REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 821-825 OF 2009
Vasant Balu Patil & Ors. ... Appellant (s)
Versus
Mohan Hirachand Shah & Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
The plaintiffs’ suits (Nos. 124 of 1982 and 125 of 1982) for declaration of
title and injunction were dismissed by the learned trial court. In first
appeal, the learned District Judge reversed the decree of dismissal and
decided the suits in favour of the plaintiffs. The said decree has been
affirmed in second appeal by the Bombay High Court. Aggrieved the present
appeals have been filed by the defendants in the two suits.
Insofar as recital of the relevant facts is concerned it will suffice to
notice that the plaintiffs’ suits were initially for injunction against one
Essar Construction Company (Suit No.125 of 1982) and one Ardeshir B.
Kurshetji & Sons Pvt. Ltd. (Suit No.124 of 1982) who were raising certain
constructions on the suit land of which the plaintiffs claimed to be
owners. Initially the present appellants/defendants were not parties to
the said suits. However, subsequently they were impleaded as defendants
as, according to the plaintiffs, they were informed by the construction
companies that they were authorised to raise the constructions on the suit
land by the villagers of Mandva Village who claimed to be owners of the
land. The appellants/defendants who were so impleaded and proceeded against
in a representative capacity filed their written statement in the suits
denying the title of the plaintiffs. The plaintiffs asserted their title,
specifically by seeking the additional relief of declaration of title which
was allowed to be brought on record by permitting an amendment of the suits
insofar as the relief(s) claimed is concerned.
3. The basis of the claim of the plaintiffs date to the year 1916 when
the suit land measuring 14.5 acres was recorded in the name of one Amarsi
Gujjar, the grandfather of the present respondent-plaintiffs. It is the
case of the plaintiffs that upon demise of Amarsi Gujjar in the year 1926,
the property devolved by survivorship on Hirachand Gujjar, the father of
the plaintiffs and on his demise in the year 1971 the same devolved upon
the plaintiffs.
4. The appellant-defendants, on being impleaded in the suits, filed
written statements contending, inter alia, that the mutation entry of the
year 1916 showed Amarsi Gujjar as the holder of the land on behalf of the
villagers. He was described as a Vahiwatadar of the villagers. Similarly,
the mutation entry of the year 1927 following the death of Amarsi Gujjar
also recorded Hirachand Gujjar as a Vahiwatadar and the land was shown as
being held on behalf of the villagers. The above is the core of the claim
of the respective parties on the basis of which certain supplemental pleas
have also been raised which will be noticed as we proceed to delve further
into the matter.
5. The learned trial court, as already noticed, dismissed the suits of
the plaintiffs. This was primarily on the basis that the mutation entries
of the years 1916 and 1927, which formed the foundation of the claims of
the parties, indicated that the land was held by Amarsi Gujjar and
thereafter by Hirachand Gujjar on behalf of the villagers. What would be
particularly relevant to be noticed, at this stage, out of the huge
multitude of facts that confronts the Court is that there was a parallel
revenue proceeding wherein the issue was one pertaining to the correctness
of the aforesaid two mutation entries. The said proceedings culminated in
an order of the State Government dated 06.01.1993 passed in exercise of its
revisional powers holding that the mutation entries of 1916 and
consequently the entries of the year 1927 were extremely doubtful in view
of certain interpolations or overwritings in the said mutation entries.
Accordingly, the mutation entries were declared to be without any legal
effect. The said order was challenged by the appellant in a writ petition
which was heard and decided along with the second appeal in question. The
order passed by the High Court in the civil writ petition has also been
challenged before us in the present appeals.
6. In deciding the civil proceedings arising out of the suits in
question, the first appellate court and the High Court disagreed with the
learned trial court and overturned the findings of the learned trial court
on all the issues. It is the very same pleas raised before the forums
below on the issues arising for determination, that are being resurrected
in the present appeals, to contend that the conclusion of the first
appellate court and the High Court are wholly untenable requiring the
interference of this Court in the exercise of its jurisdiction under
Article 136 of the Constitution.
7. It is in the above conspectus of facts that a brief resume of the
contentions advanced on behalf of the parties would be necessary not only
to recapitulate the issues arising for determination in the present appeals
but also to take note of what was urged before the forums below and the
reasons for the conclusions reached and the views expressed by the said
forums which have culminated in the present appeal.
