshetji & Sons Pvt. Ltd. (Suit No.124 of 1982) who  were  raising  certain
constructions on the suit  land  of  which  the  plaintiffs  claimed  to  be
owners.  Initially the present appellants/defendants  were  not  parties  to
the said suits.  However, subsequently they  were  impleaded  as  defendants
as, according to the plaintiffs, they  were  informed  by  the  construction
companies that they were authorised to raise the constructions on  the  suit
land by the villagers of Mandva Village who claimed  to  be  owners  of  the
land. The appellants/defendants who were so impleaded and proceeded  against
in a representative capacity filed their  written  statement  in  the  suits
denying the title of the plaintiffs. The plaintiffs  asserted  their  title,
specifically by seeking the additional relief of declaration of title  which
was allowed to be brought on record by permitting an amendment of the  suits
insofar as the relief(s) claimed is concerned.

3.    The basis of the claim of the plaintiffs date to the  year  1916  when
the suit land measuring 14.5 acres was recorded in the name  of  one  Amarsi
Gujjar, the grandfather of the present  respondent-plaintiffs.   It  is  the
case of the plaintiffs that upon demise of Amarsi Gujjar in the  year  1926,
the property devolved by survivorship on Hirachand  Gujjar,  the  father  of
the plaintiffs and on his demise in the year 1971  the  same  devolved  upon
the plaintiffs.

4.    The appellant-defendants, on  being  impleaded  in  the  suits,  filed
written statements contending, inter alia, that the mutation  entry  of  the
year 1916 showed Amarsi Gujjar as the holder of the land on  behalf  of  the
villagers. He was described as a Vahiwatadar of the  villagers.   Similarly,
the mutation entry of the year 1927 following the  death  of  Amarsi  Gujjar
also recorded Hirachand Gujjar as a Vahiwatadar and the land  was  shown  as
being held on behalf of the villagers.  The above is the core of  the  claim
of the respective parties on the basis of which certain  supplemental  pleas
have also been raised which will be noticed as we proceed to  delve  further
into the matter.

5.    The learned trial court, as already noticed, dismissed  the  suits  of
the plaintiffs.  This was primarily on the basis that the  mutation  entries
of the years 1916 and 1927, which formed the foundation  of  the  claims  of
the parties,  indicated  that  the  land  was  held  by  Amarsi  Gujjar  and
thereafter by Hirachand Gujjar on behalf of the villagers.   What  would  be
particularly relevant to  be  noticed,  at  this  stage,  out  of  the  huge
multitude of facts that confronts the Court is that  there  was  a  parallel
revenue proceeding wherein the issue was one pertaining to  the  correctness
of the aforesaid two mutation entries.  The said proceedings  culminated  in
an order of the State Government dated 06.01.1993 passed in exercise of  its
revisional  powers  holding  that  the  mutation   entries   of   1916   and
consequently the entries of the year 1927 were extremely  doubtful  in  view
of certain interpolations or overwritings  in  the  said  mutation  entries.
Accordingly, the mutation entries were declared  to  be  without  any  legal
effect. The said order was challenged by the appellant in  a  writ  petition
which was heard and decided along with the second appeal  in  question.  The
order passed by the High Court in the civil  writ  petition  has  also  been
challenged before us in the present appeals.
6.    In deciding  the  civil  proceedings  arising  out  of  the  suits  in
question, the first appellate court and the High Court  disagreed  with  the
learned trial court and overturned the findings of the learned  trial  court
on all the issues.  It is the very  same  pleas  raised  before  the  forums
below on the issues arising for determination, that  are  being  resurrected
in the present  appeals,  to  contend  that  the  conclusion  of  the  first
appellate court and the  High  Court  are  wholly  untenable  requiring  the
interference of this  Court  in  the  exercise  of  its  jurisdiction  under
Article 136 of the Constitution.

