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)

skid marks of the tyres of bus are about 32 ft. in length which were because of the speed of bus.The speed of the bus was quite high and at the relevant time it canno t be stopped immediately. The High Court has, therefore, correctly held that the bus was driven rashly and negligently and at a very fast speed. Therefore, the question of accident being a result of contributory negligence does not arise. what rate of conversion to be applied. As in the present case, we find from the claim petition that claimant had claimed the amount only in Indian rupees and there is no specific mention of US dollars, there is no question of applying any exchange rate. The Tribunal, while awarding compensation under the head ‘Special Damages’ in terms of US dollars when converted into Indian rupees, we find that the amount comes much less than the amount claimed by the claimant in the claim petition. Therefore, there is no question of any further reduction in the said amount.We are also of the view that the amount awarded by the Tribunal as modified by the High Court and further modified by us by awarding a sum of Rs. 10 lakhs towards the cost of helper/attendant is appropriate and does not call for any further enhancement. In view of the aforementioned discussions, Civil Appeal No. 2967 of 2012 is dismissed. However, Civil Appeal Nos. 9944-9946 of 2011 are partly allowed. Interlocutory applications, if any, are disposed of accordingly. In the facts and circumstances of the case, the parties shall bear their own costs.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       1 CIVIL APPEAL NO. 2967 OF 2012


Rajasthan State Road Transport Corpn.           .... Appellant(s)

            Versus

Alexix Sonier & Anr.                                       ....
Respondent(s)

     WITH

                                      2


3         CIVIL APPEAL NO. 9944-9946 OF 2011



                                      4


                               J U D G M E N T

R.K. Agrawal, J.

Civil Appeal No. 2967 of 2012
1)    This appeal has been filed  by  the  Rajasthan  State  Road  Transport
Corporation (in short ‘the Corporation’)-the appellant  herein  against  the
judgment and order dated 23.04.2010 passed by the High Court  of  Judicature
for Rajasthan at Jaipur Bench, Jaipur in S.B. Civil Misc.  Appeal  No.  2629
of 2003 wherein the appeal filed by the present appellant  has  been  partly
allowed  and  the  sum  of           US$125,348.01  awarded  by  the   Motor
Accidents Claims Tribunal (in  short  ‘the  Tribunal’)  under  the  category
‘Special Damages’ has been disallowed and the remaining part  of  the  award
has been maintained.
Civil Appeal Nos. 9944-9946 of 2011
2)    The above appeals have  been  filed  by  Alexix  Sonier  through  next
friend-Mrs. Dominique Sonier (his mother)- against the aforementioned  order
passed by the High Court wherein  the  appeal  filed  by  the  claimant  for
enhancement of amount awarded by the Tribunal has been dismissed.
Brief facts:
 3)  Alexix Sonier-the claimant is an American citizen. On  08.01.1988,  the
claimant was participating in a ‘Peace March’ along  with  the  citizens  of
various other countries from Ahmedabad, in the State of Gujarat to  Rajghat,
in New Delhi.  While participating in  the  aforesaid  march  along  with  a
group of other persons, between Jaipur and Delhi, near Chandwazi, a  bus  of
the Corporation, bearing Registration No. RNP-897, which was driven  by  one
Banwari Lal Chowdhary rashly and negligently, at a  very  high  speed,  came
and struck the claimant from behind.  As a result  of  which,  the  claimant
fell down on the road and became unconscious and sustained injuries  in  the
said accident.  The claimant was taken to  the  Sawai  Man  Singh  Hospital,
Jaipur where it was found that among other injuries  he  had  also  received
head injury.  Three surgical operations  were  performed  on  the  claimant,
however, he did not regain consciousness.  On medical advice,  the  claimant
was shifted to Vadilal Sarabhai Hospital,  Ahmedabad,  Gujarat  and  despite
all possible efforts, the condition of the claimant  did  not  improve.   He
was discharged from the hospital at Ahmedabad on 22.04.1988 and  shifted  by
air, under medical supervision of the  doctors,  to  the  United  States  of
America.  The claimant, through his next  friend-Mrs.  Dominique  Sonier-his
mother, filed a claim petition through an authorized person  viz.,  Surendra
Nath Singh Javeria.  Mrs.  Dominique  Sonier-mother  of  the  claimant  also
joined the said claim petition through  that  authorized  person.    In  the
claim petition, after narrating the entire facts of the  accident,  injuries
as also the treatment  undergone,  a  total  sum  of  Rs.  2,02,36,000/-  as
compensation was claimed along with interest at the rate of  18%  per  annum
from the date of filing of the  claim  petition  till  the  actual  date  of
payment.
4)     The  various   heads   under   which   the   claimant   had   claimed
damages/compensation are as follows:-
(i) For treatment undertaken in India
Rs. 1,50,000/- less Rs. 16411.79 = Rs. 1,33,588.21
(ii) Expenses to be paid to Dr. Chawala for his services + the amount  spent
in shifting the patient from Jaipur to Ahemadabad by air: Rs. 1,40,000/-
(iii) The amount spent for treatment in America = Rs. 13,00,000/-
(iv) The amount proposed to be spent on keeping a nurse at home at the  rate
of Rs. 40,000/- per month.  A sum of Rs. 4,00,000/- is  claimed  under  this
head.
(v) Compensation for loss of earning Rs. 1,68,000/-
(vi) Compensation for loss of future earnings Rs. 1,25,00,000/-
(vii) Compensation for physical and mental suffering Rs. 25,00,000/-
(viii) Compensation for need of a helper Rs. 25,00,000/-
(ix) Compensation for keeping an attendant Rs. 10,00,000/-
(x) Compensation for the loss of earning of his mother who will  look  after
him Rs. 10,00,000/-
Hence, a total sum of Rs. 2,02,36,000/- was claimed.
5) The Corporation, apart from raising the objections on technical  grounds,
denied the manner in which the accident occurred  as  stated  in  the  claim
petition.  A specific stand was taken that the accident occurred on  account
of the negligence of the claimant himself and, at best, it  was  a  case  of
contributory negligence as the claimant was trying to  cross  the  road  but
midway he back tracked and met with an accident.   It  was  further  pleaded
that the best medical facilities were available at Jaipur and there  was  no
need to shift the claimant from Jaipur to Ahmedabad without having the  full
treatment at Jaipur itself.  Also, there was no necessity for  the  claimant
to proceed to United States of America  without  proper  treatment  and  the
Corporation was not liable for the condition of the claimant-Respondent  No.
1 herein.  Further, the expenses in the claim petition were  very  high  and
exaggerated so also the amount of compensation claimed.
6) The Tribunal held the claim petition to be in  accordance  with  law  and
properly presented.  It, however, held that the  accident  had  occurred  on
account of negligence on the part of the driver  of  the  Corporation.   The
Tribunal, on the basis of evidence on record, awarded damages as follows:-
“(a) Special Damages                             Dollar     Rupees
(i) Expenses incurred on treatment in India               50,000/-
(ii) Air Fare for Jaipur to Ahmedabad                       4,000/-
(iii) Air Fare to Ahmedabad to USA                           1,00,000/-
(iv) Medical Expenses in USA
     borne by Medi-Cal                       125,348.01
(v) Medical expenses in USA borne by parents    25,000.00
(vi) Future expenses on Medical Treatment                     4,00,000/-
(vii) Loss of income by Claimant             408,000.00
(viii) Loss of income of attending mother              81,584.00
(ix) Future expenses for management
     of attendant                                 60,000.00
(x) Expenses on Two Commissions                         1,61,954/-
(b) General Damages
(i) For pain, sufferance and mental agony                    10,00,000/-
(ii) For loss of amenities and enjoyment of life             10,00,000/-
Total                                  $699,932.01  Rs. 27,15,954/-
So Total damages in Rupees: (699932.01 x 14) + 2715954 = Rs. 1,25,15,002.14
In round figure, it is Rs. 1,25,15,002/-“

