Bombay High Court
Bhagwantrao Narayanrao Randive vs Panditrao Narayanrao Randive on 29 November, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:25022
1 SA.272-95.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH
AT AURANGABAD
SECOND APPEAL NO. 272 OF 1995
Bhagwatrao S/o Narayanrao Randive,
Age : 58 years, Occu. Agriculture,
R/o Sarola, Taluka and District
Osmanabad. ... Appellant
Versus
Panditrao S/o Narayanrao Randive,
Age : 70 years, Occu. Agriculture,
R/o Sarola, Taluka and District Osmanabad,
(Died) through his L.Rs.
1. Ashok S/o Panditrao Randive,
Age : 50 years, Occu. Agri.,
R/o Sarola, Dist. Osmanabad.
2. Shashikant S/o Panditrao Randive,
Age : 45 years, Occu. Agri.,
R/o As above.
3. Sow. Mangal W/o Shivaji Bhosale,
D/o Panditrao Randive,
Age : 32 years, Occu. Household,
R/o As above. ... Respondents.
...
Advocate for Appellant : Mr. Anand P. Bhandari.
Advocate for Respondent Nos.1 to 3 : Mr. P. R. Katneshwarkar.
...
CORAM : S. G. MEHARE, J.
RESERVED ON : 01.09.2023
PRONOUNCED ON : 29.11.2023.
JUDGMENT :
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2 SA.272-95.odt
1. The plaintiff has impugned the judgments and decrees of
dismissal of his suit passed by the learned 2 nd Joint Civil Judge
Junior Division, Osmanabad in Regular Civil Suit No.438 of
1983, dated 03.05.1985 and by the learned Additional District
Judge, Osmanabad in Regular Civil Appeal No.208 of 1985,
dated 13.03.1995.
2. For the sake of convenience, the appellant will be
referred to as 'plaintiff' and respondent as the 'defendant'.
3. The brief facts giving rise to the suit between two real
brothers were that the plaintiff and the defendant were four
brothers, including two stepbrothers. After the death of their
father, one stepbrother and the defendant were managing their
huge landed properties.
4. The Plaintiff had a case that the defendant in 1969 had
allotted him a separate share. The mutation was recorded in
his name. The defendant himself had moved the application for
mutation. He exclusively possessed Survey No.27, measuring 1
Acre and 4 gunthas and Survey No.28/A, measuring 1 Acre
and 27 gunthas, along with other properties from 1967-68. In
1973, the Scheme under the Bombay Prevention of
Fragmentation and Consolidation of Holdings Act was
3 SA.272-95.odt
implemented in their village. In the said consolidation, his
lands Survey Nos.27 and 28-A were consolidated and
numbered as Gut No.79 (Ex.44). The fields that came to the
share of the defendant were also consolidated, and Gut No.78
was given to his consolidated fields. Gut No.78 was towards
the East of Gut No.79. Gradually, the defendant in 1979-80
started encroaching upon his Gut No.79. He requested the
defendant not to do such illegal acts, but they continued to
encroach upon his land. Lastly, he got his land measured
through the Cadastral surveyor and found that the defendant
had encroached over 40 Are of land from Gut No.79. Hence, he
filed a suit for removal of encroachment, possession and mesne
profits.
5. The defendant denied the encroachment. He had a case
that in 1959 all brothers had an oral partition and it was
effected vide Mutation Entry No.106. The plaintiff never got
Survey No.27/B to his share. There was no partition in 1967-
68. There was only one partition in 1959. He denied that Gut
No.79 was consolidated with Survey No.27/B. He had
impugned the Consolidation Proceedings, but the Additional
Collector rejected his appeal. During the pendency of the suit,
his revision was pending before the Divisional Commissioner.
4 SA.272-95.odt
He also pleaded that he had a partition with his sons and his
son Ashok is possessing Survey No.27/B. He also assailed the
legality and validity of the measurement done by the Cadastral
surveyor, specifically on the ground that the notice of
measurement was not served on him personally.
6. Appreciating the evidence, the learned Court of first
instance decreed the suit. However, the First Appellate Court
reversed the judgment and decree of the Court of the first
instance.
7. On 03.08.1995, this Court admitted the appeal and
passed the following order ;
"There involves substantial questions of law as set
out in grounds No. 6 to 9.
Admit. Notice."
8. The grounds Nos.6 to 9 from the appeal memo are
reproduced thus;
6. That the substantial question of law in the present
case is as to whether there is a presumption of ownership
in favour of the Appellant when his name recorded as the
owner right from 1968 in R.O.R.
