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Saturday, October 10, 2015

Recording the claimant’s name in the other rights column merely on the basis of possession is nothing short of perversity and unless the officer concerned was satisfied that the said possession was lawful such an entry could not have been done irrespective of whether the original owners appeared and contested the plea and more so when the officer was performing a statutory duty. = Merely a holder or occupant does not meet the requirements of law for exercising such a right. Section 2(12) of the Code, as reproduced hereinabove, makes it clear that to be a “land holder” or “holder of land” means to be lawfully in possession of land, whether such possession is actual or not and as per Section 2(23) “occupant” means a holder in actual possession of unalienated land. It was, therefore, necessary for the appellant to prove that his possession or occupation over the suit land was lawful or he had come in possession by a legal conveyance/title or any other instrument like receipt etc. to which the Respondent No. 1 was a party or at its instance. It is also not the case of the appellant that he has perfected his title over the land in question by way of adverse possession.= It is thus clear that to exercise the right under section 148 read with Sections 149 and 150 of the Code for entering one’s name in the Record of Rights, the applicant has to be a holder, occupant, owner, mortgagee or tenant. Such a right is also available to a person acquiring interest in the property by succession, survivorship, inheritance, partition, purchase mortgage, gift, lease or otherwise. We fully approve the view taken by the Bombay High Court in the aforesaid decision. The appellant claimed that he along with others is in possession of the suit land for the last 15-20 years and, therefore, his claim was required to be entered in the “Other Rights” column. This contention has been rejected by the Sub-Divisional Officer as well as by the Deputy Collector (Appeals) but confirmed by the Additional Commissioner. Merely a holder or occupant does not meet the requirements of law for exercising such a right. Section 2(12) of the Code, as reproduced hereinabove, makes it clear that to be a “land holder” or “holder of land” means to be lawfully in possession of land, whether such possession is actual or not and as per Section 2(23) “occupant” means a holder in actual possession of unalienated land. It was, therefore, necessary for the appellant to prove that his possession or occupation over the suit land was lawful or he had come in possession by a legal conveyance/title or any other instrument like receipt etc. to which the Respondent No. 1 was a party or at its instance. It is also not the case of the appellant that he has perfected his title over the land in question by way of adverse possession. 19) Merely saying that the Respondent No. 1 or the original owner did not object at any time to the possession, does not make his possession lawful, even if it is accepted that he was in possession. The appellant has to prove his title of possession by pointing out that it was lawful and if such requirement could not be proved, mutation entry is required to be cancelled. Recording the name of the appellant along with six others in the other rights column merely on the basis of possession is nothing short of perversity and unless the officer concerned was satisfied that the said possession was lawful such an entry could not have been made irrespective of whether the original owners appeared and contested the plea and more so when the officer was performing a statutory duty. When the statute states that a duty has to be performed or an enquiry has to be conducted in a particular manner, it is well settled, it has to be done in that manner alone and it was necessary for the Tehsildar to ensure that the requirements of the Code were satisfied by the petitioners’ predecessor. 20) In our considered opinion, the name of the appellant along with six others could not have been recorded in the ‘Record of Rights’ which contains the names of the persons who claim title to the land. We further hold that since appellant and others never claimed that they had any title to the land, entering their names in the ‘Record of Rights’ was not at all justified and, therefore, the Mutation Entry No. 4601 could not have been made in the said record. Hence, the Mutation Entry No. 4601 dated 06.03.1987 has rightly been set aside. The appeal is dismissed with no order as to costs.


                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 8399 OF 2015
        (Arising out of Special Leave Petition (C) NO. 26698 OF 2010)



Narayan Laxman Patil                              .... Appellant(s)

            Versus

M/s Gala Construction Company
Private Limited & Ors.                                  .... Respondent(s)


                                      1


                                      2

                               J U D G M E N T

R.K. Agrawal, J.

1) Leave granted
2) This appeal is directed  against  the  final  judgment  and  order  dated
22.06.2010 passed by the Division Bench of the High Court of  Judicature  at
Bombay in Appeal No. 245 of 2007 in Writ Petition No. 2103 of  2003  whereby
the High Court allowed the appeal filed by the  respondents  herein  against
the judgment and order dated 03.08.2006 passed by the learned  single  Judge
of the High Court in Writ Petition No. 2103 of 2003.