The Tribunal further awarded interest at the rate of 6 per  cent  per  annum
with effect from the date of presentation of the claim  petition,  that  is,
07.07.1988,  after  deducting  a  sum  of  Rs.  25,000/-  paid  to  the  two
Commissioners who were appointed for  the  recording  of  evidence  and  Rs.
1,16,411.69/- towards the expenses incurred  and  the  amount  paid  by  the
Corporation for the treatment etc., in India to the claimant.
7)    Being aggrieved by the Award  dated  29.09.2003,  the  Corporation  as
also the claimant have filed appeals before the High Court.  The High  Court
gave an opportunity  to  the  parties  to  arrive  at  a  mutual  settlement
regarding the claim but the Corporation declined to  negotiate  the  matter.
It may be mentioned here that  on  an  application  filed  by  the  claimant
before the Tribunal seeking appointment of  a  Commissioner  to  the  United
States of America to record the statements  of  11  persons,  the  Tribunal,
vide order dated 11.07.1990, allowed the  said  application  to  record  the
statements of 11 persons as mentioned in the  order  and  also  appointed  a
Commissioner for that purpose.  It was contended by the appellant  that  AW-
10A to AW-19 all of whom except AW-18 were not  named  in  the  order  dated
11.07.1990. The Commissioner submitted his report and also the  evidence  of
all the persons recorded by him before  the  Trinbunal.   No  objection  was
taken by the Corporation regarding recording  of  evidence  of  persons  not
named in the order dated 11.07.1990.   In fact, the Tribunal, in  its  order
dated 24.06.1991,  has  specifically  recorded  that  Mr.  Manish  Bhandari,
learned counsel who appeared on behalf of the Corporation was  asked  as  to
whether he has any objection to take on record the statements  of  witnesses
but he did not raise any objection and  the  statements  of  witnesses  were
taken on record.
8) Before the High  Court,  the  Corporation  took  an  objection  that  the
evidence recorded by the Commissioner of the persons who were not  named  in
the  order  dated  11.07.1990  cannot  be  taken  into  consideration.   The
Corporation also objected to the order  of  the  Tribunal  awarding  damages
under the head ‘Special Damages’ in respect of medical expenses incurred  in
United States of America borne by Medi-Cal  amounting  to  US$125,348.01  on
the ground that witness AW-18 had admitted that in the State  of  California
a medical programme is in force under which persons  who  were  not  covered
under any insurance and/or unable to pay their medical expenses,  all  their
medical expenses will be borne by the State.  According to the  Corporation,
since the aforesaid amount has  been  awarded  under  the  head  of  medical
expenses borne by Medi-Cal, the claimant cannot be held entitled to  receive
the aforesaid amount of US$125,348.01 and the same is liable to be  reduced.
 It was further submitted before  the  High  Court  that  the  claimant  has
failed to prove the negligence on the part of the driver of the  Corporation
and the Tribunal has erred in applying and holding the  Corporation  liable.
The High Court, on appreciation of evidence on record, upheld  the  findings
of the Tribunal that the driver of the bus of the Corporation was  negligent
and driving the bus rashly and it is not a case of contributory  negligence,
however, the High Court deleted the amount of US$125,348.01 under  the  head
of special damages on the ground that there is no manner for the  courts  in
India to verify the fact as to whether or not the aforesaid amount  will  be
paid to the concerned Medi-Cal department by the  claimant  and  apart  from
it, no statutory enactment of any such Scheme was produced before the  Court
in evidence of existence of such a Scheme for the Court to  take  cognizance
of.  Moreover, there is no averment in  the  claim  petition  regarding  the
amount spent by the Medi-Cal Programme and  for  reimbursing  the  aforesaid
amount to the said  department.   The  High  Court  further  held  that  the
statements of the persons recorded by  the  Commissioner,  pursuant  to  the
order dated 11.07.1990,  cannot  be  ignored  and  have  to  be  taken  into
consideration in view of  the  fact  that  the  Corporation  had  raised  no
objection, as would be clear from the  order  dated  24.06.1991.   The  High
Court, however, declined to enhance the amount of award by the  Tribunal  by
stating that it cannot be said to be inadequate.

