mere mutation entry or change in any mutation entry does not confer any title to any immovable property. This is a well settled law. Merely because the respondent Nos. 1 and 2 were surreptitiously able to manage a change in mutation entry behind the back of the appellants, the same does not confer any right whatsoever to them. It is very important to note here that it is an admitted position that the appellants were given no notice whatsoever with regard to the aforesaid change in the mutation entry. Ultimately, in the year 1983 when the appellants came to know of the same, they got mutation entry changed back again in their own names, with regard to their share of 2 annas and 8 pie in the said well water. Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well settled law.
1. The brief facts leading to this second appeal are as under: In the year 1951, that is to say on 26th September, 1951, the appellants herein who were the original defendant Nos. 1 and 2, had purchased from the respondents, two acres of land from Survey No. 32/1 and had also purchased a share of 2 annas and 8 pie in a Rupee with regard to a well situated at Survey No. 32/3 for a total sum of Rs. 700/-. This sale deed was duly registered. There is absolutely no dispute between the parties with regard to this sale deed. The respondents herein also do not dispute the appellants title with regard to the two acres of land which is found in Survey No. 32/1. The only dispute is with regard to 2 annas and 8 pie share in the entire well which is situated at Survey No. 32/2. It appears that the respondents, without any notice whatsoever to the appellants, got the mutation entry changed with regard to the appellants right, title etc., regarding the aforesaid well. Only in the year 1983, the appellants came to know of the aforesaid unauthorised change in mutation entry and took objection to the same. It is the contention of the respondents that since the appellants did not actually use the well water and by virtue of change in the mutation entry, the respondents' claim that they have by adverse possession became sharer with regard to the 2 annas 8 pie share in the said well water. The respondent Nos. 1 and 2 had filed a suit being Civil Suit No. 244 of 1984 before the Court of Civil Judge at Phaltan, District Satara, against the present appellants as well as respondent Nos. 3 and 4. Respondent Nos. 3 and 4 were the supporting plaintiffs in that said suit. The plaintiffs suit was for cancellation of mutation entry with regard to the appellants 2 annas and 8 pie share in the suit well as well as for a permanent injunction restraining the present appellants from user of the said well water with regard to the 2 annas and 8 pie share in the said well water. The main contention of the plaintiffs in that suit was that, as the mutation entries were changed with regard to the names of the appellants in that said Survey No. 32/3 with regard to the well and that as the appellants had not used the said well water at all. By way of adverse possession, plaintiffs had become the owners with regard to the 2 annas and 8 pie share in the said well. The trial Court, after considering all the issues, came to the conclusion that the plaintiffs had failed to prove that they had become the owners with regard to the 2 annas and 8 pie share in the said well water by virtue of adverse possession. The trial Court also came to the findings that the plaintiffs had failed to prove their possession of the said suit property in preference to the persons having lawful title. The trial Court also came to the conclusion that mere change in mutation entry, does not confer any title upon the respondent Nos. 1 and 2 herein.
2. Against the said dismissal of the suit, the respondent Nos. 1 and 2 filed a Regular Civil Appeal No. 213 of 1987 before the 3rd Additional District Judge at Satara. The learned Appellate Court reversed the judgment of the trial Court, allowed the appeal and held that the mutation entry dated 26th September, 1983, was based on a sale-deed dated 26th September, 1951. The learned Appellate Court had also directed the present appellants that they should not either personally or through their agents, servants, relatives raise any obstruction to the enjoyment of the suit well by respondent Nos. 1 and 2 alongwith respondent Nos. 3 and 4.
3. The lower Appellate Court had very strongly relied upon various mutation entries and changes therein, which were caused by respondent Nos. 1 and 2 herein, to substantiate the contention of respondent Nos. 1 and 2 that as their names have been incorporated instead of the appellants and that due to the fact that the appellants had never used the well water, the respondents had become the owners by virtue of adverse possession with regard to the aforesaid 2 annas and 8 pie share in the well water. The lower Appellate Court had also taken into account that the appellants had not objected to any of the change of the mutation entry from 1951 till 1983, and as such, the contention of respondent Nos. 1 and 2 was accepted.