5 SA.272-95.odt
7. The substantial question of law is as to who was
overcome and disprove presumption of the correctness of
the Revenue Record.
8. That admittedly the land in question is a part of Gat
No.79 and it stands in the name of the Appellant as per the
record of Consolidation. The Respondent further admitted
that the lands owned by him were formed into Gat No.78.
He did not lay any claim to any portion of Gant No.79. The
substantial question of law, therefore, is as to whether the
findings recorded by the trial court could be reversed on an
erroneous assumption that the Appellant withheld the
alleged deed of partition referred to in the mutation entry
no. 334 mad on the application of the Respondent himself.
9. That on the basis of the voluminous evidence
produced before the trial court, the trial court held that the
land in question was part and parcel of Gat No.79 and that
it was supported and corroborated by the map as well as by
the report regarding encroachment prepared by P.W. 2 a
cadastral surveyor. The substantial question of law
therefore, is as to whether the findings recorded by the
trial court which was based on voluminous evidence
comprising of Revenue Record and the record of the
Consolidation and measurement could be reversed. The
findings recorded by the Appellate Court are on the
erroneous assumption and misreading of evidence. This is
a substantial question of law.
9. Heard the respective learned counsels at length. After
the hearing was over, it was brought to their notice that the
above substantial questions of law would be reformulated to
6 SA.272-95.odt
give them the shape of substantial questions of law. Both of
them happily agreed. Hence, the substantial questions of law
on which the appeal was admitted have been reformulated
thus;
1. Does a long-standing Mutation Entry presume
the title in favour of the Plaintiff ?
2. How will the presumption of entries in the
Revenue Record be rebutted ?
3. Does withholding a partition deed mentioned in
the Mutation Entry falsify the Plaintiff's title derived
from the partition ?
4. Did the first appellate Court misread the
evidence and erroneously reversed the judgment and
decree of the Court at the first instance ?
10. The learned Counsel for the plaintiff has vehemently
argued that as per the Mutation Entry No.106, the defendant
was allotted a share of the disputed land Survey No.27/B.
Though Survey No.27 was mentioned in the suit, the
defendant correctly mentioned its survey number. In 1969, the
plaintiff and defendant had a partition and in that partition
Survey No.27/B came to the Plaintiff's share. He started
cultivating the said field. The Mutation entry No.334 was
recorded in his name. In the Consolidation proceedings of the
year 1973, Survey Nos.27/B and 28 were consolidated and a
7 SA.272-95.odt
new Gut No.79 was formed. The defendant never impugned
the said proceedings, and mutation entry No.334 till the
plaintiff had filed the suit. His appeal has also been dismissed.
He never disputed the Mutation Entry No.334 in the name of
plaintiff about Survey No.27/B. It has a presumptive value.
However, the learned first appellate Court, admitting the
presumption of the revenue entry, illegally disbelieved it only
for not producing the partition deed. He lost sight that the
partition between them was never denied. He referred to the
document placed on record and pointed out that the first
appellate Court had misread the evidence. He submits that the
impugned judgment of the first appellate Court reversing the
reasoned judgment of the Court of the first instance, is without
any sound legal basis. He also submitted that the long-standing
mutation in the name of the plaintiff affirmed his title. It was a
title acquired under the admitted partition. Hence, the plaintiff
cannot lose his title over the suit field. Withholding the
document creating a right would not affect the validity of the
mutation entry No.334, when it was taken as per the
application of the defendant himself. He also vehemently
argued that in the peculiar circumstances of the case and the
relation between the parties, the plaintiff could not be deprived
of his right to have his land come to his share. The learned first
8 SA.272-95.odt
appellate Court totally ignored the rule of appreciating the
evidence. The evidence is to be read as a whole. The first
appellate Court misread the evidence. Hence, he came to the
wrong conclusion. He relied on the case of Sarju Pershad Vs.
Raja Jwaleshwari Pratap Narain Singh and Others, 1950, SCC
714. This case is on the fresh measurement as there were two
different Cadastral Surveyor's reports. In this case,
measurement, though challenged on the ground of non-service
of the notice, the title of the plaintiff has been disputed.
Therefore, the said case would not assist the plaintiff. He
prayed that the appeal may be allowed.
11. The learned Counsel for the defendant supported the
impugned judgment and decree of the first appellate Court. He
argued that the plaintiff had claimed the title under an
encroachment. There were no findings as to whom the Survey
No.27/B belonged. The learned Court of the first instance drew
the adverse inference against the plaintiff for non-production
of the partition deed and erroneously decreed the suit. All
brothers had an oral partition and were effected vide Mutation
Entry No.106, by which Survey No.27/B went to the
defendant's share. The plaintiff's suit was based on the title.
