Saturday, 8 October 2016

Whether title to property can be transferred on basis of mutation entry?

 But the real crux of this matter is as to what is the legal effect of the said Mutation Entry No. 2053 at Exhibit 45. The trial Court has come to the conclusion that because of the said mutation entry, Sonatai Joti Ghadge got title to the property in question along with other properties. But that finding of the trial Court is not at all correct and proper. It is settled law that mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue. The said entries cannot amount to transfer of the title of the holder of the property in favour the person in whose name the entries are made. Therefore, merely because Bali Pandurang Gharge, father of the present appellant No. 1 happened to make a Vardi application on 3rd of September, 1966 to delete his name and to enter the name at Sonatai Joti Ghadge, that act on his part would not amount to transfer of the property in question and that giving of the Vardi application and certification of the said mutation entry would not create any title in favour of Sonatai Joti Ghadge. Therefore, merely because the name of Sonatai Joti Ghadge is entered in the Kabjedar column of the record of rights on account of the mutation entry at Exh. 45, it could not be said that in law Sonatai got title to the property in question.
Bombay High Court
Abasaheb Bali Gharge And Anr. vs Balaji Ramhari Gharge on 14 October, 1994
Equivalent citations: 1995 (1) BomCR 542:1996(1) MHLJ209

Bench: S Pandit


1. Original defendants in Regular Civil Suit No. 133 of 1976 on the file of the Civil Judge, Junior Division, Vaduj, have come in Second Appeal.
2. The suit property consists of an agricultural land bearing Survey No. 308/4, admeasuring 78 acres of village Vikhale, Taluka Khatav, District Satara.
3. Respondent-plaintiff came before the Court with the case that the said property was of the ownership of Sonatai Bali Ghadge and that she was in occupation and possession of the said property as its owner since the year 1955-1956 and she sold the said property to him for a consideration of Rs. 14,000/- on 1st of January, 1976 and put him in possession of the same and since then he is in occupation and possession of the said property, but the defendant No. 1 - Abasaheb, who is the son of Bali Pandurang Gharge, is trying to disturb his possession and enjoyment of the said property along with his wife and, therefore, he sought a decree for perpetual injunction.
4. The defendants-appellants contested the claim of the plaintiff by filing written-statement at Exhibit 15. They denied the claim of the plaintiff that the property in question was of the ownership, possession and enjoyment of his vendor Sonatai and that Sonatai had sold the same for a consideration of Rs. 14,000/- in favour of the plaintiff and had put the plaintiff in possession of the same. They further contended that the plaintiff has neither title nor is he in possession of the suit property. They contended that the property in question was an ancestral property of Bali Pandurang Gharge and defendant No. 1 - Abasaheb being the only son of Bali Pandurang Gharge was in enjoyment and possession of the said property during the lifetime of his father as well as thereafter and that the plaintiff and even Sonabai, who was the kept mistress of his father, had no right, title and interest in the said property. The defendant No. 1 - Abasaheb therefore, sought the dismissal of the plaintiff's suit with costs.
5. In view of the rival pleadings, the trial Court had settled issues at Exhibit 18 and recorded evidence for both the sides. The trial Court found that the plaintiff had title as well as possession of the property in question. He, therefore, decreed the plaintiff's suit in toto.
6. Feeling aggrieved by the said decision the present appellant had preferred Civil Appeal No. 143 of 1982 in the District Court of Satara and the said appeal was dismissed on 12th April, 1984 by confirming the judgment and decree of the trial Court and that has brought the original defendants Nos. 1 and 2, before this Court.