4. It is an admitted position that when the changes in mutation entries were made from 1951 onwards, the present appellants were not given any notice whatsoever in that behalf and only in the year 1983 when the appellants came to know of the said illegal change in the said mutation entry, they moved the Revenue Authority and by mutation entry No. 666 dated 26th September, 1983, the appellants were able to incorporate their own names based on the aforesaid sale-deed dated 26th September, 1951, with regard to the 2 annas and 8 pie share in the said well. Since the appellants were not given any notice whatsoever with regard to the mutation entries, the respondents' contention that the appellants ought to have objected, does not arise at all. Unless and until proper notice is given to the appellants with regard to the proposed change in the mutation entry, there was no case for the appellants to raise any objection.
5. Against this lower Appellate Court's order dated 16-11-1989, the present Second Appeal has been filed. The learned Counsel for the appellants had raised two substantial questions of law, viz;
(a) Mutation entry by itself, does not confer any title or legal status with regard to any immovable property.
(b) The Co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly.
6. It is an admitted position that as per sale-deed dated 26th September, 1951, the appellants herein are the owners with regard to 2 annas and 8 pie share in the said well and the balance left out i.e. 13 annas and 4 pie share is owned by all the respondents. The learned Counsel for the appellants had relied upon the following two authorities with regard to the first proposition that the mutation entry by itself does not establish any title to any immovable property. The first authority is State of Himachal
Pradesh v. Keshav Ram and others. The Apex Court in Para No. 4 has dealt with this issue in a very lucid and clear manner. The said Para No. 4 reads as under ;
"In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the courts below were justified in declaring plaintiffs' title. As has been stated earlier only piece of evidence on which the courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the Record of Right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the Record of Right prepared in the year 1949/50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned Counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below committed serious error of law in declaring plaintiffs' title on the basis of the aforesaid order of correction and the consequential entry in the revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs' suit stand dismissed. There will be no order as to costs."
7. From the above it is clear that the entries in revenue records can never form the basis of declaration of title with regard to immovable property. The learned Counsel also referred to another judgment of our Court Abasaheb Bali Gharge and another v.
Bataji Ramhari Gharge. In this case the same issue has been considered by our Court and has taken a similar view that the mutation entries or the entries in the Record of Rights are made only for the fiscal purpose of recovering revenues. The said entries cannot amount to transfer of the title of the holder of the property in favour of the person in whose name the entries are made. The para No. 8 of the said authority reads as under;
"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 Gharge 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 of the person in whose name the entries are made. Therefore, merely because Bali Pandurang Gharge, father of the present applicant No. 1, happened to make a Vardi application on 3rd of September, 1956 to delete his name and to enter the name of Sonatai Joti Gharge, 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 Gharge. Therefore, merely because the name of Sonatai Joti Gharge 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."
8. With regard to second substantial question of law, i.e. The co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned Counsel for the appellants had relied upon the Apex Court's judgment Mohammad Baqar and others v. Naim-un-Nisa Bibi and others. The Apex Court has very categorically held in para No. 7 as under;
"The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period."
9. The learned Counsel for the appellants also relied upon another judgment Patel Meghji Dayal & others v.
Patel Jivraj Pragji and others, with regard to the second substantial question of law. In para No. 2 this aspect has been considered as under:
"The possession of suit fields with defendant No. 1 was for and on behalf of co-parceners and hence it was a joint possession. Therefore, there can be no question of adverse possession at all. A coparcener cannot hold adversely to other coparceners."
10. From the above, it is explicitly clear that mere mutation entry or change in any mutation entry does not confer any title to any immovable property. This is a well settled law. Merely because the respondent Nos. 1 and 2 were surreptitiously able to manage a change in mutation entry behind the back of the appellants, the same does not confer any right whatsoever to them. It is very important to note here that it is an admitted position that the appellants were given no notice whatsoever with regard to the aforesaid change in the mutation entry. Ultimately, in the year 1983 when the appellants came to know of the same, they got mutation entry changed back again in their own names, with regard to their share of 2 annas and 8 pie in the said well water. Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well settled law.
11. Under these circumstances, the lower Appellate Court's order dt. 16-11-1989, is totally unsustainable in law as well as on facts. Accordingly, the said order of lower Appellate Court dated 16-11-1989, is set aside and the trial Court's order dated 20th February, 1987 whereby the Civil Suit No. 244 of 1984 which was dismissed, is restored back.