Unless the title is proved when specifically objected, the
9 SA.272-95.odt
burden to prove the title was on the plaintiff. If he had claimed
the title on the basis of the partition deed, he was to produce it
on record. But he had improved his case that the said partition
deed was in possession of the defendant. However, he did not
serve a notice on the defendant to produce the partition deed
to prove his title. Without the title document, the first appellate
Court correctly doubted the plaintiff's case. The partition deed
was the backbone of the plaintiff's claim. In such a situation,
the entries in the revenue record could not be presumed to be
true and genuine. There was no evidence before the Court how
much area from Survey No.27/B went to the Plaintiff's share.
The presumption of revenue entries was rebutted from the
evidence brought before the Court. The law is well settled that
the revenue record does not confer the title; it is only for the
fiscal purpose. The plaintiff was to prove the title
independently. He also argued that in the absence of notice of
the measurement of the land, the evidence of the Cadastral
surveyor cannot be believed. The plaintiff failed to prove the
encroachment. No legal procedure was followed to determine
the encroachment. There are no substantial questions of law
involved in the appeal. Hence, the appeal be dismissed.
10 SA.272-95.odt
12. The plaintiff claimed that he acquired the title by
partition in 1968, and the defendant claimed that there was
only one partition in 1959. The dispute was about Survey
No.27/B only ("Suit land" for short). Both rely on the
Mutation Entries ("M.E." for short). The plaintiff filed only a
7/12 extract for the year 1982-83 (Exh.5). The defendant
produced certified copies of M.E. No. 106 (Exh.39) and M.E.
No. 334 (Exh.42). He also produced the record of rights (form
No.7) of the 1961-62 and 62-63 showing his possession over
the suit land, the entry of Consolidation of field Survey
No.27/2 and 28/2 (Exh.44), 7/12 extract in the name of
plaintiff for the years 1974-75 and 1975/76 (Exh.43).
13. Admittedly, the defendant had impugned the M.E. No
334 before the Revenue Authority. However, it was rejected on
the ground of limitation. The proceeding against consolidation
was pending before the competent Authority. No one has
argued on its current position.
14. Both brothers are relying on the Mutation entries. It was
not disputed that the suit field was their joint family property.
The plaintiff did not dispute that there was a partition in 1958.
However, he would say that it was a partition between the
11 SA.272-95.odt
defendant and his stepbrother Vithhal. After the said partition,
he and the defendant were living jointly. He did not dispute the
M.E. No.106. His case rests upon M.E. No.334. His evidence is
improved on many material facts, like the partition between
the defendant and his stepbrother, his jointness with the
defendant, the allotment of various lands in the partition, and
entering his name in the record after the partition. However, he
did not produce the mutation entries of other lands he got in
partition with the defendant. He did not produce the
application that was allegedly filed by the defendant. On the
contrary, he admitted in his cross-examination that he had filed
an application for M.E. No.334. In view of this admission, it
could be safely inferred that the partition deed on the basis of
which M.E. No.334 was recorded was in his custody and
possession. He did not produce a single document showing he
and the defendant were in joint possession and ownership.
There are two M.Es. Therefore, it is to be weighed which one
will prevail over and whose evidence should be believed on the
preponderance of probabilities. The revenue record is
maintained under the Maharashtra Land Revenue Record of
Rights and Registers (Preparation and Maintenance) Rules,
1971. (Rules 1971 for short), Before adverting to the validity,
authenticity and effect of the record maintained under the said
12 SA.272-95.odt
Rules, it would be appropriate to mention and examine the
relevant provisions under the M.L.R. Code about the mutations
and their procedure.
15. Section 148 of the M.L.R. Code provides that a record of
rights shall be maintained in every village. It is a record that
requires maintenance of the revenue record, which is
obligatory for the authorities appointed therefor. Section 149
of the M. L.R. Code mandates that a person who acquires a
right by any mode of acquiring the title or interest should
report orally or in writing about the right acquired to the
Talathi within three months of acquiring such right, interest or
title. The Talathi is duty-bound to issue a written
acknowledgment of the receipt of such information to a person
making it. Section 150 of the said code contains a provision for
the maintenance of a register of mutation recording every
information received under Section 149. Such information is
effected under Section 154. On receipt of information about
the rights acquired, the Talathi is bound to display the
complete copy of the entry in a conspicuous place in the
Chawadi and give intimation in writing to all persons
appearing from the record of rights or register of mutations to
be interested in mutation, and to any other person whom he
13 SA.272-95.odt
has reason to believe to be interested therein. If any objection
is raised in relation to the entry, it is recorded in the register
and disposed of within one year by the Revenue Survey Officer
and order disposing of objections are to be recorded in the
register of mutations. Section 157 of the M.L.R. Code states
that an entry in the record of rights and a certified entry in the
register of mutations shall be presumed to be true until the
contrary is proved or a new entry is lawfully substituted
therefor. The record or rights means the rights of the person in
or over land, and forms in which the records of various rights
are to be maintained are specified by the Rules of 1971.
