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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  8605  OF 2013

MUNICIPAL CORPORATION, GWALIOR     … APPELLANT

VERSUS

PURAN SINGH ALIAS PURAN CHAND  & ORS.    … RESPONDENTS

J U D G M E N T  

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment and decree  

dated 15th April,  1998 passed by the High  Court  of Madhya  

Pradesh, Jabalpur, Bench at Gwalior in Civil First Appeal No.1  

of 1995. By the impugned judgment and decree the High Court  

allowed the appeal, preferred by plaintiffs-respondents, set  

aside the judgment and decree passed by the Trial Court and  

decreed the suit of plaintiffs-respondents.

2. The factual matrix of the case is as follows:

The  respondents  were  plaintiffs  and  the  appellant-  

Municipal  Corporation,  Gwalior  was  a  defendant  in  the  

original suit. The Original Civil Suit No.44-A/1985 was filed  

by plaintiff-respondents against the defendant- the Municipal  

Corporation,  Gwalior  seeking  declaration  that  land  bearing  

Original Survey No.486/19 (old) (New Survey No.619) measuring  

1 Bigha  is owned and possessed by them. They also sought for  

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permanent injunction against the defendant on the ground that  

Municipal  authorities  tried  to  interfere   with  their  

possession   by  dismantling  the  fencing  standing  on  their  

land.

3.  The case of the plaintiffs was that their ancestors were  

the owners of the suit land. One Ram Nath was the original  

tenure-holder (Mool Krishak) and thereafter they became joint  

Bhumiswami.  They claimed  to be in possession on the ground  

that  they  constructed  fencing,  Hauda  (pond)  and  Latrine  

(toilet) on the suit land.

4. By way of an amendment of paragraph 2 of the plaint the  

plaintiffs had shown their pedigree.

5. Defendant  –  Municipal  Corporation  filed  a  written  

statement, denied the allegations and asserted that the suit  

land is an  open piece of land belonging to the Corporation  

and is in its possession. It is reserved for developing park  

and is used as a parking place and a sign Board to this effect  

is placed at the spot and the fencing by wire too has been  

done  by  Municipal  Corporation.  It  was  alleged  that  the  

plaintiffs manipulated Khasara entries by committing  fraud to  

include their names.

6. The Trial Court on the basis of the pleadings of the  

parties framed the following issues :-

“1. Whether the plaintiffs are Bhumiswamis of the  disputed land?

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2. Whether the Court fee paid by the plaintiffs  is insufficient?

3. Whether the defendants can get Rs.3000/- as  compensatory cost?

4. Whether  the  disputed  land  belongs  to  the  defendant No.2 being Nazul land?

5. Whether the defendant can get Rs. 5,000/- as  compensatory cost?

6. (a) Whether the disputed  land  belongs to  the  Nazul department?

(b) If  so,  whether  the  land  being  open  belongs to the Municipal Corporation and the  same is not owned by the plaintiffs?

7. Reliefs and costs.”   

7. On hearing the counsel for the parties and on considering  

the  entire  evidence,  by  judgment  and  decree  dated  29th  

September, 1994, the Trial Court dismissed the suit and held  

as follows:-

“Issues 1,4 6(a) and 6(b):

In absence of notice under Section 401 of the M.P.  Municipality  Act,  1956  the  suit  is  not  maintainable. The plaintiffs are not the owners of  the disputed land and the disputed land is the  property  within  the  continued  ownership  and  possession and management of the Municipality. Issue No.2:      

The Court fee paid is sufficient.

Issue No.3 and 5:

Even though the suit of the plaintiffs failed but  the defendants are not entitled to get the special  damages.

Issue No.7:

On the basis of above findings the suit of the  plaintiffs for all the said reliefs is liable to  be dismissed with costs.”

