Whether parties claiming based on doubtful will should approach civil court before approaching revenue court for mutation entry?

 It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of

Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when

the mutation entry is sought to be made on the basis of the will, the partywho is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made. {Para 5}

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No. 13146/2021

JITENDRA SINGH  Vs THE STATE OF MADHYA PRADESH 

Dated: SEPTEMBER 06, 2021

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Whether it is permissible to convert occupancy class II land to class I land?

One of the conditions is that the transferee would continue to occupy the land as Occupant Class-II. The said GR having been issued by the State Government can be modified or varied only by the State Government and the officers exercising the powers under the Maharashtra Land Revenue Code are required to follow the said GR and not tinker with the terms and conditions mentioned in the said GR. In the instant case, as can be seen, the Secy. & OSD in spite of the mandate of the said GR dated 08/09/1983 has in breach and violation of the said GR directed conversion of the land from Occupancy Class II to Occupancy Class I which was impermissible. Hence it would have to be held that the order passed by the Secy. & OSD to the said extent is illegal as having been passed without jurisdiction and therefore the said condition though in favour of the Petitioner herein would be of no avail.
IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6747 of 2016

Decided On: 10.01.2017

 Niketan Land and Estate Pvt. Ltd. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:
R.M. Savant, J.
Citation: 2017(2) ALLMR 222

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What is procedure for transfer and conversion of Occupancy Class II government land?

 The writ jurisdiction of this Court is invoked against the order
dated 24/02/2010 passed by the Respondent No.2 i.e. the Collector, Nashik by

which order the application filed by the predecessor of the Petitioner for grant
of permission to transfer the land and for its conversion from agricultural to
non­agricultural came to be allowed on the terms and conditions mentioned
therein.  The terms and conditions mentioned in the impugned order entail the
payment of unearned income to the State Government, as also the condition
that the land in question would continue to remain as Occupancy Class II land.
The Petitioner is principally aggrieved by the aforesaid condition mentioned in
the impugned order.
 In the instant case it would have to be borne in mind that the land in
question was allotted to the father of the original owner Namdeo Bankar on a
new and impartible tenure i.e. Class II.  The father of the said Nameo Bankar
had also executed a Kabuliyat wherein he had given an undertaking that the
allottee and his successor were bound by the terms and conditions of the
allotment and that if he commits a breach, he is liable to be evicted.  Hence the
instant case is not a case where the renewal of lease was sought but is the case
where   the   original   allottee   had   sought   permission   to   transfer   and   for
conversion of the agricultural land to non­agricultural.   In so far as the said
aspect is  concerned,  the  GR  dated  08/09/1983 regulates  the  transfer  and
conversion of agricultural lands belonging to Class II.  The said GR therefore
supplements the Maharashtra Land Revenue Code in so far as the transfer and
conversion of the land belonging to agricultural Class II is concerned. Hence

the instant case can be distinguished on facts from the case before the Division
Bench.
24 It would also have to be noted that the Petitioner and original
Owner by their conduct are now estopped from contending that the said GR
dated 08/09/1983 has no application.   It is required to be noted that the
Petitioner/original Owner has applied for conversion in the year 1989 as per
the then extant policy.  The original owner and the Petitioner had prosecuted
the proceedings before the authorities and this Court also as regards quantum
of the unearned income payable under the said GR for transfer and conversion
of  the land. The original  owner and the  Petitioner  have also shown  their
willingness to pay the unearned income and in fact have now deposited the
said unearned income with the Collector, Nashik.   It was also contended on
behalf of the Petitioner in the said Writ Petition No.5740 of 2007 that the GR
dated   08/09/1983   has   been   fully   implemented,   meaning   thereby   that   the
applicability of the said GR was accepted. The aforesaid facts therefore act as
an estoppel against the Petitioner and the original owner from contending that
the said GR dated 08/09/1983 would have no application.  The conduct of the
Petitioner amounts to approbation and reprobation i.e. on one hand apply
under the said GR for transfer and conversion whereas on the other hand
contend that it is not liable to pay unearned income as premium which is
contemplated by the said GR. It also cannot be lost sight of that the tenor of

the above Petition is only as regards the challenge to the condition appearing
in  the  impugned order dated 24/02/2010 passed by the  Collector, Nashik
wherein it is stated that the transferee would continue to occupy the land as a
Class II Occupant.   The Petitioner or the original Owner therefore never did
once question the applicability of the said GR dated 08/09/1983 and therefore
the submissions advanced on the basis of the judgment of the Division Bench
cannot be countenanced in the facts of the instant case.   The judgment in
Mohinder Singh Gill's  case (supra) would also have no application having
regard to the facts of the instant case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6747 OF 2016 
M/s. Niketan Land and Estate Pvt. Ltd.
v
State of Maharashtra  
CORAM : R. M. SAVANT, J.