3)    Brief facts:
(a)   The land in question, admeasuring 11 acres out  of  the  land  bearing
Survey No. 221 of Village Eksar, Taluka  Borivali,  Maharashtra,  originally
belonged to one Kamlakar Narayan Samant.  A portion of the said land was  in
the possession of Narayan Laxman Patil-the appellant herein who  along  with
six other persons used to cultivate paddy crop on the said land.
(b)   On 12.09.1986, the appellant herein moved an  application  before  the
Tehsildar, Borivali that since he  and  6  other  persons  were  cultivating
paddy and were in possession of the suit land  for  the  last  15-20  years,
their names be entered into the “other rights” column of  the  7/12  extract
in respect of 11 acres of land out of Survey No. 221 of Village Eksar.
(c)   Notice of the said application was issued to  the  landlord-  Kamlakar
Narayan Samant. On 06.03.1987, Mutation Entry No. 4601  was  made  recording
the name of the appellant herein along with  six  other  persons  in  “other
rights” column of the Record of Rights mentioning that  the  notice  of  the
said application was duly served upon the original owner  but  no  objection
received.
(d)   M/s Gala Construction Co. Pvt. Ltd.-Respondent No. 1 and the  original
owner-Kamlakar Narayan Samant entered  into  an  agreement  for  sale  dated
15.05.1978 with regard to the land situated at  Village  Eksar.   Respondent
No. 1 further filed a Short Cause Suit No. 1797  of  1981  before  the  High
Court of Judicature at Bombay for a  declaration  that  there  is  a  valid,
subsisting and binding contract between the parties.
(e)   By order dated 12.10.1989, learned single  Judge  of  the  High  Court
allowed the same in favour of Respondent No. 1  herein  and  on  19.10.1995,
Respondent No. 1 obtained a decree on the basis of  the  settlement  reached
between the parties.
(f)   After the mutation entry,  the  owner-Kamlakar  Narayan  Samant  wrote
letters dated 13.08.1987 and 13.10.1987 to the  Tehsildar,  Taluka  Borivali
that certain persons have claimed themselves to  be  in  possession  of  the
said property as tenants by way of right of either  agricultural  activities
or catching fish and their claim is  fraudulent  and  bogus.   It  was  also
mentioned in the said letters that he has not given  consent  to  anyone  to
give statement on his behalf and to receive notices of the proceedings.
(g) Against the entry in the register of ‘Record of Rights”, Respondent  No.
1 herein filed a Revision Application being DRN/RTS/3/2000 before  the  Sub-
Divisional Officer, Mumbai, Suburban District, Bandra (E).  By  order  dated
30.12.2000,  the  Sub-Divisional  Officer   allowed   the   revision   while
cancelling the mutation entry dated 06.03.1987.
(h)   Aggrieved by the order dated 30.12.2000, the appellant challenged  the
same by way of appeal being No. C/RTS/A-3/2001 before the  Deputy  Collector
(Appeals), Mumbai Suburban District which  got  dismissed  by  judgment  and
order dated 31.07.2001.
(i) Feeling aggrieved, the appellant herein  filed  a  Revision  Application
being   No.    Appeal/Desk/RTS/Revision/66/01    before    the    Additional
Commissioner, Konkan Division,  Mumbai.   The  Additional  Commissioner,  by
order dated 14.03.2003, allowed the revision application.
(j)   Respondent No. 1, aggrieved by allowing the revision  petition,  filed
a Writ Petition being No. 2103 of 2003 before  the  High  Court  of  Bombay.
Learned single Judge of the High Court, by order dated 03.08.2006  dismissed
the same.
(k)   Being aggrieved by the aforesaid order, the Respondent No. 1 filed  an
appeal being No. 245 of 2007 in Writ Petition 2103 of 2003 before  the  High
Court. The Division Bench of the High  Court,  by  order  dated  22.06.2010,
allowed the appeal filed by the Respondent No. 1 herein and  set  aside  the
mutation entry No. 4601 dated 06.03.1987 in the “other rights” column.