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8. Against  the  Trial  Court's  decision,  the  plaintiffs-

respondents preferred a Civil First Appeal No.1 of 1995 in the  

High  Court.  After  hearing  the  parties,  the  High  Court  by  

impugned  judgment  allowed  the  appeal  and  set  aside  the  

judgment  passed  by  the  Trial  Court  with  the  following  

observation:

“38. That  is the position in this case as well,  when  the  respondents-defendants  did  not  produce  property register to show that this property was  ever  recorded  as  property  of  the  Municipal  Corporation. At one stage it was recorded as Nazul  land belonging to the State when the area had not  come within the municipal limits. When the area  came within the municipal limits it was mentioned  to be Behatnam (under management) of the Municipal  Corporation. But the possession and title of the  plaintiffs  has  been  recorded  throughout  even  thereafter and to have established Abadi over this  land,  and  therefore,  the  defendants-respondents  could not object to the title and possession of  the  plaintiffs  and  the  suit  for  declaration  of  title and injunction ought to have been decreed.”

9. Aggrieved  appellant  preferred  a  Letters  Patent  Appeal  

under Clause 10 of the Letters Patent Appeal Rules before the  

Division Bench of High Court.  The LPA No. 150 of 1998 was  

admitted and the order of stay was passed by the High Court.  

Subsequently, in the light of  a Constitution Bench decision  

in Jamshed N. Guzdar vs. State of Maharashtra & Ors., (2005) 2  

SCC  591,   the  Letters  Patent  Appeal  was  dismissed  on  17th  

August, 2005 as not maintainable.

10. Learned  counsel  for  the  defendant-appellant  made  the  

following submissions:

(a) The High Court committed a grave and manifest  

error  of  law  in  reversing  the  well  reasoned  

judgment and decree passed by the Trial Court.

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(b) The High Court has failed to consider that as  

there  is  no  prior  service  of  notice  before  

institution of the suit either under Section 80 of  

C.P.C. or under Section 401 of the M.P. Municipal  

Corporation Act, 1956, therefore,  suit was not  

maintainable and as such it was rightly dismissed  

by the Trial Court.

(c) The High Court has gravely erred in decreeing  

the suit  without properly considering the oral  

evidence led by the plaintiffs and on the contrary  

the  plaintiffs  witnesses  admitted  in  their  

evidence  that  in  Khasaras  the  Municipality  is  

recorded as owner and even in some Khasaras the  

plaintiffs are recorded as tresspassers.

11. On the other hand, according to learned counsel for the  

plaintiffs-respondents,  the  First  Appellate  Court  rightly  

decreed  the  suit  as  predecessors-in-interest  of  plaintiffs  

were recorded to be in possession of the land.

12. After giving our careful consideration to the facts and  

circumstances   of  the  case,  evidence  on  record  and  the  

submission made by the learned counsel for the parties, we  

find ourselves in complete agreement with the submission made  

on behalf of the defendant-appellant  and the judgment and  

decree passed by the Trial Court.  

13. The plaintiffs-respondents claimed ownership, title and  

possession over the land.  They are supposed to plead the fact  

and prove their case by placing evidence.  The plaintiffs have  

shown  their  possession  in  the  capacity  of  “Pukhta Maurusi  

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Kashtakar”  and  that  the  land  was  meant  for  agriculture  

purposes.

14. Further the case of the plaintiffs was that there was no  

partition between them and the land continued to be joint  

family property (“Shamil Shareek”). The plaintiffs have given  

the detail of their predecessor-in-title as under:

“Table of Puran Singh, Plaintiff No.1:

Chhutti Ram, widow Manko ↓

Mishrilal ↓

Puran Singh (adopted son)

Table of Shyam Babu, Plaintiff No.2:

Reoti Prasad, widow Rajwati ↓

Bhagwati alias Bhagwati Prasad ↓

Shyam Babu”

Table of Har Narain;

Mangal Singh ↓

Gopi Ram ↓

Harnarain

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15. Referring to the  tables  of the predecessor-of-interest,  

the Trial Court doubted the joint-ownership of the family  

and rejected the claim of the plaintiffs in view of the  

following facts:

16. Plaintiff no. 1, Puran Chand belongs to Shiva Hare Caste  

whereas  plaintiff  No.  2,  Sham  Babu,  is  a  ‘Kayastha’  

(Shrivastava). Harinarain is a Thakur.  The plaintiff has not  

made  clear  how  they  claim  joint  ownership  and  joint  

possession  of  the  land  if  they  belong  to  three  different  

castes. Neither any pleadings were made nor any evidence was  

placed by the plaintiff to show how the land in dispute came  

under their ownership and when they have taken possession of  

the land.  