9)    Heard the arguments advanced by learned counsel for  the  parties  and
perused the records.  Since a common question of  law  and  facts  arise  in
these appeals, they are being disposed of by this common judgment.

10)   Learned Counsel for the Corporation  submitted  that  the  High  Court
erred in law in upholding the order of the  Tribunal  awarding  compensation
to the claimant which  is  highly  on  the  exaggerated  side.   He  further
submitted that the claimant had not claimed  any  damages  in  terms  of  US
Dollars and claim was made only in Indian currency, therefore, the award  of
compensation by the Tribunal as upheld by  the  High  Court  in  respect  of
certain claims  in  US  Dollars  was  not  justified  in  law.   He  further
submitted that there was no question of applying the currency exchange  rate
of Rs. 14 per US Dollar as the claim itself has not been  made  in  it.   He
further contended that the driver of the bus of the Corporation was  not  at
fault and he was not driving the bus rashly or speedily and in fact,  if  at
all, the accident was a result of contributory  negligence,  and  therefore,
the Corporation is not liable to pay any amount as damages or  compensation.

11)   Learned counsel for the claimant, on the other  hand,  submitted  that
the High Court was not justified in deleting the  medical  expenses  in  USA
borne by Medi-Cal, as in the State of California, it  is  government  policy
that medical treatment is to be given by the State to such persons  who  are
unable to afford and further such persons  are  not  reimbursed  by  anybody
else, however, if any reimbursement of any medical expense is  received,  it
has to go to  the  State.   He  further  submitted  that  the  claimant  was
entitled to the amount given by the Tribunal under expenses borne  by  Medi-
Cal.  He further submitted that the  claimant  was  also  entitled  for  the
amount to be spent for helper/attendant to be engaged as  the  claimant  had
suffered brain injury and have been confined to bed.  According to  him,  as
the expenses have been incurred and  are  to  be  incurred  in  US  dollars,
exchange rate which was prevalent at the time of the passing  of  the  award
by the Tribunal ought to be given.  In support of this, he  placed  reliance
on a decision of this Court in Sanjay Verma vs. Haryana  Roadways  (2014)  3
SCC 210.
12)   With regard to the plea taken by the Corporation  that  the  statement
of the persons recorded by the court appointed Commissioner,  who  were  not
named in the order dated 11.07.1990 cannot be taken on record is  concerned,
we find that though the Commissioner has recorded evidence of persons  viz.,
AW-10A to AW-19  except  AW-18  who  were  not  named  in  the  order  dated
11.07.1990, yet, when the Commissioner  filed  the  report  along  with  the
evidence so recorded, a specific question was put  to  the  counsel  of  the
Corporation as to whether he has any objection but  he  did  not  raise  any
objection as would be clear from the order dated 24.06.1991  passed  by  the
Tribunal which for ready reference is reproduced below:
“On behalf of the applicant Shri Bhartiya and on behalf  of  R.S.R.T.C  Shri
Manish Bhandari and Commissioner          Shri Bhag Chand Jain are  present.
Today Shri Bhag Chand Jain,  court  commissioner  presented  an  application
annexing the statements which he recorded of  10  witnesses  after  visiting
America. Shri Manish Bhandari was asked whether  he  has  any  objection  to
take on record the statement of witnesses Dr. E.Scott Conner, Dr. Thomas  Z.
Weber, Mr. Courtney Billups, Mr. Kent Furguson, Mr.  Walter  Joseph  Babine,
Mr. Jan Robert,  Mrs.  Nancy  Brooks,  Miss  Maureen  Mckenzie,  Mrs  Carole
Kellogg and Mr. Ivan Sonier. Mr. Ivan  Sonier  which  was  recorded  in  his
presence.  He  did  not  raise  any  objection.  Therefore   the   aforesaid
statements of witnesses are taken on record and exhibited as AW 10A and  AW-
19. The applicant concludes his depositions.”