(l)  Against the said order, the appellant herein has preferred this  appeal
by way of special leave before this Court.
4)    Heard Ms. Abha R. Sharma, learned counsel for the  appellant  and  Mr.
Shekhar Naphade, learned senior counsel for the respondents.
5)    The only point  for  consideration  in  this  appeal  is  whether  the
Mutation Entry No. 4601 dated 06.03.1987 in the  “other  rights”  column  of
the ‘Record of Rights’ is valid or not.
Rival Submissions:
6)    Learned counsel for the appellant submitted that the appellant  is  in
possession of the land in question for the last  15-20  years  and  used  to
cultivate crops and fishing  on  the  same.   The  original  landlord/owner-
Kamlakar Narayan Samant was aware of the fact  that  the  appellant  was  in
possession of the said land but he never raised any objection whatsoever  on
such possession and use of  land.   Vide  Mutation  Entry  dated  06.03.1987
being No. 4601, the name of the  present  appellant  along  with  six  other
persons was entered in the “other rights” column of the ‘Record  of  Rights’
by the Tehsildar, Borivali following due process of law.



7)    Learned counsel for the appellant further submitted that notices  were
sent to Kamlakar Narayan Samant as well as his  constituted  attorney-Laxman
Anu Patil through Tehsil Office, Borivali, however, no reply  was  given  by
the owner though he received the same. She contended  that  the  constituted
attorney of original land owner remained present before the Talathi and  had
admitted the possession of the appellant on the said land in  his  statement
dated 22.01.1987.  After carrying out site inspection of the said  land  and
preparation of panchnama and recording the statements,  the  mutation  entry
had been recorded by adopting proper procedure.   It  is  further  contended
that the appellant is an agricultural tenant in respect of  the  suit  land,
hence, the names have been rightly brought on record by the mutation  entry.
 Since the name of the appellant along  with  six  other  persons  has  been
brought on record by following due process of law, they are in  settled  un-
interrupted possession of the above property for more than 40 years.
8)    Learned counsel further submitted that even though the original  owner
was aware of the fact that the name of the appellant along  with  others  is
being recorded in the other rights  column,  he  did  not  take  any  steps.
Further, when it was informed to  the  owner  that  he  had  the  remedy  of
appeal, the fact remains that he  had  not  availed  the  same  against  the
mutation entry rather he filed a revision.  Also, the  revision,  which  was
filed by the owner after a long time from the date of  the  mutation  entry,
cannot be regarded as being instituted within a reasonable period  of  time.
Finally, she submitted that  an  entry  in  the  record  of  rights  in  the
register of mutations shall be presumed to be true  until  the  contrary  is
proved or a new entry is lawfully substituted therefor.
9)    In reply, learned senior counsel for the  respondents  submitted  that
proper procedure  was  not  adopted  before  the  Tehsildar  in  respect  of
sanction of mutation entry.  There is no mention as regards  the  status  or
nature of acquisition  of  any  right  or  interest  or  nature  of  alleged
possession and proportion or share therein.  The notices were issued to  the
constituted attorney instead of issuing  it  to  the  original  owner.   The
procedure of formal enquiry was not followed  which  shows  that  there  was
collusion between the  parties.   The  original  owner,  vide  letter  dated
10.02.1987, stated that he has given power to Laxman Anu Patil for  recovery
of rents only and any transfer of ‘Record’ on the basis  of  the  statements
made by him would be illegal.   Further,  on  13.10.1987,  Kamlakar  Narayan
Samant informed the Tahasildar,  Borivali  that  Laxman  Anu  Patil  is  his
employee and had been given power to recover the  rent  in  respect  of  the
court decree and to protect the property from encroachment.  As far  as  the
suit land is concerned, Respondent No. 1 has  exclusive  possession  of  the
same and the claim of the appellant  that  he  along  with  six  others  was
cultivating or fishing therein and were in possession of the  suit  property
is fraudulent.  The procedure of formal  enquiry  was  not  followed.   From
this conduct, it appears that he has collusion with the appellant.   In  the
Mutation Entry No. 4601, there is  no  mention  as  regards  the  status  or
nature of acquisition  of  any  right  or  interest  or  nature  of  alleged
possession and proportion or share therein.
10)   The land is ‘khajan (marshy)’ land and is not fit for  cultivation  at
any time. Therefore, the claim of the appellant for entering  names  in  the
record of rights pertaining to the said land does not  arise  at  all.   The
claim of the appellant that they were cultivating saline lands  is  baseless
and liable to be rejected. It was also contended before the court  that  the
sub-Divisional Officer  is  competent  to  take  decision  on  the  revision
application under Section 257 of the Maharashtra Land  Revenue  Code,  1966.