8. At the outset, Shri Vinay Navare, learned counsel for the appellants
has contended that against the findings of the revisional authority in the
revenue proceedings (order dated 6.1.1993) a writ petition bearing No. 5893
of 1993 was filed before the High Court which was answered by the very same
impugned order by holding that as the question of title has been raised in
the suit and found in favour of the plaintiffs it will not be necessary to
separately adjudicate the correctness of the findings reached in the
revenue proceedings. Shri Navare has urged that neither the first appellate
court nor the High Court had dealt with the legality of the mutation
entries in question. Consequently no specific finding in this regard was
recorded. In fact, the courts below concluded the issue in favour of the
plaintiffs merely on the basis of the findings of the revenue authorities.
Once the mutation entries of 1916 and 1927 were so adjudged, another vital
document which established the title of the defendants i.e. Khata No.47
which recorded the name of the villagers against the suit land came to be
decided against the defendants, consequentially, in a similar manner. It
has been further urged on behalf of the appellants that the materials on
record had amply demonstrated that all other land belonging to Amarsi
Gujjar in his personal capacity were transferred in the name of his three
sons Hirachand, Tapidas and Vittaldas. The mutation entries in respect of
such land do not include the suit land which fact would go to show that the
suit land was not the personal property inherited by the legal heirs of the
original owner, Amarsi Gujjar but was held by the said person on behalf of
the villagers. It is additionally urged that some part of the suit land
was acquired by the Government under the Land Acquisition Act and the
materials on record indicate that possession of such land was handed over
by Hirachand Gujjar on behalf of the villagers and compensation for such
acquisition was received by Hirachand Gujjar alongwith two other villagers,
namely, Nathram and Chaya Nakhawa.
9. It is further urged that the plaintiffs’ suits was barred by
limitation inasmuch as though the defendants had disputed the title of the
plaintiffs to the suit land in the written statement filed in the year
1985, the plaintiffs had by an amendment of the suits prayed for addition
of the relief of declaration of title. The said amendment was allowed by
the learned trial court on 16.07.1995. The amended relief sought and
granted, therefore, is clearly barred under the provisions of the
Limitation Act, it is urged.
10. Finally, it is contended that though voluminous documents were
introduced in evidence on behalf of the plaintiffs to prove their title,
none of the exhibited documents had a relevant bearing to the survey
numbers covering the suit lands except Survey No.43. It is, therefore,
contended that the findings of the learned courts below regarding title of
the plaintiffs is plainly untenable in law.
11. The aforesaid arguments on behalf of the appellants have been
countered by Shri Jay Savla learned counsel for the respondents by
contending that the legitimacy of the mutation entries on the basis of
which, primarily, the suit was dismissed by the learned trial court has
been conclusively decided in the revenue proceedings holding the same to be
highly suspicious in view of the interpolations and the over writings
therein. The said facts and findings recorded thereon were noticed in the
course of the adjudication of the suits and were accepted by the learned
courts below. The same are essentially findings of fact. If the mutation
entry of 1916 which was the foundation of the claim of the parties is
suspect, as has been held by the learned courts below, the claim of the
plaintiffs to ownership is established and the substratum of the
defendants’ claim, including the claim of title on the basis of khata No.47
and payment of revenue in respect of the land covered by the said khata No.
47 (allegedly the suit land) will necessarily fall through. It is urged
that the materials on record and the documents relied upon do not
conclusively prove that compensation was received by Hirachand Gujjar on
behalf of the villagers. In any case, the said issue would also stand
concluded by the findings recorded in respect of the legitimacy of the
original mutation entries. So far as the plea of limitation is concerned,
it is urged that the order allowing the amendment of the suits to bring on
record the additional relief of declaration of title has gone unchallenged
and has attained finality in law. Therefore, the issue with regard to
limitation issue necessarily had to be decided in favour of the plaintiffs
inasmuch as the said amendment(s) would relate back to the date of filing
of the suits. Reliance in this behalf has been placed on a judgment of this
Court in Siddalingamma & Anr. vs. Mamtha Shenoy[1].