Pronounced on : 10th January 2017

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Whether it is mandatory to annex certified copy of record of right along with plaint in suit relating to land?

In fact, as per Section 132(1) of the Land Revenue Act, 1964, the plaintiff or applicant in a suit or application should annex to the plaint or application, a certified copy of the record of rights relevant to such land, provided the suit or application is in respect of an agricultural land. Sub-section (2) mandates that if the plaintiff or applicant fails to do so, the court should give some time within which the same will have to be complied with, lest, the plaint will have to be rejected in terms of VII Rule 11(d), C.P.C. It is unfortunate that the trial court has not looked into these mandatory provisions found in Section 132 of the Land Revenue Act, which is very much relevant to a suit relating to agricultural land. Therefore, all the civil courts of original jurisdiction are expected to look into whether this mandatory requirement is complied with before the registering the suit.

23. Production of a certified copy of the record of rights or a copy of mutation is essential for the court to know as to whether the land is an agricultural land and whether any acquisition is made by the competent authorities. If such record is produced and it is shown that the land in question is already acquired under the relevant provisions of the Land Acquisition Act or any other law in force, the question of grant any relief does not arise. Similarly if the agricultural land is already converted into non-agricultural use, and it is depicted in column Nos. 9 and 10 of RTC, the court can call upon the plaintiff to value the suit under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, provided the relief of declaration of title is sought. If the land is agricultural land assessed to land revenue, then the court fee will be reckoned for valuation under Section 7(2) of the Court Fees and Suits Valuation Act. Therefore, all the civil courts must put up in the check sheet/slip as to whether certified copy of mutation records or index of lands is produced, and if not, to put up a note about the bar of law contemplated under Order VII Rule 11(d), C.P.C. read with Section 132 of the Karnataka Land Revenue Act.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R.S.A. Nos. 1952/2005 and 220/2006

Decided On: 18.03.2016

 Chennappa Gowda  Vs.  N.C. Rajashekara and Ors.

Hon'ble Judges/Coram:A.V. Chandrashekara, J.

Citation:AIR 2016 (NOC)622 Kar

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Whether certified mutation entries are presumed to be correct?

 Maharashtra Land Revenue Code, 1966 holds the field in relation to agricultural lands.Sections 149, 150 and 154 are relevant. Section 149 is in respect of acquisition by succession, survivorship, inheritance, partition, purchase, mortgage, lease, or otherwise and any right as a holder, occupant, owner, mortgage, landlord, Government or tenant of the land situated in any part of the State. It is further contemplated that the person concerned shall report orally or in writing his acquisition of such rights to the Talathi within three months from the date of such an acquisition and the Talathi shall at once give a written acknowledgment of receipt of such report to the person making it. Section 150 lays down the procedure of maintenance of Register of Mutations and Register of Disputed Cases. Sub-section (6) of Section 150 empowers the Surveyor or Revenue Officer not below the rank of Avval Karkun to certify the mutation entry which is not disputed. Otherwise, Circle Inspector is the authority who can certify the mutation entries. From the mutation entry No. 815 in the case on hand, it appears that the notice was issued to defendant who did not raise any objection and that is how said mutation was certified by the Circle Inspector on 20-4-2005. Presumption under Section 157 of the Land Revenue Code stands in favour of the mutations which are certified. This presumption, however, is rebuttable. In the case on hand, defendant may adduce evidence at the time of trial for rebutting such a presumption. However, the fact remains that mutation as of today has to be considered in favour of the plaintiff.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

Bench: S Deshmukh

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Whether it is duty of sub Registrar to inform talathi about transfer of land as per S 154 of maharashtra land revenue code?