Discussion:
11)   From the rival submissions, it is undisputed that the appellant  along
with others was in uninterrupted possession of the  suit  land  since  long.
The appellant herein moved an application  before  the  Tehsildar,  Borivali
that since he and 6  other  persons  were  cultivating  paddy  and  were  in
possession of the suit land  for  the  last  15-20  years,  their  names  be
entered into the “other rights” column of the 7/12 extract in respect of  11
acres of land out of Survey No. 221 of  Village  Eksar.   Due  notices  were
said  to  be  served  to  the  landlord-  Kamlakar  Narayan  Samant  and  on
06.03.1987, Mutation Entry No. 4601 was  made  recording  the  name  of  the
appellant herein along with six other persons in “other  rights”  column  of
the Record of Rights.
12)   It is also relevant to mention that M/s  Gala  Construction  Co.  Pvt.
Ltd.-Respondent  No.  1  and  the  original  owner-Kamlakar  Narayan  Samant
entered into an agreement for sale dated 15.05.1978 with regard to the  land
situated at Village Eksar and Respondent No. 1 filed a Short Cause Suit  No.
1797 of 1981 before the High Court for a declaration that there is a  valid,
subsisting and binding contract between the parties  which  was  granted  on
12.10.1989 and in  pursuance  of  the  same,  on  19.10.1995  a  decree  was
obtained by Respondent No. 1.
13) Vide Mutation Entry being No. 4601 dated 06.03.1987,  the  name  of  the
present appellant along with six other persons was  entered  in  the  “other
rights”  column  of  the  ‘Record  of  Rights’.  Respondent  No.  1   herein
challenged the same in revision before the Sub-Divisional  Officer,  Mumbai,
Suburban  District,  Bandra  (E).   By  order  dated  30.12.2000,  the  Sub-
Divisional Officer allowed the revision while cancelling the mutation  entry
dated 06.03.1987.  Further, the appellant challenged the same in  an  appeal
before the Deputy Collector (Appeals), Mumbai Suburban  District  which  got
dismissed by judgment and order  dated  31.07.2001.   The  appellant  herein
further  filed  a  revision  before  the  Additional  Commissioner,   Konkan
Division, Mumbai which was allowed on 14.03.2003.
14)   In view of the claim of the appellant herein that the  mutation  entry
was recorded after following the due process of law, it was  submitted  that
the notices were served to the original owner, however,  he  did  not  reply
the same or objected to it.  The Extra Awal Karkun,  Borivali,  carried  out
the inspection of the suit land on 06.05.1987 and drawn the site  inspection
note in the presence of panchas on 11.05.1987  and  certified  the  mutation
entry.  On 13.10.1987, the original owner informed the  Tehsildar,  Borivali
that Shri Laxman Anu Patil is his employee  and  had  been  given  power  to
recover rent in respect of the court decree  and  to  protect  the  property
from encroachment.  It was further informed that so  far  as  suit  land  is
concerned, the original owner has exclusive possession  of  the  said  land.
It was also submitted that the constituted attorney of original  land  owner
remained present before the Talathi and had admitted the possession  of  the
appellant on the said land in his statement dated 22.01.1987.   On  a  plain
reading of the Power of Attorney, it can easily  be  seen  that  Laxman  Anu
Patil has no right to give any statement on behalf of the original owner  in
respect of the suit land.  Therefore, the claim of  the  appellant  claiming
tenancy over the suit land is baseless and the tenancy  is  created  without
any evidence.  The mutation entry has been  recorded  keeping  in  view  the
statement of power of attorney holder-Laxman Anu Patil.
15)   The Tehsildar, Borivali, failed to appreciate that  while  seeking  to
enter the name of the appellant in ‘Record  of  Rights’  and  granting  such
request, the appellant had  not  spelt  out  his  status  or  claim  or  his
capacity in which he sought to get  his  name  entered  and  while  entering
their names in the relevant  column,  the  provisions  of  Maharashtra  Land
Revenue Code and the Rules were ignored.
16)   In this context, it is relevant to note the  following  provisions  of
the Maharashtra Land Revenue Code, 1966 which are as under:-
“2. Definitions.-In this Code, unless the context otherwise requires –
      (12) “to hold land” or “to be a landholder” or “holder of land”  means
to be lawfully in possession of land, whether such possession is  actual  or
not.
(23) “occupant” means a holder in actual  possession  of  unalienated  land,
other than a tenant or Government lessee: provided that, where a  holder  in
actual possession is a tenant, the landholder or the superior  landlord,  as
the case may be, shall be deemed to be the occupant.
(24) “occupation” means possession.
(25) “to occupy land” means to possess or to take possession of land.