12. We have considered the submissions advanced on behalf of the
parties. While there can be no manner of doubt that mutation entries do
not conclusively establish title, we remain unimpressed by the arguments
and contentions advanced on behalf of the appellants that the title of the
plaintiffs in the instant case was found in their favour merely on the
basis of the mutation entries in question. The suit scheduled property as
described in the plaints filed in both the suits show that the suit land
measuring 2 hectares 70 ares is covered by survey No.43, 49, 49A/1 and 54
which corresponds to new survey nos. 262, 214, 214A/1, 214B. The materials
on record indicate that the title of the plaintiffs to land covered by
survey No.43 stands established by Exh.63 whereas land covered by survey
No.49 and 54 stands proved by Exh.154 and 158. It is the aforesaid survey
numbers which are mentioned against the mutation entries of 1916 as well as
the mutation entries of the year 1927. Coupled with the above, if the entry
with regard to the land being held on behalf of the villagers as made in
the mutation records are to be ignored, on account of the findings recorded
in the order of the revenue authority dated 6.1.1993, which findings have
been finally approved in the appeal proceedings arising out of the suits as
being findings of fact recorded on the basis of the evidence on record,
there can be no difficulty in holding that the title of the plaintiffs to
the suit land covered by the survey Nos. indicated above stands proved and
established. The entries in khata No.47 would also have to be understood
with reference to the conclusions as above. Insofar as the land
acquisition proceedings are concerned there is no conclusive material to
hold that the payment of compensation was received by Hirachand Gujjar on
behalf of the villagers so as to belie the case of the plaintiffs and/or
establish the title of the defendants. The plea of the defendants that the
voluminous documents brought on record do not establish the title of the
plaintiffs has already been dealt with in the context of the specific
exhibits which are relatable to the survey Nos. relevant to the suit land.
So far as the plea of limitation is concerned there can be no manner of
doubt that the amendment of the plaint(s) to incorporate the relief of
declaration of title has necessarily to relate back to the date of filing
of the suit. Once the said amendments were allowed and were not challenged
by the defendants, the issue with regard to limitation has to be decided in
favour of the plaintiffs.
13. For the aforesaid reasons we do not find any merit in the case of the
appellants as laid before us on the grounds and contentions as noticed. The
appeals therefore will have to fail and are accordingly dismissed. However
in the facts and circumstances of the case we make no order as to costs.
...……..……......................J.
(RANJAN GOGOI)
….……..…….....................J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.
-----------------------
[1] 2001 (8) SCC 561.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 821-825 OF 2009
Vasant Balu Patil & Ors. ... Appellant (s)
Versus
Mohan Hirachand Shah & Ors. ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
The plaintiffs’ suits (Nos. 124 of 1982 and 125 of 1982) for declaration of
title and injunction were dismissed by the learned trial court. In first
appeal, the learned District Judge reversed the decree of dismissal and
decided the suits in favour of the plaintiffs. The said decree has been
affirmed in second appeal by the Bombay High Court. Aggrieved the present
appeals have been filed by the defendants in the two suits.
Insofar as recital of the relevant facts is concerned it will suffice to
notice that the plaintiffs’ suits were initially for injunction against one
Essar Construction Company (Suit No.125 of 1982) and one Ardeshir B.
Kurshetji & Sons Pvt. Ltd. (Suit No.124 of 1982) who were raising certain
constructions on the suit land of which the plaintiffs claimed to be
owners. Initially the present appellants/defendants were not parties to
the said suits. However, subsequently they were impleaded as defendants
as, according to the plaintiffs, they were informed by the construction
companies that they were authorised to raise the constructions on the suit
land by the villagers of Mandva Village who claimed to be owners of the
land. The appellants/defendants who were so impleaded and proceeded against
in a representative capacity filed their written statement in the suits
denying the title of the plaintiffs. The plaintiffs asserted their title,
specifically by seeking the additional relief of declaration of title which
was allowed to be brought on record by permitting an amendment of the suits
insofar as the relief(s) claimed is concerned.
3. The basis of the claim of the plaintiffs date to the year 1916 when
the suit land measuring 14.5 acres was recorded in the name of one Amarsi
Gujjar, the grandfather of the present respondent-plaintiffs. It is the
case of the plaintiffs that upon demise of Amarsi Gujjar in the year 1926,
the property devolved by survivorship on Hirachand Gujjar, the father of
the plaintiffs and on his demise in the year 1971 the same devolved upon
the plaintiffs.