In this view of the matter, it is not now open for the Corporation to  raise
this plea.
13)   So far as the question as to whether the accident  in  question  which
occurred on 08.01.1988 was  a  result  of  contributory  negligence  or  the
driver of the bus of the Corporation was  driving  rashly  and  speedily  is
concerned, we find that the driver of the bus had denied that  any  accident
in fact had taken place, however, the site plan (Exh. 52),  which  has  been
taken into consideration by the High Court, shows that the  bus  was  driven
at a sufficiently high speed and skid marks of the tyres of  bus  are  about
32 ft. in length which were because of the speed of bus.The speed  of  the
bus  was  quite  high  and  at  the  relevant  time  it  canno  t  be  stopped
immediately.  The High Court has, therefore, correctly  held  that  the  bus
was driven rashly and negligently and at a very fast speed.  Therefore,  the
question of accident being a result  of  contributory  negligence  does  not
arise.  So far as the question regarding  the  amount  of  damages/award  in
respect of Medi-Cal, which has been deleted by the High Court is  concerned,
we are of the considered opinion that in the State of California,  there  is
a Scheme under which persons who are not covered under any insurance  scheme
like claimant are extended medicare facilities for which no  payment  is  to
be made by such persons and only the amount received  as  reimbursement  has
to be handed over to the Medi-Cal Department.  In the present case, we  find
that  the  Medi-Cal  Department  has  already  incurred  expenses  for   the
treatment of the claimant.  It will be very difficult to keep  a  track,  as
observed by the High Court, as to whether  the  amount  awarded  under  this
head would be paid over to the Medi-Cal Department or  not,  and  therefore,
in our considered view, the High Court was justified in modifying the  award
of the Tribunal by disallowing US$125,348.01  under  the  category  ‘Special
Damages’ relating to the Medi-Cal.
14)   However, we find that the claimant had claimed a sum of Rs.  10  lakhs
for keeping an attendant for the entire life.  Neither the Tribunal nor  the
High Court had given any amount under the said  head.   We  find  that  this
Court, in the case of Sanjay Verma (supra), has held that  where  any  claim
is made towards cost of attendant from the date of accident till he  remains
alive and it is also proved, then that claim is justified. In  paragraph  22
of Sanjay Verma (supra) this court has held as follows:

“22. In the claim petition filed before the Motor Accidents Claims  Tribunal
the claimant has prayed for an amount of  Rs  2,00,000  being  the  cost  of
attendant from the date of accident till he remains alive. The  claimant  in
his deposition had stated that “he needs one person to be with him  all  the
time”. The aforesaid statement of the claimant  is  duly  supported  by  the
evidence of PW 1 who has described the medical condition of the claimant  in
detail. From the aforesaid materials, we are satisfied that the  claim  made
on this count is justified and the amount of  Rs  2,00,000  claimed  by  the
claimant under the aforesaid head  should  be  awarded  in  full.  We  order
accordingly.”


Following the principles laid down by this Court  in  Sanjay  Verma  (Supra)
reproduced above, we accordingly hold that the claimant is  entitled  for  a
sum of Rs. 10 lakhs plus interest at the rate of 6  %  per  annum  from  the
date of presentation of the claim petition till the date of  actual  payment
towards expenses to be incurred for keeping an attendant  for  the  rest  of
his life to look after him.
15)   We further find that even though the  claimant  had  not  claimed  any
amount in US dollars in the claim petition and the entire claim was  in  the
Indian currency, the amount awarded by the Tribunal in respect  of  some  of
the items under head ‘Special  Damages’  has  been  given  in  terms  of  US
dollars and the exchange rate has been applied at the  rate  of  14  per  US
dollar. This has been  done  on  the  specific  finding  that  the  claimant
himself had claimed exchange rate of Rs. 14  per  US  dollar.   Even  though
this Court in the case of United India Insurance Co. Ltd.  and  Others.  Vs.
Patricia Jean Mahajan and Others (2002) 6 SCC 281 has held that there  would
be three relevant dates for the purpose, viz., the date on which the  amount
became payable, the date of the filing of the  suit  and  the  date  of  the
judgment and it would be fairer to both the parties to take  the  latest  of
these dates, namely, the date of passing of the decree as the relevant  date
for applying the conversion rate.  Yet,  where  the  prayer  for  passing  a
decree is indicated in rupees, there would  not  be  any  dispute  regarding
what rate of conversion to be applied.  As in  the  present  case,  we  find
from the claim petition that claimant had claimed the amount only in  Indian
rupees and there is no specific mention of US dollars, there is no  question
of applying any exchange rate. The  Tribunal,  while  awarding  compensation
under the head ‘Special Damages’ in terms of US dollars when converted  into
Indian rupees, we find that the amount  comes  much  less  than  the  amount
claimed by the claimant in the claim petition.     Therefore,  there  is  no
question of any further reduction in the said amount.
16)   We are also of the view that the amount awarded  by  the  Tribunal  as
modified by the High Court and further modified by us by awarding a  sum  of
Rs. 10 lakhs towards the cost of helper/attendant is  appropriate  and  does
not call for  any  further  enhancement.   In  view  of  the  aforementioned
discussions, Civil Appeal No. 2967 of  2012  is  dismissed.  However,  Civil
Appeal  Nos.  9944-9946  of  2011  are   partly   allowed.     Interlocutory
applications, if any,  are  disposed  of  accordingly.   In  the  facts  and
circumstances of the case, the parties shall bear their own costs.

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


















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

NEW DELHI;
OCTOBER 8, 2015.
ITEM NO.1B               COURT NO.12               SECTION XV
(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(s).  2967/2012

RAJASTHAN STATE ROAD TPT CORPN.                    Appellant(s)

                                VERSUS

ALEXIX SONIER & ANR.                               Respondent(s)



WITH
C.A. Nos. 9944-9946/2011

Date : 08/10/2015      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s)       Mr. S. K. Bhattacharya, AOR
                       Mr. Niraj Bobby Paonam, Adv.

                       Mr. Rajiv Shankar Dvivedi, AOR

For Respondent(s)      Mr. Rajiv Shankar Dvivedi, 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.
      Civil Appeal No. 2967 of 2012 is dismissed and Civil Appeal Nos. 9944-
9946 of 2011 are partly allowed.  Interlocutory applications,  if  any,  are
disposed of in terms of the signed reportable judgment.

