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        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)

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.

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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  

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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  

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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.   

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(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.

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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  

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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  

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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  

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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  

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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  

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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.

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(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  

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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  

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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,  

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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  

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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  

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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.  

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

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

NARAYAN LAXMAN PATIL                               Petitioner(s)                                 VERSUS M/S GALA CONSTRUCTION CO.P.LTD.& ORS.              Respondent(s)

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

For Petitioner(s) Ms. Abha R. Sharma, AOR                       For Respondent(s) Mr. R. N. Keshwani, AOR                   Mr. E. C. Agrawala, AOR                       

Hon'ble Mr. Justice R.K. Agrawal pronounced the reportable  judgment of the Bench comprising Hon'ble Mr. Justice Ranjan Gogoi  and His Lordship.  

Leave granted. The appeal is dismissed  in  terms of the signed reportable  

judgment.  

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master

(Signed reportable judgment is placed on the file)  

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