4. The appellant-defendants, on being impleaded in the suits, filed
written statements contending, inter alia, that the mutation entry of the
year 1916 showed Amarsi Gujjar as the holder of the land on behalf of the
villagers. He was described as a Vahiwatadar of the villagers. Similarly,
the mutation entry of the year 1927 following the death of Amarsi Gujjar
also recorded Hirachand Gujjar as a Vahiwatadar and the land was shown as
being held on behalf of the villagers. The above is the core of the claim
of the respective parties on the basis of which certain supplemental pleas
have also been raised which will be noticed as we proceed to delve further
into the matter.
5. The learned trial court, as already noticed, dismissed the suits of
the plaintiffs. This was primarily on the basis that the mutation entries
of the years 1916 and 1927, which formed the foundation of the claims of
the parties, indicated that the land was held by Amarsi Gujjar and
thereafter by Hirachand Gujjar on behalf of the villagers. What would be
particularly relevant to be noticed, at this stage, out of the huge
multitude of facts that confronts the Court is that there was a parallel
revenue proceeding wherein the issue was one pertaining to the correctness
of the aforesaid two mutation entries. The said proceedings culminated in
an order of the State Government dated 06.01.1993 passed in exercise of its
revisional powers holding that the mutation entries of 1916 and
consequently the entries of the year 1927 were extremely doubtful in view
of certain interpolations or overwritings in the said mutation entries.
Accordingly, the mutation entries were declared to be without any legal
effect. The said order was challenged by the appellant in a writ petition
which was heard and decided along with the second appeal in question. The
order passed by the High Court in the civil writ petition has also been
challenged before us in the present appeals.
6. In deciding the civil proceedings arising out of the suits in
question, the first appellate court and the High Court disagreed with the
learned trial court and overturned the findings of the learned trial court
on all the issues. It is the very same pleas raised before the forums
below on the issues arising for determination, that are being resurrected
in the present appeals, to contend that the conclusion of the first
appellate court and the High Court are wholly untenable requiring the
interference of this Court in the exercise of its jurisdiction under
Article 136 of the Constitution.
7. It is in the above conspectus of facts that a brief resume of the
contentions advanced on behalf of the parties would be necessary not only
to recapitulate the issues arising for determination in the present appeals
but also to take note of what was urged before the forums below and the
reasons for the conclusions reached and the views expressed by the said
forums which have culminated in the present appeal.
8. At the outset, Shri Vinay Navare, learned counsel for the appellants
has contended that against the findings of the revisional authority in the
revenue proceedings (order dated 6.1.1993) a writ petition bearing No. 5893
of 1993 was filed before the High Court which was answered by the very same
impugned order by holding that as the question of title has been raised in
the suit and found in favour of the plaintiffs it will not be necessary to
separately adjudicate the correctness of the findings reached in the
revenue proceedings. Shri Navare has urged that neither the first appellate
court nor the High Court had dealt with the legality of the mutation
entries in question. Consequently no specific finding in this regard was
recorded. In fact, the courts below concluded the issue in favour of the
plaintiffs merely on the basis of the findings of the revenue authorities.
Once the mutation entries of 1916 and 1927 were so adjudged, another vital
document which established the title of the defendants i.e. Khata No.47
which recorded the name of the villagers against the suit land came to be
decided against the defendants, consequentially, in a similar manner. It
has been further urged on behalf of the appellants that the materials on
record had amply demonstrated that all other land belonging to Amarsi
Gujjar in his personal capacity were transferred in the name of his three
sons Hirachand, Tapidas and Vittaldas. The mutation entries in respect of
such land do not include the suit land which fact would go to show that the
suit land was not the personal property inherited by the legal heirs of the
original owner, Amarsi Gujjar but was held by the said person on behalf of
the villagers. It is additionally urged that some part of the suit land
was acquired by the Government under the Land Acquisition Act and the
materials on record indicate that possession of such land was handed over
by Hirachand Gujjar on behalf of the villagers and compensation for such
acquisition was received by Hirachand Gujjar alongwith two other villagers,
namely, Nathram and Chaya Nakhawa.
9. It is further urged that the plaintiffs’ suits was barred by
limitation inasmuch as though the defendants had disputed the title of the
plaintiffs to the suit land in the written statement filed in the year
1985, the plaintiffs had by an amendment of the suits prayed for addition
of the relief of declaration of title. The said amendment was allowed by
the learned trial court on 16.07.1995. The amended relief sought and
granted, therefore, is clearly barred under the provisions of the
Limitation Act, it is urged.