148. Record of Rights.-A record of  rights  shall  be  maintained  in  every
village and such record shall include the following particulars:-
(a) the  names  of  all  persons  (other  than  tenants)  who  are  holders,
occupants, owners or mortgages of the land  or  assignees  of  the  rent  or
revenue thereof;
(b) the names of all persons  who  are  holding  as  Government  lessees  or
tenants including tenants within the meaning of the relevant tenancy law;
(c) the nature and extent of the respective interests of  such  persons  and
the conditions or liabilities, if any, attaching thereto;
(d) the rent or revenue, if any, payable by or to any of such persons;
(e) such other particulars as the State Government may  prescribe  by  rules
made in this behalf, either generally or for purposes of any area  specified
therein.

149.  Acquisition  of  rights  to  be  reported.-Any  person  acquiring   by
succession, survivorship, inheritance, partition purchase,  mortgage,  gift,
lease  or  otherwise,  any  right  as  holder  occupant,  owner,  mortgagee,
landlord, Government lessee or tenant of the land situated in  any  part  of
the State or assignee of the rent or revenue thereof,  shall  report  orally
or in writing his acquisition of such right  to  the  Talathi  within  three
months from the date of such acquisition, and  the  said  Talathi  shall  at
once give a written acknowledgement of the receipt of  such  report  to  the
person making it:….

150. Register of mutations and  register  of  disputes  cases:  -   (1)  The
Talathi shall enter in a register of mutations  every  report  made  to  him
under section 149  or  any  intimation  of  acquisition  or  transfer  under
section 154 or from any Collector.
(2) Whenever a Talathi makes an entry  in  the  register  of  mutations,  he
shall at the  same  time  post  up  a  complete  copy  of  the  entry  in  a
conspicuous place in the Chavdi, and shall give written  intimation  to  all
persons appearing from the record of rights or register or mutations  to  be
interested in the mutation, and to any other person whom he  has  reason  to
believe to be interested therein.
(3) When any objection to any  entry  made  under  sub-section  (1)  in  the
register of mutations is made either orally or in writing  to  the  Talathi,
it shall be the duty  of  the  Talathi  to  enter  the  particulars  of  the
objections in a register of disputed cases. The Talathi shall at  once  give
a written acknowledgement for the objection to the person making it  in  the
prescribed form.
(4) Disputes entered in the register of  disputed  cases  shall  as  far  as
possible be disposed of within one year by a revenue or survey  officer  not
below the rank of an Aval Karkun and orders disposing of objections  entered
in such register shall be recorded in the  register  of  mutations  by  such
officer in such manner as may be prescribed  by  rules  made  by  the  State
Government in this behalf.
(5) The transfer of entries from the register of mutation to the  record  of
rights shall be effected subject to such rules as may be made by  the  State
Government in this behalf.
Provided  that,  an  entry  in  the  register  of  mutations  shall  not  be
transferred to  the  record  of  rights  until  such  entry  has  been  duly
certified.
(6) Entries in the register of  mutations  shall  be  tested  and  if  found
correct, or after correction, as the case may be, shall be certified by  any
revenue or survey officer not below the rank  of  an  Aval  Karkun  in  such
manner as may be prescribed:
Provided that, entries in respect of  which  there  is  no  dispute  may  be
tested and certified by a Circle Inspector.
Provided further that no such entries shall be certified  unless  notice  in
that behalf is served on the parties concerned.
(7) The State Government may direct that a register of  tenancies  shall  be
maintained in such manner and under such procedure as may be  prescribed  by
rules made by the State Government in this behalf.”

