VASANT BALU PATIL Vs MOHAN HARACHAND SHAH .
Bench: RANJAN GOGOI,N.V. RAMANA
Case number: C.A. No.-000821-000825 / 2009
Diary number: 29354 / 2008
Advocates: ABHA R. SHARMA Vs
JAY SAVLA
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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.
1. 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.
2. Insofar as recital of the relevant facts is concerned it will
suffice to notice that the plaintiffs’ suits were initially for
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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
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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
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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
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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
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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
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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
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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
overwritings 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
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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 Shenoy1.
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 1 2001 (8) SCC 561.
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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
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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
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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.