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

a third party auction-purchaser’s interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise.==Applying the principles given in the aforementioned decisions to the facts of the present case, we find that in the order dated 10.02.2009, the learned single Judge while allowing the Notice of Motion No. 21 of 2006 had held that the highest offer made by the respondent therein (appellant before us) stood accepted by all the parties to the suit and thereafter passed certain directions to deposit the bid amount, execution of the conveyance deed etc. Thus a vested right has been created in favour of the respondent therein, that is, the present appellant and that cannot be set at naught simply by permitting the Defendant Nos. 4A, 4B and 5 to withdraw the Notice of Motion filed by them. It was for the Division Bench to decide the appeal on merits instead of permitting the withdrawal of the Notice of Motion and observing that the order of the learned single Judge passed on that Motion dated 10.02.2009 does not survive for consideration. 18) In view of the foregoing discussion, the order dated 01.03.2012 passed by the High Court of Bombay under appeal cannot be sustained and is hereby set aside. The High Court is directed to decide the appeal afresh on merits in accordance with law. The appeal is hereby allowed.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 8397 OF 2015
        (Arising out of Special Leave Petition (C) NO. 10721 OF 2012)



Avenue Supermarts Pvt. Ltd.                                 ....
Appellant(s)

            Versus

Mrs. Nischint Bhalla & Ors.                             .... Respondent(s)


                                      1

                               J U D G M E N T

R.K. Agrawal, J.

1)    Leave granted.
2)    The present appeal has been  filed  against  the  judgment  and  order
dated 01.03.2012 passed by the Division Bench of the High  Court  of  Bombay
in Appeal No. 271 of 2009 in Notice of Motion No. 21 of  2006  in  Suit  No.
3706 of 1995.   Before the High Court,  an  appeal  was  filed  against  the
order dated 10.02.2009 passed by the learned single Judge of the High  Court
on a Notice of Motion taken by Defendant Nos. 4A, 4B and 5  respectively  in
the aforementioned  suit  for  enforcement  and  implementation  of  certain
orders passed by the Court on consent of the parties to the suit.