17)   The aforesaid provisions were considered by the Bombay High  Court  in
Bansrajidevi  wd/o  Bhuval  Singh  Ramniranjan  Singh  and  Others  vs.  M/s
Byramjee Jeejeebhoy Pvt. Ltd. and Others 2006 (6) Mh.L.J. 95 wherein it  was
held as under:-
“8. It is thus clear that to exercise the right under section 148 read  with
Sections 149 and 150 of the Code for entering one’s name in  the  Record  of
Rights, the applicant has to be a  holder,  occupant,  owner,  mortgagee  or
tenant. Such a right is also available to a  person  acquiring  interest  in
the property by succession, survivorship, inheritance,  partition,  purchase
mortgage, gift, lease or otherwise.  Bhuvalsingh  claimed  that  he  was  in
occupation of 27 acres of land and he was holder  of  the  same  right  from
1950 and, therefore, his claim was required  to  be  entered  in  the  Other
Rights column. These contentions have been rejected by the Deputy  collector
and confirmed by the Additional  Divisional  Commissioner  and  rightly  so.
Merely a holder or occupant does  not  meet  the  requirements  of  law  for
exercising  such  a  right.  Section  2(12)  of  the  Code,  as   reproduced
hereinabove, makes it clear that to be a “land holder” or “holder  of  land”
means to be lawfully in possession  of  land,  whether  such  possession  is
actual or not and as per section 2(23) “occupant” means a holder  in  actual
possession  of  unalienated  land.  It   was,   therefore,   necessary   for
Bhuvalsingh to prove that his possession or occupation over  the  suit  land
was lawful or he had come in possession by a legal conveyance/title  or  any
other instrument like receipt etc. to which  the  respondent  No.  1  was  a
party or at its instance. Merely saying that none of  the  officers  of  the
respondent No. 1 or its agents or representatives objected at  any  time  to
his possession does not make his possession lawful, even if it  is  accepted
that he was in possession. He has  to  prove  his  title  of  possession  by
pointing out that it was  lawful  and  if  such  requirement  could  not  be
proved, the revenue authorities below were right in calling  Bhuvalshing  as
the encroacher on the private land who  was  entitled  to  exercise  such  a
right. The Tehsildar and subsequently the SDO  did  not  consider  the  main
issue as to whether Bhuvalsingh was in lawful possession of the  suit  land.
Under the Maharashtra Land Revenue Code, the Government of  Maharashtra  has
framed Maharashtra Revenue Record of Rights and Registers  (Preparation  and
Maintenance) Rules, 1971 and Rule 10 thereunder gives form  of  register  of
mutations. Rule 11 is regarding making entries  in  register  of  mutations.
Rule 12 is regarding recording mutations in certain cases,  Rule  13  states
that whenever an entry is made in  the  register  of  mutations  under  sub-
section (1) of section 150 in  relation  to  any  land,  the  Talathi  shall
indicate, in pencil the number of that  mutation  entry  against  the  entry
relating to that land appearing in the record  of  rights  with  the  remark
that the mutation entry has not  been  duly  certified.  After  this  pencil
entry is certified, it becomes an ink entry confirming  the  entry  made  in
pencil.  It  was  necessary  for  the  Tehsildar  and  the   SDO   to   test
Bhuvalsingh’s application on remand  on  the  basis  of  the  provisions  of
sections 2(12), 2(23) and 148, 149 and  150  of  the  Code  and  both  these
officers appear to have been overwhelmed by the report  or  the  Tehsildar’s
satisfaction  by  personal  visit  to  the  land  that  Bhuvalsingh  was  in
possession of the said land. Recording the  claimant’s  name  in  the  other
rights column merely  on  the  basis  of  possession  is  nothing  short  of
perversity and unless the officer concerned  was  satisfied  that  the  said
possession was lawful such an entry could not have  been  done  irrespective
of whether the original owners appeared and contested the plea and  more  so
when the officer was performing a statutory duty. When  the  statute  states
that a duty has to be performed or an enquiry  has  to  be  conducted  in  a
particular manner, it is well settled, it has to  be  done  in  that  manner
alone  and  it  was  necessary  for  the  Tehsildar  to  ensure   that   the
requirements of the Code were satisfied by  the  petitioners’  predecessor”.
          (emphasis supplied by us)

