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)