3)    However, before the Division Bench, the original  Defendant  Nos.  4A,
4B and 5 sought withdrawal of the Notice of Motion No. 21 of 2006  filed  by
them in the Suit No. 3706 of 1995.  The Division Bench  of  the  High  Court
opined that as the Notice of Motion taken out by Defendant Nos. 4A,  4B  and
5 seeking interim reliefs and now they seek withdrawal of that motion,  they
cannot be prevented from withdrawing the  same  with  the  liberty  to  seek
appropriate  relief  to  which  they  may  be  entitled   in   the   changed
circumstances.   It had further held that as a result of the  withdrawal  of
the motion, the order of the learned  single  Judge  passed  on  the  motion
dated 10.02.2009 does not survive for consideration  rendering  this  appeal
infructuous.
4) Brief facts:
(a)   One Smt Durga Devi Hitkari was owner of various properties at  Mumbai.
 She died in the year 1991.  It appears that there was some dispute  between
her heirs regarding the estate left by her.  The  plaintiffs  therein  filed
the present suit for administration of estate of the deceased.   The  Notice
of Motion being No. 3441 of 1995 in the suit was  taken  by  the  plaintiffs
therein praying for appointment of a receiver  on  the  properties  left  by
Late Smt Durga Devi and for temporary injunction restraining the  defendants
therein from disposing or selling or creating  any  third  party  rights  or
interest in the property.
(b)   A learned single Judge of the High Court, vide order dated  04.08.1998
disposed of the Notice  of  Motion  by  restraining  the  defendants,  their
agents  and  servants  from  creating  any  third  party  interest   in   or
encumbering  or  selling  or  transferring  or  alienating  in  any   manner
whatsoever the  immovable  properties  bearing  Survey  No.  97  of  Mandavi
Division, admeasuring 202 sq. yards, Plot  No.  66  at  Chembur,  Ghatkopar,
Mahul Road, admeasuring 502 sq. yards and ground Ist, 6th and 7th  floor  of
Sky  Lark  Building  known  as  Hitkari  House  along  with  certain   other
directions.
(c)   On 01.12.1999, the said Award was made rule of the court by  the  High
Court and a decree in terms of the said  Award  was  passed  in  Arbitration
Petition No. 148 of 1997.
(d)   Being  aggrieved,  defendants  therein  moved  this  Court  by  filing
special leave petition being No. 9168 of 2000. Before  this  Court,  learned
counsel for the parties filed consent terms of  compromise  duly  signed  by
the parties.  Vide order dated 11.12.2000, the special  leave  petition  got
disposed of in terms of the consent terms dated  11.12.2000.   However,  the
said order was passed without prejudice to the  parties  to  move  the  High
Court of Bombay for probate proceedings.  The High Court, vide  order  dated
15.04.2004, disposed of the Notice of Motion No. 2998 of 2001 filed in  Suit
No. 3706 of 1995 in terms of the minutes of the order.
(e)   In the minutes, the earlier order of the learned  single  Judge  dated
04.08.1998 restraining the defendants from transferring  immovable  property
situated at Chembur was  modified  and  Defendant  Nos.  1,  4  and  6  were
permitted to take all necessary steps to  sell  the  said  property  on  the
terms and conditions mentioned in the minutes.
(f)   Bids were invited for the sale of the  property  at  Chembur  and  the
appellant herein gave bid of  Rs.  20,15,00,000/-  which  was  found  to  be
highest and accepted by the parties also.  No  challenge  was  made  to  the
sale contemplated under the provisions of the Code of Civil Procedure,  1908
(in short ‘the Code’).  As there was delay in execution  of  the  agreement,
Defendant Nos. 4A, 4B and 5 made an application by way of Notice  of  Motion
being No. 21 of 2006 to the court for completion  and  confirmation  of  the
sale process.  The learned single Judge of the High Court, vide order  dated
10.02.2009  confirmed  the  sale  process  and  directed  execution  of  the
documents in favour of the appellant.
(g)   The original Defendant Nos. 2, 6 and  7  challenged  the  order  dated
10.02.2009 by way of Letters Patent Appeal being No. 271 of 2009 before  the
Division Bench of the High Court.  The original Defendant Nos. 4A, 4B and  5
did not challenge the order dated 10.02.2009.
(h)   At the appellate stage, original Defendant Nos. 4A, 4B and 5  made  an
oral application for withdrawal of the notice of motion filed by them.   The
Division Bench of the High Court, vide order dated 01.03.2012,  allowed  the
withdrawal of the Motion while holding that the order of the learned  single
Judge dated 10.02.2009 does not  survive  for  consideration  rendering  the
appeal infructuous.  Against the said order,  the  appellant  has  preferred
this appeal by way of special leave.
5)    Heard learned senior counsel for the parties.
Rival submissions:
6)    Learned senior counsel for  the  appellant  submitted  that  when  the
rights of the parties had been crystallized and findings have been  rendered
in favour of the appellant herein and against the respondents and  the  same
have  been  confirmed,  the  Division  Bench  of  the  High  Court,  without
considering the  effect  thereon  on  the  rights  already  accrued  to  the
parties, could not have permitted withdrawal of the Notice of Motion at  the
instance of the original Defendant Nos. 4A, 4B and 5.  In  the  alternative,
it is  submitted  that  even  if  the  Division  Bench  could  have  allowed
withdrawal of the original application, it  had  no  occasion  or  cause  to
observe that on withdrawal of the original application,  the  order  of  the
learned single Judge dated 10.02.2009 could not  survive  for  consideration
which in effect amounts to allowing the appeal without making  any  comments
on the merits or otherwise on the order dated 10.02.2009.
7)    He further submitted that the Division  Bench  was  not  justified  in
granting liberty to the parties to the suit  to  apply  for  appointment  of
receiver in respect of subject property for sale  thereon  as  the  sale  in
favour of the appellant herein had been in execution of the  First  and  the
Second decree which can only be set  aside  on  an  appropriate  application
being made in accordance with the provisions of Order XXI of  the  Code  and
not otherwise.  Even if the suit was to be withdrawn that would not lead  to
setting aside of the sale in favour of the appellant herein unless  recourse
to appropriate proceedings in accordance with the provisions  of  Order  XXI
of the Code is made.
8)    Learned senior counsel for the appellant  relied  upon  the  following
decisions in support of his contention  viz.,  R.  Rathinavel  Chettiar  and
Another vs. V. Sivaraman and Others (1999) 4 SCC 89,  Sneh  Gupta  vs.  Devi
Sarup and Others (2009) 6 SCC 194 and Janatha Textiles and  Others  vs.  Tax
Recovery Officer and Another (2008) 12 SCC 582.
9)    Learned senior counsel for the respondents,  however,  submitted  that
as the order dated 10.02.2009 passed by the learned single Judge  was  on  a
Notice of Motion filed by Defendant Nos. 4A, 4B and 5, it  was  always  open
for the said defendants to withdraw the  Notice  of  Motion  in  the  appeal
itself and once the court has permitted the withdrawal of Notice of  Motion,
the order, if any, passed on the said Notice of Motion, does not survive.
Discussion:
10)   We have given our anxious consideration to the  various  pleas  raised
by learned senior counsel for the parties.  It is not in dispute  that  vide
order dated 04.08.1998 in Administration Suit No. 3706 of 1995, the  learned
single Judge had  restrained  the  defendants,  their  agents  and  servants
therein from creating any third party interest in or encumbering or  selling
or transferring  or  alienating  in  any  manner  whatsoever  amongst  other
properties the immovable property  situated  at  Chembur,  Ghatkoper,  Mahul
Road bearing Plot No. 66 admeasuring 502 sq. yards also.   When  the  matter
was taken up by way of special leave petition being No. 9168 of 2000  before
this Court, the parties had signed the consent terms and  vide  order  dated
11.12.2000, this Court had disposed of the special leave petition  in  terms
of the consent terms dated 11.12.2000.  However, the said order  was  passed
without prejudice to  the  parties  to  move  the  High  Court  for  probate
proceedings.
11)   The  learned  single  Judge  of  the  High  Court,  vide  order  dated
15.04.2004, had taken on record the minutes of the order and the  Notice  of
Motion was disposed of in terms  of  the  minutes  of  the  order.   In  the
minutes of the order, the  order  of  injunction  in  respect  of  immovable
property at Chembur was varied  to  the  limited  extent  so  as  to  enable
Defendant Nos. 1, 4 and 6 to take all  necessary  steps  to  sell  the  said
property on the terms and conditions mentioned in the minutes.   It  is  not
necessary to reproduce the minutes of the  order.   Suffice  it  to  mention
that in terms of the minutes, the appellant herein submitted its bid of  Rs.
20,15,00,000/- which was found to be the highest and  was  accepted  by  the
parties.  In the Notice of Motion being No. 21 of 2006  filed  by  Defendant
Nos. 4A, 4B and 5, the learned single Judge, vide  order  dated  10.02.2009,
had held that the offer made by the respondent therein who is the  appellant
before us stood accepted by all the parties to  the  suit.   While  allowing
the Notice of Motion, the learned single Judge gave  certain  directions  in
the operative part of the order dated 10.02.2009.  For ready reference,  the
directions given in the order dated 10.02.2009 passed by the learned  single
Judge are reproduced below:-
                                    “Order
(1). The respondents shall deposit  a  sum  of  Rs.  2,28,15000/-  with  the
Prothonotary & Senior Master, High Court, Bombay within one  week  from  the
date of signature on the detail order, who should forthwith invest the  said
amount in any nationalized Bank as fixed deposit.
(2).  The Advocate for the defendant Nos. 4A, 4B and 5 shall return the  Pay
Order  dated  5-8-2005  for  the  amount  of  R.2,28,15,000/-  back  to  the
respondents against the aforesaid deposit to be made by the respondents  for
cancellation of the same.
(3).  Within one week therefrom, the defendant Nos.  2,  4A,  4B,  5  and  6
shall handover the original title deeds  of  the  Chembur  property  to  the
Prothonotary and Senior Master, who shall keep the  same  in  safe  custody.
Within one week therefrom, the Court Receiver shall take  formal  possession
of the Chembur property and get it  vacated  from  the  defendants  and  any
party claiming through  them.  The  Receiver  shall  then  intimate  to  the
respondents about the vacant possession being available and within one  week
therefrom the respondents shall deposit the remaining consideration  of  Rs.
17,86,85,000/- with the court receiver High  Court,  Bombay.   In  case  the
amount is not deposited within  one  week  as  directed,  then  the  deposit
amount of Rs. 2,28,15,000/- shall stand forfeited and shall be  handed  over
to the credit of the suit.
(4).  In case the amount is deposited as directed above, the defendant  Nos.
2, 4A, 4B, 5 and 6 and Shri Sanjay Sawhney (the heir of  the  defendant  No.
8) shall execute register and duly  admit  the  execution  before  the  Sub-
Registrar of an irrevocable Power of  Attorney  in  the  format  annexed  at
Exhibit-12 to the affidavit in reply of the  respondents  dated  18-10-2007,
at the cost and expenses of the respondents. The Court Receiver  shall  then
handover the possession of the  Chembur  property  to  the  respondents  and
shall  also  handover  the  original  title   deeds   and   thereafter   the
Prothonotary & Senior Master shall handover the original title deeds to  the
respondents.
(5). In case the defendants above-mentioned fail to  execute  the  Power  of
Attorney, as aforesaid, then the Court Receiver shall execute the  same  and
register it at the costs and expenses of the respondents and further if  the
respondents want, they shall also execute the  deed  of  conveyance  at  the
costs of the respondents.
(6).  The respondents to  indemnify  and  keep  indemnified  the  defendants
against all actions, demands, claims, costs, charges and expenses by  reason
of any claim on account of any act or omission of the  Attorneys  under  the
Power of Attorney to be executed in their favour.
(7)  After  the  completion  of  the  aforesaid  sale  in  favour   of   the
respondents, the parties shall be entitled to  distribution  of  the  amount
and any one of them may apply to the Court for distribution of the  same  in
terms of the order of the Supreme Court dated 11-12-2000 and  the  order  of
this Court         dated 15-4-2004.
(8). The respondents shall pay to the Court Receiver the costs, charges  and
expenses of the Receiver to be worked out on the basis of  actuals  incurred
and estimated by the Court Receiver and not on the basis of  commission  and
the Court Receiver shall stand discharged without any further order of  this
Court.
(9).  In case of any difficulty,  liberty  to  the  party  to  approach  the
Court.  At  this  stage,  the  learned  senior  counsel  appearing  for  the
defendant Nos. 6 and 7 makes oral request for  stay  of  operation  of  this
order for a period of six weeks. Request granted. The effect  and  operation
of this order is stayed  for  a  period  of  six  weeks  from  the  date  of
signature on the detail order”.