12. Second appeal is accordingly allowed. However, with no order as to costs.
13. Appeal allowed.
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Bombay High Court
Shri Bhaguji Bayaji Pokale & ... vs Shri Kantilal Baban Gunjawate & ... on 6 November, 1997
Equivalent citations: AIR 1998 Bom 114, 1998 (2) BomCR 5, 1998 (1) MhLj 276
1. The brief facts leading to this second appeal are as under: In the year 1951, that is to say on 26th September, 1951, the appellants herein who were the original defendant Nos. 1 and 2, had purchased from the respondents, two acres of land from Survey No. 32/1 and had also purchased a share of 2 annas and 8 pie in a Rupee with regard to a well situated at Survey No. 32/3 for a total sum of Rs. 700/-. This sale deed was duly registered. There is absolutely no dispute between the parties with regard to this sale deed. The respondents herein also do not dispute the appellants title with regard to the two acres of land which is found in Survey No. 32/1. The only dispute is with regard to 2 annas and 8 pie share in the entire well which is situated at Survey No. 32/2. It appears that the respondents, without any notice whatsoever to the appellants, got the mutation entry changed with regard to the appellants right, title etc., regarding the aforesaid well. Only in the year 1983, the appellants came to know of the aforesaid unauthorised change in mutation entry and took objection to the same. It is the contention of the respondents that since the appellants did not actually use the well water and by virtue of change in the mutation entry, the respondents' claim that they have by adverse possession became sharer with regard to the 2 annas 8 pie share in the said well water. The respondent Nos. 1 and 2 had filed a suit being Civil Suit No. 244 of 1984 before the Court of Civil Judge at Phaltan, District Satara, against the present appellants as well as respondent Nos. 3 and 4. Respondent Nos. 3 and 4 were the supporting plaintiffs in that said suit. The plaintiffs suit was for cancellation of mutation entry with regard to the appellants 2 annas and 8 pie share in the suit well as well as for a permanent injunction restraining the present appellants from user of the said well water with regard to the 2 annas and 8 pie share in the said well water. The main contention of the plaintiffs in that suit was that, as the mutation entries were changed with regard to the names of the appellants in that said Survey No. 32/3 with regard to the well and that as the appellants had not used the said well water at all. By way of adverse possession, plaintiffs had become the owners with regard to the 2 annas and 8 pie share in the said well. The trial Court, after considering all the issues, came to the conclusion that the plaintiffs had failed to prove that they had become the owners with regard to the 2 annas and 8 pie share in the said well water by virtue of adverse possession. The trial Court also came to the findings that the plaintiffs had failed to prove their possession of the said suit property in preference to the persons having lawful title. The trial Court also came to the conclusion that mere change in mutation entry, does not confer any title upon the respondent Nos. 1 and 2 herein.
2. Against the said dismissal of the suit, the respondent Nos. 1 and 2 filed a Regular Civil Appeal No. 213 of 1987 before the 3rd Additional District Judge at Satara. The learned Appellate Court reversed the judgment of the trial Court, allowed the appeal and held that the mutation entry dated 26th September, 1983, was based on a sale-deed dated 26th September, 1951. The learned Appellate Court had also directed the present appellants that they should not either personally or through their agents, servants, relatives raise any obstruction to the enjoyment of the suit well by respondent Nos. 1 and 2 alongwith respondent Nos. 3 and 4.
3. The lower Appellate Court had very strongly relied upon various mutation entries and changes therein, which were caused by respondent Nos. 1 and 2 herein, to substantiate the contention of respondent Nos. 1 and 2 that as their names have been incorporated instead of the appellants and that due to the fact that the appellants had never used the well water, the respondents had become the owners by virtue of adverse possession with regard to the aforesaid 2 annas and 8 pie share in the well water. The lower Appellate Court had also taken into account that the appellants had not objected to any of the change of the mutation entry from 1951 till 1983, and as such, the contention of respondent Nos. 1 and 2 was accepted.