7. It is the claim of the plaintiff that defendant No. 1's father Bali Pandurang Gharge had transferred the property in question of his vend for, Sonatai as it was her own property, and Sonabai has become the owner of the said property on account of a mutation entry made by the father of the appellant-defendant No. 1. The plaintiff has produced on record the certified copy of the Mutation Entry No. 2053 at Exhibit 45. In the said mutation entry it is shown that on 3rd of September, 1956 Bali Pandurang Gharge had given a Vardi application and by the said Vardi application he asked deletion of his name against the lands of village Vikhale mentioned in the application and to enter the name of Sonatai Joti Ghadge as the owner of the said property. The said mutation entry was certified as Bali Pandurang Gharge had admitted the correctness of the said Vardi application on 29th September, 1956. The said mutation entry as well as the entries in the extracts of the record of rights show the name of Sonatai Joti Ghadge in the Kabjedar column as well as in the Crop column. Therefore, in view of the said entries, the trial Court as well as the first appellate Court have held that Sonatai was in occupation and possession of the property in question from the year 1955-56 till she executed the sale deed in favour of the respondent-plaintiff and since the date of the said sale deed, the respondent-plaintiff came in possession of the property and continued to be in possession till the date of the suit. That finding is the concurrent finding and there is no material on record to show that the said finding of the two courts below is either perverse or grossly erroneous.
8. But the real crux of this matter is as to what is the legal effect of the said Mutation Entry No. 2053 at Exhibit 45. The trial Court has come to the conclusion that because of the said mutation entry, Sonatai Joti Ghadge got title to the property in question along with other properties. But that finding of the trial Court is not at all correct and proper. It is settled law that mutation entries or entries in the record of rights are made only for the fiscal purpose of recovering revenue. The said entries cannot amount to transfer of the title of the holder of the property in favour the person in whose name the entries are made. Therefore, merely because Bali Pandurang Gharge, father of the present appellant No. 1 happened to make a Vardi application on 3rd of September, 1966 to delete his name and to enter the name at Sonatai Joti Ghadge, that act on his part would not amount to transfer of the property in question and that giving of the Vardi application and certification of the said mutation entry would not create any title in favour of Sonatai Joti Ghadge. Therefore, merely because the name of Sonatai Joti Ghadge is entered in the Kabjedar column of the record of rights on account of the mutation entry at Exh. 45, it could not be said that in law Sonatai got title to the property in question.
9. The learned first appellate Court has recorded somewhat inconsistent reasons for upholding the title of Sonatai Joti Ghadge. At one stage, the learned first appellate Court accepts and admits that Sonatai Joti Ghadge was a kept mistress of Bali Pandurange Gharge. When he accepts that Sonabai was the kept mistress of Bali Pandurang Gharge, he cannot treat her as the members of the family of Bali Pandurang. If the mutation entry at Exhibit 45 is examined properly, then it would be quite clear that the name of Sonatai is given as "Sonatai wife of Joti Ghadge, whereas the name of father of the appellant is Bali Pandurang Gharge. Therefore, at the time of the said mutation entry, Sonatai was married to one Joti Ghadge and in the said mutation entry, Bali Pandurang Gharge does not claim her to be his wife. No doubt, from the reading of the pleadings of the defendant No. 1 as well the evidence on record it could be said that this Sonatai was in keeping of the said Bali Pandurang Gharge, but merely because she was in keeping of Bali Pandurang Gharge and Sonatai and Bali Pandurang had long cohabitation it could not be said that Sonatai Joti Ghadge and Bali Pandurang Gharge could be recognised as wife and husband in the eyes of law. The relationship between Sonatai Joti Ghadge and Bali Pandurang Gharge is from its very inception an illicit relationship and the relationship which is from its inception an illicit relationship, cannot turn the said relationship into a legitimate relationship, though the relationship may continue for number of years. The learned first appellate Court has observed that as Sonatai was in long cohabitation with Bali Pandurang, she would become the wife of Bali Pandurang in the eyes of law and, therefore, this Vardi application given on 3-9-1956 should be treated as a family arrangement made by Bali Pandurang Gharge. But at the cost of repetition, it must be said that once it is admitted or proved that the relationship between Sonatai and Bali Pandurang arose out of an illicit relationship, the