18)    It is thus clear that to exercise the right under  section  148  read
with Sections 149 and 150 of the Code for entering one’s name in the  Record
of Rights, the applicant has to be a holder, occupant, owner,  mortgagee  or
tenant. Such a right is also available to a  person  acquiring  interest  in
the property by succession, survivorship, inheritance,  partition,  purchase
mortgage, gift, lease or otherwise. We fully approve the view taken  by  the
Bombay High Court in the aforesaid decision.  The appellant claimed that  he
along with others is in possession of the  suit  land  for  the  last  15-20
years and, therefore, his claim was required to be  entered  in  the  “Other
Rights” column. This contention has  been  rejected  by  the  Sub-Divisional
Officer as well as by the Deputy Collector (Appeals) but  confirmed  by  the
Additional Commissioner. Merely a holder  or  occupant  does  not  meet  the
requirements of law for exercising such a right. Section 2(12) of the  Code,
as reproduced hereinabove, makes it clear that to  be  a  “land  holder”  or
“holder of land” means to be lawfully in possession of  land,  whether  such
possession is actual or not and as per  Section  2(23)  “occupant”  means  a
holder  in  actual  possession  of  unalienated  land.  It  was,  therefore,
necessary for the appellant to prove that his possession or occupation  over
the suit  land  was  lawful  or  he  had  come  in  possession  by  a  legal
conveyance/title or any other instrument like  receipt  etc.  to  which  the
Respondent No. 1 was a party or at its instance. It is also not the case  of
the appellant that he has perfected his title over the land in  question  by
way of adverse possession.
19)   Merely saying that the Respondent No. 1 or the original owner did  not
object at any time to the possession, does not make his  possession  lawful,
even if it is accepted that he was  in  possession.  The  appellant  has  to
prove his title of possession by pointing out that  it  was  lawful  and  if
such requirement could not be proved,  mutation  entry  is  required  to  be
cancelled. Recording the name of the appellant along with six others in  the
other rights column merely on the basis of possession is  nothing  short  of
perversity and unless the officer concerned  was  satisfied  that  the  said
possession was lawful such an entry could not have  been  made  irrespective
of whether the original owners appeared and contested the plea and  more  so
when the officer was performing a statutory duty. When  the  statute  states
that a duty has to be performed or an enquiry  has  to  be  conducted  in  a
particular manner, it is well settled, it has to  be  done  in  that  manner
alone  and  it  was  necessary  for  the  Tehsildar  to  ensure   that   the
requirements of the Code were satisfied by the petitioners’ predecessor.
20)   In our considered opinion, the name of the appellant  along  with  six
others could not  have  been  recorded  in  the  ‘Record  of  Rights’  which
contains the names of the persons who claim title to the land.   We  further
hold that since appellant and others never claimed that they had  any  title
to the land, entering their names in the ‘Record of Rights’ was not  at  all
justified and, therefore, the Mutation Entry No. 4601 could  not  have  been
made in  the  said  record.   Hence,  the  Mutation  Entry  No.  4601  dated
06.03.1987 has rightly been set aside.  The  appeal  is  dismissed  with  no
order as to costs.

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




.…....…………………………………J.
   (R.K. AGRAWAL)


NEW DELHI;
OCTOBER 8, 2015.

ITEM NO.1C               COURT NO.12               SECTION IX
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                        Civil Appeal No. 8399 of 2015
         (Arising out of Special Leave Petition (C) No. 26698/2010)


NARAYAN LAXMAN PATIL                               Petitioner(s)

                                VERSUS

M/S GALA CONSTRUCTION CO.P.LTD.& ORS.              Respondent(s)



Date : 08/10/2015      This appeal was called on for pronouncement of
            judgment today.

For Petitioner(s)      Ms. Abha R. Sharma, AOR


For Respondent(s)      Mr. R. N. Keshwani, AOR

                       Mr. E. C. Agrawala, AOR


      Hon'ble Mr. Justice R.K. Agrawal pronounced  the  reportable  judgment
of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi and His Lordship.
      Leave granted.
      The appeal is dismissed in terms of the signed reportable judgment.


      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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