17. The High Court gravely erred in law as well as on facts  

in connecting Ram Nath with the plaintiffs-respondents even  

though they have utterly failed to prove any connection with  

him and the pleadings are lacking regarding their particulars  

and even their names do not appear in Ext.P.11.

18. It is settled that for joint possession and ownership  

over  any  property, firstly  the  plaintiffs  are  required  to  

plead the same and the said fact should be reflected in the  

plaint itself.  There is a concept of joint family amongst the  

Hindus but that is required to be pleaded and proved. As the  

ancestors of the plaintiffs do not belong to one family, but  

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three  different  family  having  three  different  castes,  the  

joint possession of the plaintiff cannot be accepted.   The  

High Court failed to notice the aforesaid fact while allowing  

the appeal of the plaintiffs.

19. Smt. Chandra Kala widow of Shyam Babu (PW-1) and Puran  

Singh (PW-2) stated that they are joint owners and are in  

joint  possession  based  on  revenue  records.  The  names  of  

Mishrilal, Gopilal and Shyam Babu were shown.  However, the  

name  of  ancestors  of  Plaintiff  No.2,  Shyam  Babu  is  not  

recorded,  but  the  name  of  Shyam  Babu  himself  is  recorded  

therein. In the original plaint,  it was not pleaded as to  

how Shyam Babu  along with Mishri Lal and Gopiram were in  

joint possession over the land in dispute. In this background,  

we hold that the Trial Court rightly held that the plaintiffs  

failed  to  give  necessary  details  of  their   origin  and  

ownership rights.  

20. The High Court has failed to appreciate that there was no  

document  of  title/ownership  on  record  placed  by  the  

plaintiffs-respondents  and  there  are  no  pleadings  in  this  

regard as such no finding of title or ownership can be given  

in favour of plaintiff-respondents.

21. The evidence of Chander Kala PW-1 and other evidence on  

record including map were enclosed in the plaint. Nothing was  

shown to suggest that Shyam Babu was in actual possession of  

the land in the plaint or in the map and no pleading as the  

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existence of a pataur, toilet and pond (Haudi) in the suit  

land was made.  Therefore, the Trial Court was correct in  

holding that the plaintiff- Shyam Babu was not in possession  

of land.  

22.  The Khasara entry of Samvat 1966 is exhibit P-11. The  

name of the owner of Khasara No.486 (Vasarash Sadar), Rakam  

Tehsil Khewat 1 is recorded whereas Kashtakar Dakhilkar in  

column No.7 (Basrah Sadar) Ram Chander s/o Kashi Ram resident  

of Deh Dakhilkar is mentioned. Further in column No.8 the  

following  entry  is  given  as  Skikmi  Kashtakar  and  Muddat  

Kashta:-

“Manko widow Khushi Ram and Arjun-

Rajawati widow of Reoti Prasad Kayastha,  

Mangal Singh and Ram Prasad.”

In the further columns the vegetables, crop and makka,  

channa etc. is mentioned.

23. In second old Khasara entry Exhibit P-10 for Samvat 1992  

with respect to Khasara No.486/19 in the column No.5 for the  

name of the owner ‘Municipality No.1’ is mentioned and further  

Warelal  Gopi  Ram  Mauru-  Mangal  Singh-  Bhagwati  s/o  Reoti  

Prasad Ka.Sa.Deh.Mu.Maurusi is mentioned and in column No.20  

‘Kisam Abadi’ is mentioned. In column No.9 Chita Lagani has  

been shown.  