said relationship could not become legitimate by passage of time, particularly when Sonatai Joti Ghadge was already married with another person and there is nothing on record to show that her matrimonial tie with Joti Ghadge was brought to an end either by dissolution of their marriage or by death of Joti Ghadge. The learned first appellate Court has also wrongly observed that Sonatai was treated and accepted as wife by members of the family and other relations. That observation is also clearly against the material on record. The defendant No. 1, the appellant before us, has in unequivocal terms contended in his written-statement that Sonatai was only a kept mistress of his father. There is no material on record to suport the observations of the first appellate Court that Sonatai was treated and accepted as the wife of Bali Pandurang Gharge and that she was treated as his wife by the members of the family. It must be mentioned here that the very mutation entry, on which the respondent-plaintiff is relying, itself does not say that even Bali Pandurang Gharge himself had ever treated her as his wife. Because in the said mutation entry he gives her name as "Sonatai wife of Joti Ghadge" and does not make it clear in the said mutation entry that the said Sonatai is living with him for number of years as his wife and that he had treated her as his wife. Therefore, the finding recorded by the first appellate Court that the mutation entry should be taken as an act of family arrangement and that on the strength of the said mutation entry the title of Sonatai Joti Ghadge should be accepted, could not be upheld and confirmed.
10. Thus, I hold that both the trial Court as well as the first appellate Court have committed an error in holding that the mutation entry at Exhibit 45 has conferred a title on Sonatai. At the cost of repetition, it must be said that a mutation entry could not be taken as a document of title. It is only an entry made for the fiscal purpose of recovering revenue.
11. It is vehementaly urged before me by Shri N.V. Walawalkar that both the trial Court as well as the first appellate Court were not justified in recording a finding that plaintiff's vendor Sonatai had a title to the land in question. I have already mentioned above that on account of the mutation entry at Exhibit 45, it could not be said that Sonatai got title to the property in question legally. I have also held that the Mutation Entry No. 2053 at Exhibit 45 does not confer any title on Sonatai. But both the trial Court as well as the first appellate Court have held that Sonatai came in possession of the suit land since the date of the said mutation entry and that she was all alone in possession and enjoyment of the suit property till the transfer of the said property in favour of the respondent-plaintiff. Sonatai has sold the suit property to the respondent-plaintiff by a registered sale deed on 1st January, 1976. The said sale deed is produced at Exhibit 57. When it is proved that Sonatai was continuously in possession and enjoyment of the said property from 3rd September, 1956 till the date of transfer of 1st January, 1976, it is quite obvious that she was in possession and enjoyment of the said property continuously for more than twelve years next before the transfer in question. Her possession was open; it was adequate and it was known to the real owner. The transfer is also effected by her during the lifetime of Bali Pandurang Gharge and he had never disputed her right to transfer the said property. Therefore, in the circumstances, when she was in possession and enjoyment of the said property openly, continuously and to the knowledge of the real owner and when she was enjoying the said property in her own right, it could not be said that she could not acquire title to the property by the law of prescription. It could not be said that her possession was permissive or that she was a licensee. There is nothing on record to show that her possession was permissive. Therefore, in the circumstances, I hold that her possession of more than 12 years since the date of mutation entry at Exhibit 45 was adverse possession and by the said adverse possession she had perfected her title to the property in question. Consequently, she was the owner of the land in question on the date of transfer which took place on 1st January, 1976 i.e. nearly 191/2 years after she was put in possession on 3rd September, 1956.
12. Thus, I hold that Sonatai Joti Ghadge had title to the property in question on account of her perfecting title to the same by adverse possession. Thus, I hold that the suit of the plaintiff was rightly decreed by the learned trial Court as well as by the first appellate Court and that the present appeal deserves to be dismissed.
13. In the result, the appeal is dismissed. But in view of fact that the respondent and his advocate are not present, I direct both the parties to bear their respective costs of this appeal.
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