16. It is a settled position of law by various judicial
pronouncements that the entries in the revenue records do not
create or extinguish any title in whose favour it is recorded.
Such entries are only for the fiscal purpose of recovering the
land revenue and cannot be taken as a transfer of title by the
property holder. The entries by themselves thus do not
determine the title by the holder of the person, though they are
presumed to be a true statement of their contents unless the
contrary is proved. Such entry does not have a presumptive
value of title. In the case of Sita Ram Bhau Patil V. Ramchandra
Nago Patil (Dead) by L.Rs. and others ; (1977) 2 S.C.C. 49 , the
14 SA.272-95.odt
Hon'ble Supreme Court held that there exists no universal
principle that whatever will appear in the record of rights will
be presumed to be correct, when there exists evidence to the
contrary.
17. It has been argued for the appellant that the mutation
entry No.334 attained the finality as the appeal preferred
against it was dismissed. It was an old entry; therefore, it is
received as evidence and believed to be true and genuine. That
entry, in the absence of a separate title document, proves the
title of the plaintiff.
18. As discussed above, the revenue entry is presumed to be
true, but the presumption is rebuttable. Since the defendant
denied the M.E. No.334, the burden was on him to rebut the
presumption of its truthfulness. The plaintiff did not plead how
the partition took place between him and the defendant. He
simply pleaded that in 1968, the defendant allotted him his
share. The M.E. No.106 reveals that their family had huge
properties. The said entry was never impugned. A look at M.E.
No.106 (Exh.39) reveals that Vitthal partitioned the lands and
allotted separate shares to all brothers, including the plaintiff.
This entry corroborates the defendant's evidence that Survey
15 SA.272-95.odt
No.27/B was never allotted to the plaintiff. The plaintiff had
got his shares in other survey numbers. The defendant
produced a copy of M.E. No.334 (Exh.42). Its contents reveal
that the plaintiff had applied for mutation. He intimated to
Talathi that Survey No.27/1/B was in the name of his brother
i.e. the defendant, and that land came to his share. However,
the mode of partition was not mentioned. He simply claimed
that he was in possession of the said land. He applied on
05.12.1968 for mutation. The endorsements of the certifying
Officer reveal that on 01.07.1969, the directions were issued to
produce the deed of partition. Another endorsement dated
15.02.1970 was that mutation could not be certified as the
partition deed was not produced. The last endorsement dated
11.06.1970 was that the original partition deed was produced;
the mutation is certified accordingly. The plaintiff neither
pleaded nor produced the said partition deed in the Court, but,
he tried to bring the material that it was in the custody and
possession of the defendant. No attempts were made to get it
produced from the defendant by giving him notice to produce
the said partition deed. As against this, the defendant had a
specific case that after 1959, there was no partition. In the
circumstances, it was incumbent on the plaintiff to produce
evidence that there was a partition in 1969. He also tried to
16 SA.272-95.odt
explain that in 1959, he was a minor, but his admission that in
1959, he was a major falsifies his explanation. He was relying
on the 7/12 extract after the consolidation and the statement
of consolidation. The defendant had impugned the said
consolidation entry and it was pending. Till the present appeal
was argued, none made a statement about its disposal.