The first Appellate Court seems to have been swayed away with the certification of the mutation entry after about one year. The first Appellate Court blamed the plaintiff for not moving the authority concerned for certification of the mutation entry. In this context, look to Section 154 of the Land Revenue Code is necessary. It provides that intimation of transfer by registering officer, in relation to document purporting to create, assign or extinguish any title to or in charge of land used for agricultural purposes or in respect of which the record of right has been prepared as registered under the Indian Registration Act, be given to the Talathi of the village in which the land is situated and to the Tahsildar in such format and at such times as may be prescribed by the Rules under the Act. The document in the case on hand is a registered sale deed. This fact cannot be disputed. In view of Section 154 of the Land Revenue Code, it is in fact the duty of the Sub-Registrar/Registering Officer to inform the transaction in question to the Talathi as well as to the Tahsildar. Thus, it is not an obligation on the part of plaintiff, on the case on hand, to report the transaction to the Village Officer or to the Revenue Officer. Section 149 has to be read withSection 154 and conjoint reading shows that in case of acquisition otherwise than registered instrument, party has to make a written application to the Village Officer. Suffice to say that in case of registered instrument, it is a legal obligation on the registering authority. If registering authority commits an error or fails in its duties, citizen like the plaintiff cannot be blamed or made to suffer. The finding of the first appellate Court is thus, suffers jurisdictional error. Any of the Courts below did not refer to the provisions of the Maharashtra Land Revenue Code, despite the fact that they were dealing with the transaction of agricultural land, mutations and record of rights.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

Bench: S Deshmukh

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Whether revenue authority can decide question of title during mutation proceeding?

 At the same time it is also to be noted that in case there is any application by the respondents for mutation of entries in their favour based on any valid and lawfully registered document or any decision pronounced by any court or judicial or quasi-judicial authority competent to pronounce such decision, certainly the Authorities acting under sections 149 and 150 of the said Code cannot ignore such application nor can refuse to carry out the mutation in accordance with the declaration of right in favour of the party by virtue of such decision of the Court or the competent Authority. In case of any conflict between such entries, the parties have to settle the dispute by taking resort to the regular remedy available under appropriate statutes but the revenue authorities acting under Sections 149 and 150 of the Code cannot assume jurisdiction to decide about the rights of the parties in relation to properties, while acting under those provisions for the purpose of mutations. Albeit, the revenue authorities can certainly decide in such cases, the issue of actual possession. However, such decision would be final, subject to the decision of the civil court in that regard.

Bombay High Court

Shrikant R. Sankanwar And Ors. vs Krishna Balu Naukudkar on 16 January, 2003

Equivalent citations: 2003 (3) BomCR 45, 2003 (2) MhLj 276

Bench: R Khandeparkar

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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

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Whether plaintiff can claim possessory title over property even if title deed is not with him?

It appears basically a case of prior possession of the plaintiff
on the ground that suit house was acquired by her father Ukandrao during
his lifetime.
According to plaintiff, her father Ukandrao died in the year
1968 and house property in question was left in possession of her mother
Yanuna and after death of Yamuna, the plaintiff as an legal heir came into
her possession. In effect, therefore, the plaintiff had inherited the suit
house from her parents although sale deed was not produced on record to
establish that suit house was purchased by Ukandrao. It cannot be
disputed that after Ukandrao died in the year 1968, then it was left in
possession of the plaintiff’s mother in the year 1984 and then after the
death of her mother, the plaintiff came into possession of the suit house.
The 1st defendant had dispossessed the plaintiff of suit house without prior
permission by plaintiff Nanibai. Thus, it was longstanding
possession
supported by entries in Gram panchayat record, payment of electricity bill
and village panchayat taxes. It is pertinent to note that in 1st appellate
court, plea of tenancy was also raised by the appellant which was
negatived. Under these circumstances, defendant no. 1 could not have set
up title in other defendants or in himself for to protect his possession over
suit house. It is policy of civil law that no person can forcibly dispossess
without having legal recourse or availing the remedy available at law. In
the present case, plaintiff had availed of remedy according to law to

recover possession of suit house on the basis of her prior possession and
title on the premise of her inherited longstanding
possession over the suit
house. Even if assuming for the sake of argument that registered sale deed
was not tracable nor produced in order to establish ownership of Ukandrao
as purchaser of suit house, the fact that Ukandrao was in possession of suit
property till his death and after him, his widow Yamuna succeeded and
then the suit house was inherited by plaintiff Nanibai, the entries in village
panchayat record, evidence regarding payment of village panchayat taxes,
electricity bills etc. strengthened the case of the plaintiff to claim that she
was rightful owner of the suit house for to re-enter
into possession of suit
house.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Second Appeal No. 420 of 1997

 Smt Shantabai  Sonba Madavi, Vs Sau Nanibai  Udebhan Uike, 

Coram : A. P. Bhangale, J
Dated : 29th January 2014
Citation; 2014(4) ALLMR 520 BOM

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Whether revenue officer can decide legality of registered document?