4. It is an admitted position that when the changes in mutation entries were made from 1951 onwards, the present appellants were not given any notice whatsoever in that behalf and only in the year 1983 when the appellants came to know of the said illegal change in the said mutation entry, they moved the Revenue Authority and by mutation entry No. 666 dated 26th September, 1983, the appellants were able to incorporate their own names based on the aforesaid sale-deed dated 26th September, 1951, with regard to the 2 annas and 8 pie share in the said well. Since the appellants were not given any notice whatsoever with regard to the mutation entries, the respondents' contention that the appellants ought to have objected, does not arise at all. Unless and until proper notice is given to the appellants with regard to the proposed change in the mutation entry, there was no case for the appellants to raise any objection.
5. Against this lower Appellate Court's order dated 16-11-1989, the present Second Appeal has been filed. The learned Counsel for the appellants had raised two substantial questions of law, viz;
(a) Mutation entry by itself, does not confer any title or legal status with regard to any immovable property.
(b) The Co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly.
6. It is an admitted position that as per sale-deed dated 26th September, 1951, the appellants herein are the owners with regard to 2 annas and 8 pie share in the said well and the balance left out i.e. 13 annas and 4 pie share is owned by all the respondents. The learned Counsel for the appellants had relied upon the following two authorities with regard to the first proposition that the mutation entry by itself does not establish any title to any immovable property. The first authority is State of Himachal
Pradesh v. Keshav Ram and others. The Apex Court in Para No. 4 has dealt with this issue in a very lucid and clear manner. The said Para No. 4 reads as under ;
"In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the courts below were justified in declaring plaintiffs' title. As has been stated earlier only piece of evidence on which the courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the Record of Right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the Record of Right prepared in the year 1949/50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned Counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below committed serious error of law in declaring plaintiffs' title on the basis of the aforesaid order of correction and the consequential entry in the revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs' suit stand dismissed. There will be no order as to costs."
7. From the above it is clear that the entries in revenue records can never form the basis of declaration of title with regard to immovable property. The learned Counsel also referred to another judgment of our Court Abasaheb Bali Gharge and another v.
Bataji Ramhari Gharge. In this case the same issue has been considered by our Court and has taken a similar view that the mutation entries or the entries in the Record of Rights are made only for the fiscal purpose of recovering revenues. The said entries cannot amount to transfer of the title of the holder of the property in favour of the person in whose name the entries are made. The para No. 8 of the said authority reads as under;
"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 Gharge 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 of the person in whose name the entries are made. Therefore, merely because Bali Pandurang Gharge, father of the present applicant No. 1, happened to make a Vardi application on 3rd of September, 1956 to delete his name and to enter the name of Sonatai Joti Gharge, 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 Gharge. Therefore, merely because the name of Sonatai Joti Gharge 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."
8. With regard to second substantial question of law, i.e. The co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned Counsel for the appellants had relied upon the Apex Court's judgment Mohammad Baqar and others v. Naim-un-Nisa Bibi and others. The Apex Court has very categorically held in para No. 7 as under;
"The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period."
9. The learned Counsel for the appellants also relied upon another judgment Patel Meghji Dayal & others v.
Patel Jivraj Pragji and others, with regard to the second substantial question of law. In para No. 2 this aspect has been considered as under:
"The possession of suit fields with defendant No. 1 was for and on behalf of co-parceners and hence it was a joint possession. Therefore, there can be no question of adverse possession at all. A coparcener cannot hold adversely to other coparceners."
10. From the above, it is explicitly clear that mere mutation entry or change in any mutation entry does not confer any title to any immovable property. This is a well settled law. Merely because the respondent Nos. 1 and 2 were surreptitiously able to manage a change in mutation entry behind the back of the appellants, the same does not confer any right whatsoever to them. It is very important to note here that it is an admitted position that the appellants were given no notice whatsoever with regard to the aforesaid change in the mutation entry. Ultimately, in the year 1983 when the appellants came to know of the same, they got mutation entry changed back again in their own names, with regard to their share of 2 annas and 8 pie in the said well water. Similarly, the legal position that the co-owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well settled law.
11. Under these circumstances, the lower Appellate Court's order dt. 16-11-1989, is totally unsustainable in law as well as on facts. Accordingly, the said order of lower Appellate Court dated 16-11-1989, is set aside and the trial Court's order dated 20th February, 1987 whereby the Civil Suit No. 244 of 1984 which was dismissed, is restored back.
12. Second appeal is accordingly allowed. However, with no order as to costs.
13. Appeal allowed.
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