12)   From a reading of the directions given by the learned single Judge  in
the operative portion of the order dated  10.02.2009  reproduced  above,  we
find that the learned single Judge had directed  the  appellant  herein  who
was the respondent before learned single Judge  to  deposit  a  sum  of  Rs.
2,28,15,000/- with the Prothonotary & Senior Master, High  Court  of  Bombay
within one week and the advocate for the Defendant Nos. 4A,  4B  and  5  was
directed to return the pay order dated 05.08.2005  for  the  amount  of  Rs.
2,28,15,000/-  back  to  the  respondents  therein  against  the   aforesaid
deposit.  The Defendant Nos. 2, 4A, 4B, 5 and 6  were  further  directed  to
handover the original title deeds of Chembur property to the Prothonotary  &
Senior Master, High Court of Bombay to be  kept  in  safe  custody  and  the
court receiver to take formal possession of the Chembur property within  one
week and get it vacated from the defendants therein and any  party  claiming
through  them.   After  intimation  to  the  respondents  about  the  vacant
possession being available, the respondent (appellant herein), was  required
to deposit the remaining consideration of Rs. 17,86,85,000/- with the  court
receiver.  In case the amount is not deposited within one week as  directed,
the deposit of Rs. 2,28,15,000/- would stand forfeited and was to be  handed
over to the credit of the suit.  It was further directed that  in  case  the
amount is deposited as directed, the Defendant Nos. 2, 4A, 4B, 5 and  6  and
heir of Defendant No. 8 shall allow the execution of  an  irrevocable  Power
of Attorney in the prescribed format before the  sub-Registrar.   The  court
receiver was then directed to  hand  over  the  possession  of  the  Chembur
property to the respondent and was also directed to  handover  the  original
title deeds to the respondent.  The conveyance deed was also directed to  be
executed at the cost of the respondent.
13)    The  order  dated  10.02.2009,  in  fact,  gave  certain   directions
regarding the sale of the immovable property at Chembur  in  favour  of  the
respondent therein  who  is  the  appellant  before  us.   The  order  dated
10.02.2009 was brought up in  appeal  by  some  of  the  defendants.   Those
defendants, who were appellants in Appeal No. 271 of 2009,  had  not  sought
for any withdrawal of appeal.  The question is as to whether Defendant  Nos.
4A, 4B and 5, on whose Notice of Motion No. 21  of  2006,  the  order  dated
10.02.2009 has been passed giving directions for confirmation  of  the  sale
and execution of the conveyance deed etc.,  of  the  immovable  property  at
Chembur in favour of the present appellant, can  be  permitted  to  withdraw
and the order  dated  10.02.2009  can  be  said  to  be  not  surviving  for
consideration.
14)   In the case of R. Rathnivel (supra), this  Court  has  considered  the
question as to whether at a stage  where  the  rights  of  the  parties  are
crystallized can be divested of the rights under the decree  simply  because
of withdrawal of the suit at the appellate stage or  not.   This  Court  has
held as follows:-
“12. What is essential is that the matter must have been finally decided  so
that it becomes conclusive as between the parties to the suit in respect  of
the subject-matter of the suit with reference to which relief is sought.  It
is at this stage that the rights of the parties are crystallised and  unless
the decree is reversed, recalled, modified or set aside, the parties  cannot
be divested of their rights  under  the  decree.  Now,  the  decree  can  be
recalled, reversed or set aside either by the court which had passed  it  as
in review, or by the appellate or  revisional  court.  Since  withdrawal  of
suit  at  the  appellate  stage,  if  allowed,  would  have  the  effect  of
destroying or nullifying the decree affecting thereby rights of the  parties
which came to be vested under the decree, it cannot be allowed as  a  matter
of course but has to be allowed rarely only when a strong case is made  out.
It is for this reason that the proceedings either in appeal or  in  revision
have to be allowed to have a full trial on merits.”