 In the case in hand it is not in dispute that the petitioners had produced a registered sale deed dated 15-7-1998 while requesting for entry in their favour in mutation register. The Talathi based on the said document had allowed the application filed by the petitioners and had carried out necessary mutation in the register. The Sub-Divisional Officer while dealing with the appeal against the decision on mutation of entry, assuming illegally, the jurisdiction of the authorities under the Tenancy Act sought to deal with the controversy pertaining to the tenancy claim and right under the provisions of The Bombay Agricultural Tenancy Act, 1948, sought to set aside the said decision of Tahsildar allowing the application for mutation of entry, and thereby clearly transgressed the jurisdiction of the revenue authorities available under the provisions of the said Code and the said rules in relation to disputes pertaining to the mutation of entries. Additional Divisional Commissioner by confirming the said order of the said Divisional Officer reiterated the same illegality. Apparently both the authorities have acted illegally and beyond the powers vested in them in relation to the proceedings pertaining to mutation of entries under the said Code and the said rules, and therefore the orders passed by them cannot be sustained and are liable to be quashed and set aside. At the same time it is also to be noted that in case there is any application by the respondents for mutation of entries in their favour based on any valid and lawfully registered document or any decision pronounced by any court or judicial or quasi-judicial authority competent to pronounce such decision, certainly the Authorities acting under sections 149 and 150 of the said Code cannot ignore such application nor can refuse to carry out the mutation in accordance with the declaration of right in favour of the party by virtue of such decision of the Court or the competent Authority. In case of any conflict between such entries, the parties have to settle the dispute by taking resort to the regular remedy available under appropriate statutes but the revenue authorities acting under Sections 149 and 150 of the Code cannot assume jurisdiction to decide about the rights of the parties in relation to properties, while acting under those provisions for the purpose of mutations. Albeit, the revenue authorities can certainly decide in such cases, the issue of actual possession. However, such decision would be final, subject to the decision of the civil court in that regard.


Bombay High Court

Shrikant R. Sankanwar And Ors. vs Krishna Balu
 Naukudkar on 16 January, 2003

Equivalent citations: 2003 (3) BomCR 45, 
2003 (2) MhLj 276

R.M.S. Khandeparkar, J.

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Whether court can consider documentary evidence at stage of temporary injunction without proof?

The claim of temporary injunction, made by plaintiff needs to be considered by Court in view of the provisions laid down under Order XXXIX, Rules 1 and 2 of Civil Procedure Code. Order XXXIX, Rule 1 of Civil Procedure Code opens with the wording, "Where in a suit, it is proved by affidavit or otherwise, temporary injunction may be granted by the Court." Prima facie case, balance of convenience and irreparable loss are the factors which require to be taken into consideration by the Court while considering the application for temporary injunction. So far material is concerned, the Court can resort to affidavit filed by the party or otherwise. The expression 'otherwise' refers to various other circumstances. In a given case there may be record of rights, various documents of title or transfer of the property or other circumstances. The consideration by the Court to such material at the stage of considering application for temporary injunction is one aspect of the matter and consideration of these circumstances, at the time of trial is different aspect of the matter. At the stage of temporary injunction, Court can refer to documents which are produced on record without formal proof. At that time of the trial Court has to take into consideration the documents which are established in accordance with the provisions of the Indian Evidence Act and proved on formal proof. In other words, formal proof of the documents, which otherwise is necessary at the time of deciding the suit in that strict sense is not necessary while considering the documents concerned at the time of consideration of the prayer for temporary injunction. Public documents can be considered at the time of temporary injunction as well as at the time of disposal of the suit without formal proof and in view of the provisions of the Indian Evidence Act.

Bombay High Court

Shamrao Ganpat Chintamani vs Kakasaheb Laxman Gorde on 19 October, 2007

Equivalent citations: 2008 (2) MhLj 819

 Citation: 2008(2)ALLMR118,

S.B. Deshmukh, J.

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