24. According to plaintiffs, the old Account No.486/19 of the  

land is in dispute, and therefore, in this Khasara entry this  

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land is reflected as Bila Lagani Abadi under the ownership of  

Municipality.  

25. The Trial Court on appreciation of the entries and its  

genuineness which is to be presumed under the provisions of  

Section 117 of the Madhya Pradesh Land Revenue Code, came to a  

definite conclusion that the entries were made with different  

ink and hand-writing and the compliance of the order by any  

competent officer is not mentioned in the Khasara. In this  

regard   when  cross-examined,  Gita  Ram  Verma   (PW-3),  

Abhilekha Pal of Rajasava Abhilekhagar Gwalior made certain  

statements at paragraph 5,6, and 7 of cross-examination which  

raised  doubt  about   the  entries  in  some  of  the  khasara  

placed by the plaintiff.

26.  Gita Ram Verma-(PW-3) in her statement stated the record  

of samvat 1977 to samvat 1992 in the ‘Abhilekha Gar’ (record  

room)  of  Director  Land  Record.  The  plaintiffs  could  not  

correspond how they could get Exhibit P-10 and P-11 which were  

available  in  the  record  room  and  could  not  prove  the  

correctness of those exhibits. Errors and omissions have been  

also found in the Khasara entries produced by the plaintiffs.  

Hence  the  Trial  Court  doubted  the  correctness  of  those  

khasaras..

27. The aforesaid fact has not been dealt with by the High  

Court in proper perspective.  Merely on the basis of  Khasara  

of the year Samvat 1992 Ex.P/10, Khasara of the year Samvat  

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1996  Ex.P/11,  Khasara  of  the  year  Samvat  2003  Ex.P/2  

declaration has been given in favour of the plaintiffs.  The  

High Court also noticed the Khasara of the year Samvat 2004  

Ex.P/3, Samvat 2005 Ex.P/4 and Samvat 2006 Ex.P/5, and then  

Khasara of the years Samvat 2010 to 2014 Ex.P/6, Khasara of  

the years Samvat 2013 to 2017 Ex.P/7 and Khasara of the years  

Samvat 2035 to 2038 Ex.P/8.

28. In the Khasara of the years Samvat 2035 to 2038 Ex.P/8  

the nature of the land was mentioned as Nazul Abadi. In such  

exhibit the Municipality has been mentioned in column No.3.  

On the basis of aforesaid Khasaras, the learned Single Judge  

decided  the  title  in  favour  of  the  appellant-Municipal  

Corporation.    

29. Mutation entries do not confer title.  In Smt. Sawarni v.  

Smt.Inder Kaur & others, 1996 (6) SCC 223, this Court held :  

“7…….Mutation of a property in the revenue record  does not create or extinguish title nor has it any  presumptive value on title. It only enables the  person in whose favour mutation is ordered to pay  the  land  revenue  in  question.  The  learned  Additional District Judge was wholly in error in  coming to a conclusion that mutation in favour of  Inder  Kaur  conveys  title  in  her  favour.  This  erroneous  conclusion  has  vitiated  the  entire  judgment…….”

30.  The High Court committed a grave and manifest error of  

law in reversing the well reasoned judgment and decree passed  

by the Trial Court by simply placing reliance upon Khasaras  

entries  even without  properly appreciating  the settled law  

that Khasara entries do not convey title of the suit property  

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as the same is only relevant for the purposes of paying land  

revenue and it has nothing to do with ownership.

31. For  the  reasons  aforesaid,  we  set  aside  the  impugned  

judgment and decree passed by the learned Single Judge in  

Civil First Appeal No.1 of 1995 and confirm the judgment and  

decree passed by the Trial Court.  The appeal is allowed. No  

costs.

…………………………………………….J.                  (SUDHANSU JYOTI MUKHOPADHAYA)

…………………………………………….J.               (A.K. SIKRI)

NEW DELHI, JULY 2,2014.

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