Maharashtra Land Revenue Code, 1966 – Ss. 148, 149 & 150 – Record of Rights – Merely 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.
JT 2015 (9) SC 346 : 2015 (10) Scale 559 : AIR 2015 SCW 6333 : 2015 (6) AIR Bom.R 475 : 2015 (6) ALL MR 928 : 2016 (1) BCR 19 : 2016 (130) RD 159 : 2016 (1) JLJR 64 : 2016 (1) PLJR 197 : 2016 (2) ALT 44 : 2016 (1) JBCJ 135 : 2016 (1) ICC 634 : 2016 (1) RJ 600 : 2016 (1) RAJ 191
CIVIL APPELLATE JURISDICTION
(RANJAN GOGOI) AND (R.K. AGRAWAL) JJ.
OCTOBER 8, 2015.
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)
For Petitioner(s) Ms. Abha R. Sharma, AOR For Respondent(s) Mr. R. N. Keshwani, AOR Mr. E. C. Agrawala, AOR
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 landlordKamlakar 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.
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.