10. Finally, it is contended that though voluminous documents were
introduced in evidence on behalf of the plaintiffs to prove their title,
none of the exhibited documents had a relevant bearing to the survey
numbers covering the suit lands except Survey No.43. It is, therefore,
contended that the findings of the learned courts below regarding title of
the plaintiffs is plainly untenable in law.
11. The aforesaid arguments on behalf of the appellants have been
countered by Shri Jay Savla learned counsel for the respondents by
contending that the legitimacy of the mutation entries on the basis of
which, primarily, the suit was dismissed by the learned trial court has
been conclusively decided in the revenue proceedings holding the same to be
highly suspicious in view of the interpolations and the over writings
therein. The said facts and findings recorded thereon were noticed in the
course of the adjudication of the suits and were accepted by the learned
courts below. The same are essentially findings of fact. If the mutation
entry of 1916 which was the foundation of the claim of the parties is
suspect, as has been held by the learned courts below, the claim of the
plaintiffs to ownership is established and the substratum of the
defendants’ claim, including the claim of title on the basis of khata No.47
and payment of revenue in respect of the land covered by the said khata No.
47 (allegedly the suit land) will necessarily fall through. It is urged
that the materials on record and the documents relied upon do not
conclusively prove that compensation was received by Hirachand Gujjar on
behalf of the villagers. In any case, the said issue would also stand
concluded by the findings recorded in respect of the legitimacy of the
original mutation entries. So far as the plea of limitation is concerned,
it is urged that the order allowing the amendment of the suits to bring on
record the additional relief of declaration of title has gone unchallenged
and has attained finality in law. Therefore, the issue with regard to
limitation issue necessarily had to be decided in favour of the plaintiffs
inasmuch as the said amendment(s) would relate back to the date of filing
of the suits. Reliance in this behalf has been placed on a judgment of this
Court in Siddalingamma & Anr. vs. Mamtha Shenoy[1].
12. We have considered the submissions advanced on behalf of the
parties. While there can be no manner of doubt that mutation entries do
not conclusively establish title, we remain unimpressed by the arguments
and contentions advanced on behalf of the appellants that the title of the
plaintiffs in the instant case was found in their favour merely on the
basis of the mutation entries in question. The suit scheduled property as
described in the plaints filed in both the suits show that the suit land
measuring 2 hectares 70 ares is covered by survey No.43, 49, 49A/1 and 54
which corresponds to new survey nos. 262, 214, 214A/1, 214B. The materials
on record indicate that the title of the plaintiffs to land covered by
survey No.43 stands established by Exh.63 whereas land covered by survey
No.49 and 54 stands proved by Exh.154 and 158. It is the aforesaid survey
numbers which are mentioned against the mutation entries of 1916 as well as
the mutation entries of the year 1927. Coupled with the above, if the entry
with regard to the land being held on behalf of the villagers as made in
the mutation records are to be ignored, on account of the findings recorded
in the order of the revenue authority dated 6.1.1993, which findings have
been finally approved in the appeal proceedings arising out of the suits as
being findings of fact recorded on the basis of the evidence on record,
there can be no difficulty in holding that the title of the plaintiffs to
the suit land covered by the survey Nos. indicated above stands proved and
established. The entries in khata No.47 would also have to be understood
with reference to the conclusions as above. Insofar as the land
acquisition proceedings are concerned there is no conclusive material to
hold that the payment of compensation was received by Hirachand Gujjar on
behalf of the villagers so as to belie the case of the plaintiffs and/or
establish the title of the defendants. The plea of the defendants that the
voluminous documents brought on record do not establish the title of the
plaintiffs has already been dealt with in the context of the specific
exhibits which are relatable to the survey Nos. relevant to the suit land.
So far as the plea of limitation is concerned there can be no manner of
doubt that the amendment of the plaint(s) to incorporate the relief of
declaration of title has necessarily to relate back to the date of filing
of the suit. Once the said amendments were allowed and were not challenged
by the defendants, the issue with regard to limitation has to be decided in
favour of the plaintiffs.
13. For the aforesaid reasons we do not find any merit in the case of the
appellants as laid before us on the grounds and contentions as noticed. The
appeals therefore will have to fail and are accordingly dismissed. However
in the facts and circumstances of the case we make no order as to costs.
...……..……......................J.
(RANJAN GOGOI)
….……..…….....................J.
(N.V. RAMANA)
NEW DELHI
OCTOBER 9, 2015.
-----------------------
[1] 2001 (8) SCC 561.