19. In the given circumstances, it is to be tested whether
M.E. No.334 was taken as per the Rules of 1971. Rule 17 is
relevant. Rule 17(1) requires that before certifying the
undisputed mutation entries, the certifying Officer shall inform
the Talathi to the effect in Form No.XI. On receipt of such
intimation, and at least fifteen days before the date fixed for
certifying entries made in the register of mutations, the Talathi
shall issue notices in Form XII to all persons likely to be
interested in such entries and call upon them to be present at
the place along with Khate Pustika on the date and time fixed
for certifying entries. The rule is clear that before certifying the
entries in the case of undisputed mutation, the notice shall be
given in advance to the persons likely to be interested in the
mutation proceeding. Rule 17(2) provides that on the date,
time, and place fixed for deciding the disputes, the certifying
Officer shall read out undisputed mutation entries in the
17 SA.272-95.odt
presence of the persons present. If the correctness of such
entries is admitted by all the persons present, the certifying
Officer shall record such admission in the register of mutations
and add the endorsement under his signature that the entries
have been duly certified. In case there is a dispute over the
entries, he shall hold a summary enquiry and decide each
dispute entered in the register of disputed cases on the basis of
possession, that is to say, if a person actually holds possession
under a claim of title, he shall be recorded as occupant class I,
occupant class II or as the case may be, Government lessee in
the register of disputed cases and accordingly endorsed that
the mutation entry has been modified. The rule is to give an
opportunity to be heard to the person interested before
certifying the mutation entries, and the proceedings shall be
endorsed in the Register of Mutation. The M.E. No.334 does
not reflect that the defendant was heard before the certifying
Officer or he did not dispute the mutation informed by the
plaintiff. In the absence of such legal requirement, the entry
No.334 could not be believed to be true when the defendant
denied the claim of the plaintiff based on the title derived from
partition. The said mutation entry itself is defective. Therefore,
M.E. No.334 did not support the plaintiff's case that they had a
partition in 1968 and the possession was handed over to him.
18 SA.272-95.odt
The plaintiff had a specific case of partition. Hence, the burden
was on him to prove that there was a legal and valid
acquisition of title in the suit land.
20. Part C of the Rules of 1971 provides for the preparation
of new records of rights in place of existing records of rights in
areas other than those surveyed under Section 126 of the
M.L.R. Code. Sub-rule 4 of rule 6 provides that if a record of
rights in Form-I is prepared by any Consolidation Officer in
respect of any (holding) under Section 24 of the Bombay
Prevention of Fragmentation and Consolidation of Holdings
Act 1947, that record of rights shall be deemed to be a new
record of rights prepared under these Rules for that holding.
Under Rule 34 of The Maharashtra Prevention of
Fragmentation and Consolidation of Holdings Rules 1959, in
accordance with the scheme of consolidation, the
Consolidation Officer has to prepare and correct a new record
in the manner laid down in Section 148 to 159 of M.L. R.
Code. Even after the consolidation, no such new record of
rights was prepared, nor did the plaintiff produce any such
entry. The Court is not oblivious of Section 36-A of the above
Act, which expressly bars the Civil Court's jurisdiction.
However, the above observations are recorded only in
19 SA.272-95.odt
reference to the claim of the plaintiff which was based on the
mutation entries.
21. The plaintiff admitted that the suit land went to the
defendant's share in the partition of 1959. He produced M.E.
No.106, which the defendant never disputed and no evidence
in rebuttal was brought. The 7/12 extract (Exh.41) stands in
the name of the defendant from 1961-62 to 1972-73. That
again strengthens the defendant's case. Hence, in the given
circumstances, it would be considered for the purpose of the
defendant's possession of the suit land.
22. The presumption under Section 157 of the M.L.R. Code
can also be rebutted in a civil suit as there is no bar and the
title was claimed on the basis of such entry. Impugning the
mutation entry in appeal under Section 247 of the M.L.R. Code
and rebutting the presumption are two distinct concepts.
Hence, barely dismissing the appeal against M.E. No.334
would not deprive the defendant of rebutting the presumption
of the mutation entry. The defendant's evidence and the legal
defect in recording the M.E. No.334, as discussed above, were
sufficient to rebut the presumption.
20 SA.272-95.odt
23. The Court has considered the questions of law raised by
both learned counsels for the parties, discussed the law,
examined the impugned judgment and answered the
substantial questions of law so formulated as follows;
Question No.1 :- The age of mutation in the revenue
record would not create or extinguish a title in favour of a
person it is recorded.
Question No.2 :- The presumption about the accuracy of
entries may be rebutted by 'proving contrary'. The burden of
proving the contrary or showing the entry to be wrong is on
the person who disputes the entry. Such presumption may be
rebutted in a suit based on the title and the mutation is
disputed.
Question No.3 :- In the given facts and circumstances of
the case, withholding the partition deed, which was the best
evidence to prove the title, goes against the plaintiff as an
adverse inference could be drawn, but that would not take
away the right to prove the partition, subject to the relevant
provisions of law.
21 SA.272-95.odt
Question No.4 :- The First appellate Court did not
misread the evidence and did not incorrectly reverse the
judgment of the learned Court of the first instance.
24. Answering the substantial questions of law, the Court
concludes that the appeal deserves to be dismissed. Hence, the
following order.
ORDER
(i) The appeal stands dismissed.
(ii) No order as to costs.
(iii) The record and proceeding should be returned to
the Court of the first instance.
(S. G. MEHARE, J.)
...
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