7.    It is in the above conspectus of facts that  a  brief  resume  of  the
contentions advanced on behalf of the parties would be  necessary  not  only
to recapitulate the issues arising for determination in the present  appeals
but also to take note of what was urged before  the  forums  below  and  the
reasons for the conclusions reached and the  views  expressed  by  the  said
forums which have culminated in the present appeal.

8.    At the outset, Shri Vinay Navare, learned counsel for  the  appellants
has contended that against the findings of the revisional authority  in  the
revenue proceedings (order dated 6.1.1993) a writ petition bearing No.  5893
of 1993 was filed before the High Court which was answered by the very  same
impugned order by holding that as the question of title has been  raised  in
the suit and found in favour of the plaintiffs it will not be  necessary  to
separately adjudicate  the  correctness  of  the  findings  reached  in  the
revenue proceedings. Shri Navare has urged that neither the first  appellate
court nor the High Court  had  dealt  with  the  legality  of  the  mutation
entries in question.  Consequently no specific finding in  this  regard  was
recorded.  In fact, the courts below concluded the issue in  favour  of  the
plaintiffs merely on the basis of the findings of the  revenue  authorities.
Once the mutation entries of 1916 and 1927 were so adjudged,  another  vital
document which established the title of  the  defendants  i.e.  Khata  No.47
which recorded the name of the villagers against the suit land  came  to  be
decided against the defendants, consequentially, in  a  similar  manner.  It
has been further urged on behalf of the appellants  that  the  materials  on
record had amply demonstrated  that  all  other  land  belonging  to  Amarsi
Gujjar in his personal capacity were transferred in the name  of  his  three
sons Hirachand, Tapidas and Vittaldas.  The mutation entries in  respect  of
such land do not include the suit land which fact would go to show that  the
suit land was not the personal property inherited by the legal heirs of  the
original owner, Amarsi Gujjar but was held by the said person on  behalf  of
the villagers.  It is additionally urged that some part  of  the  suit  land
was acquired by the Government  under  the  Land  Acquisition  Act  and  the
materials on record indicate that possession of such land  was  handed  over
by Hirachand Gujjar on behalf of the villagers  and  compensation  for  such
acquisition was received by Hirachand Gujjar alongwith two other  villagers,
namely, Nathram and Chaya Nakhawa.

9.    It  is  further  urged  that  the  plaintiffs’  suits  was  barred  by
limitation inasmuch as though the defendants had disputed the title  of  the
plaintiffs to the suit land in the  written  statement  filed  in  the  year
1985, the plaintiffs had by an amendment of the suits  prayed  for  addition
of the relief of declaration of title.  The said amendment  was  allowed  by
the learned trial  court  on  16.07.1995.  The  amended  relief  sought  and
granted,  therefore,  is  clearly  barred  under  the  provisions   of   the
Limitation Act, it is urged.
10.   Finally,  it  is  contended  that  though  voluminous  documents  were
introduced in evidence on behalf of the plaintiffs  to  prove  their  title,
none of the exhibited  documents  had  a  relevant  bearing  to  the  survey
numbers covering the suit lands except  Survey  No.43.   It  is,  therefore,
contended that the findings of the learned courts below regarding  title  of
the plaintiffs is plainly untenable in law.

