NARAYAN LAXMAN PATIL Vs M/S GALA CONSTRUCTION CO.P.LTD..
Bench: RANJAN GOGOI,R.K. AGRAWAL
Case number: C.A. No.-008399-008399 / 2015
Diary number: 26302 / 2010
Advocates: ABHA R. SHARMA Vs
E. C. AGRAWALA
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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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