This Court after referring to the various decisions of the High Courts  have
come to the conclusion that where a decree passed  by  the  trial  Court  is
challenged in appeal, it would not be open to the plaintiff, at that  stage,
to withdraw the suit so as to destroy that decree.  In para 22,  this  court
held as under:-

“22. In view of the above discussion, it  comes  out  that  where  a  decree
passed by the trial court is challenged in appeal, it would not be  open  to
the plaintiff, at that stage, to withdraw the suit so  as  to  destroy  that
decree. The rights which have come to be vested in the parties to  the  suit
under the decree cannot be taken away by withdrawal  of  the  suit  at  that
stage unless very strong reasons are shown that  the  withdrawal  would  not
affect or prejudice anybody’s vested rights. The impugned  judgment  of  the
High  Court  in  which  a  contrary  view  has  been  expressed  cannot   be
sustained.”

15)   In Janatha Textiles (supra),  this  Court  has  held  that  it  is  an
established principle of law  that  in  a  third  party  auction-purchaser’s
interest   in   the   auctioned   property   continues   to   be   protected
notwithstanding that the underlying decree  is  subsequently  set  aside  or
otherwise.
16)   In Sneh Gupta (supra), this Court has held that a right to withdraw  a
suit in the suitor would be unqualified, if no right has been vested in  any
other party.
Conclusion:
17)   Applying the principles given in the aforementioned decisions  to  the
facts of the present case, we find that in the order dated  10.02.2009,  the
learned single Judge while allowing the Notice of Motion No. 21 of 2006  had
held that the highest  offer  made  by  the  respondent  therein  (appellant
before us) stood accepted by all the parties  to  the  suit  and  thereafter
passed certain directions to  deposit  the  bid  amount,  execution  of  the
conveyance deed etc.  Thus a vested right has been created in favour of  the
respondent therein, that is, the present appellant and that  cannot  be  set
at naught simply by permitting the Defendant Nos. 4A, 4B and 5  to  withdraw
the Notice of Motion filed by them.   It  was  for  the  Division  Bench  to
decide the appeal on merits instead of  permitting  the  withdrawal  of  the
Notice of Motion and observing that the order of the  learned  single  Judge
passed on that Motion dated 10.02.2009 does not survive  for  consideration.


18)   In view of  the  foregoing  discussion,  the  order  dated  01.03.2012
passed by the High Court of Bombay under appeal cannot be sustained  and  is
hereby set aside.  The High Court is directed to decide  the  appeal  afresh
on merits in accordance with law.  The appeal is hereby allowed.

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



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

NEW DELHI;
OCTOBER 8, 2015.
ITEM NO.1A               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. 8397 of 2015
          (Arising from Special Leave Petition (C)  No. 10721/2012

AVENUE SUPERMARTS PVT. LTD.                        Petitioner(s)

                                VERSUS

NISCHINT BHALLA & ORS.                             Respondent(s)

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

For Petitioner(s)      Mr. E. C. Agrawala, AOR

For Respondent(s)      Ms. Anushree Menon, Adv.
                       Mr. Vikas Mehta, AOR

                       Mr. Puneet Singh Bindra, Adv.
                       Mr. Aslam Ahmed, Adv.
                       Mr. Gagan Gupta, 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 allowed in terms of the signed  reportable  judgment  as
follows:
      “In view of the foregoing  discussion,  the  order  dated   01.03.2012
passed by the High Court of Bombay under     appeal cannot be sustained  and
is hereby set aside.  The   High Court is  directed  to  decide  the  appeal
afresh  on    merits  in  accordance  with  law.   The  appeal   is   hereby
allowed.”

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