11.   The  aforesaid  arguments  on  behalf  of  the  appellants  have  been
countered  by  Shri  Jay  Savla  learned  counsel  for  the  respondents  by
contending that the legitimacy of the  mutation  entries  on  the  basis  of
which, primarily, the suit was dismissed by  the  learned  trial  court  has
been conclusively decided in the revenue proceedings holding the same to  be
highly suspicious  in  view  of  the  interpolations  and  the  over writings
therein. The said facts and findings recorded thereon were  noticed  in  the
course of the adjudication of the suits and were  accepted  by  the  learned
courts below. The same are essentially findings of  fact.  If  the  mutation
entry of 1916 which was the foundation  of  the  claim  of  the  parties  is
suspect, as has been held by the learned courts  below,  the  claim  of  the
plaintiffs  to  ownership  is  established  and  the   substratum   of   the
defendants’ claim, including the claim of title on the basis of khata  No.47
and payment of revenue in respect of the land covered by the said khata  No.
47 (allegedly the suit land) will necessarily fall  through.   It  is  urged
that  the  materials  on  record  and  the  documents  relied  upon  do  not
conclusively prove that compensation was received  by  Hirachand  Gujjar  on
behalf of the villagers.  In any case,  the  said  issue  would  also  stand
concluded by the findings recorded in  respect  of  the  legitimacy  of  the
original mutation entries.  So far as the plea of limitation  is  concerned,
it is urged that the order allowing the amendment of the suits to  bring  on
record the additional relief of declaration of title has  gone  unchallenged
and has attained finality in law.  Therefore,  the   issue  with  regard  to
limitation issue necessarily had to be decided in favour of  the  plaintiffs
inasmuch as the said amendment(s) would relate back to the  date  of  filing
of the suits. Reliance in this behalf has been placed on a judgment of  this
Court in Siddalingamma & Anr. vs. Mamtha Shenoy[1].
12.    We  have  considered  the  submissions  advanced  on  behalf  of  the
parties.  While there can be no manner of doubt  that  mutation  entries  do
not conclusively establish title, we remain  unimpressed  by  the  arguments
and contentions advanced on behalf of the appellants that the title  of  the
plaintiffs in the instant case was found  in  their  favour  merely  on  the
basis of the mutation entries in question. The suit  scheduled  property  as
described in the plaints filed in both the suits show  that  the  suit  land
measuring 2 hectares 70 ares is covered by survey No.43, 49,  49A/1  and  54
which corresponds to new survey nos. 262, 214, 214A/1, 214B.  The  materials
on record indicate that the title of  the  plaintiffs  to  land  covered  by
survey No.43 stands established by Exh.63 whereas  land  covered  by  survey
No.49 and 54 stands proved by Exh.154 and 158.  It is the  aforesaid  survey
numbers which are mentioned against the mutation entries of 1916 as well  as
the mutation entries of the year 1927. Coupled with the above, if the  entry
with regard to the land being held on behalf of the  villagers  as  made  in
the mutation records are to be ignored, on account of the findings  recorded
in the order of the revenue authority dated 6.1.1993,  which  findings  have
been finally approved in the appeal proceedings arising out of the suits  as
being findings of fact recorded on the basis  of  the  evidence  on  record,
there can be no difficulty in holding that the title of  the  plaintiffs  to
the suit land covered by the survey Nos. indicated above stands  proved  and
established.  The entries in khata No.47 would also have  to  be  understood
with  reference  to  the  conclusions  as  above.   Insofar  as   the   land
acquisition proceedings are concerned there is  no  conclusive  material  to
hold that the payment of compensation was received by  Hirachand  Gujjar  on
behalf of the villagers so as to belie the case  of  the  plaintiffs  and/or
establish the title of the defendants.  The plea of the defendants that  the
voluminous documents brought on record do not establish  the  title  of  the
plaintiffs has already been dealt  with  in  the  context  of  the  specific
exhibits which are relatable to the survey Nos. relevant to the  suit  land.
So far as the plea of limitation is concerned there  can  be  no  manner  of
doubt that the amendment of the  plaint(s)  to  incorporate  the  relief  of
declaration of title has necessarily to relate back to the  date  of  filing
of the suit.  Once the said amendments were allowed and were not  challenged
by the defendants, the issue with regard to limitation has to be decided  in
favour of the plaintiffs.
13.   For the aforesaid reasons we do not find any merit in the case of  the
appellants as laid before us on the grounds and contentions as noticed.  The
appeals therefore will have to fail and are accordingly  dismissed.  However
in the facts and circumstances of the case we make no  order  as  to  costs.



                                           ...……..……......................J.
                                                    (RANJAN GOGOI)


                                             ….……..…….....................J.
                                                   (N.V. RAMANA)
NEW DELHI
OCTOBER  9, 2015.
-----------------------
[1]    2001 (8) SCC 561.


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