1998(1) ALL MR 541
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. RADHAKRISHNAN, J.
Noormohamed Yusuf Nakade Vs. Alisaheb Mohamed Mukadam
Second Appeal No.5 of 1990
4th November, 1997
Petitioner Counsel: Shri G. R. REGE
Respondent Counsel: Shri S. M. KAZI
(A) Bombay Khoti Abolition Act (1949), S.4(1)(d)(i) r/w First Proviso - Khoti nisbat land - No evidence to prove payment of occupancy price by respondent as required by proviso - Respondent not in possession of land in question -Held, respondent cannot become owner of land in question merely by virtue of mutation entries. 1995(1) Bom.C.R. 542 and AIR 1989 SC 1809 foll.
(B) Civil P.C. (1908), O.41, R.33 - Powers of appellate court - Suit for injunction restraining defendant from interfering with plaintiff's possession - Plaintiff not in possession of suit land - Actual physical possession forming condition precedent for getting occupancy rights - Held, relief of possession ought not to have been granted by lower appellate court without cross-objections being filed in that regard. (1979) I SCC 166 foll.
Powers of appellate court - Exercise of powers in favour of respondent who has not filed appeal or cross-objections. (Para 5)
The respondent herein was the original Plaintiff who had filed a simplicitor suit for a perpetual injunction restraining the Defendant i.e. the Appellant herein from causing any obstruction to his possession of the suit land. In the said suit the Respondent had also prayed for the relief that if he was not in possession, a decree for possession should be passed in his favour. This was Regular Civil Suit No.76 of 1983. It was the case of the Respondent before the trial court that the land was originally in possession of one Hamid Fakirmiya Mukadam and after a family partition the plaintiff, namely the Respondent herein was in possession and became owner and kabjedar of the land. This pertains to Survey No.303A Hissa No.3 admeasuring 5 Gunthas of land situated at village Karabude. It is an admitted position that this land was originally "Khoti land" and it was also "Khoti nisbat land" as per the provisions of Bombay Khoti Abolition Act, 1949. Section 3 of the said Act abolishes the Khoti tenure and Section 4 confers legal rights on its tenants to be the occupants as per the provisions of Maharashtra Land Revenue Code. The trial Court framed basically two issues i.e. whether the Respondent herein has the exclusive title to the suit land as a purchaser of Khoti nisbat land and also whether the Plaintiff proves that he was in possession of the suit land and in view thereof whether the Plaintiff is entitled to a permanent injunction. The trial Court had primarily relying on the mutation entries held that the Respondent herein was the owner of the suit land. The trial Court also comes to the conclusion that Respondent herein was in possession of the suit land. In view of the above findings the trial Court granted a relief of permanent injunction restraining the Appellant herein from disturbing the possession of the Respondent herein.
2. Against the said order, Appellant preferred an appeal being Appeal No.74 of 1987 with regard to the above decree dated 29th September, 1987 passed in Regular Civil Suit No.76 of 1983. The lower Appellate Court also strongly relied on mutation entries and held that the Respondent herein had become the kabjedar of the suit land as per the provisions of the Bombay Khoti Abolition Act, 1949. Whereas, as far as the possession is concerned the lower Appellate Court holds that the Respondent herein was not in possession of the said land and also holds that he was not entitled to any perpetual injunction in that behalf. Ultimately, the appeal was dismissed after recording the findings that the Respondent was not in possession of the suit land but lower Appellate Court suo motu on its own granted relief to the Respondent that he be put in possession and rejected the relief of perpetual injunction, without any cross-objections being filed by the Respondent.
3. Shri Rege, learned Counsel for the Appellant, took me through the judgment and order of both the lower Courts which have strongly relied upon the mutation entries and only on the basis of mutation entries, both the Courts below have come to the conclusion that the Respondent herein is owner of the said suit land.
4. As per Section 3 of the Bombay Khoti Abolition Act, 1949, it clearly provides that wherever Khoti tenure prevails in the districts of Ratnagiri and Kolaba (now known as district Raigad) it be deemed to have been abolished. Section 4 of the said Act provides for acquisition of legal rights with regard to Khoti land as under:
"4. (1) (a) In the case of khoti khasgi land, the khot;
(b) in the case of a dhara land, the dharekari or quasidharekari;
(c) in the case of land held by a permanent tenant, the permanent tenant;
(d) (i) in the case of khoti nisbat land, any tenant in possession of the land; and
(ii) If there be no tenant in possession of such land, the khot;
shall be primarily liable to the State Government for the payment of land revenue due in respect of such land held by him and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as an occupant under the Code or any other law for the time being in force;
Provided that in the district of Ratnagiri, in the case of a tenant (other than a permanent tenant) in the possession of khoti nisbat land, such tenant shall be entitled to the rights of an occupant on payment to the khot of the occupancy price equivalent to six multiples of the survey assessment fixed on the land;
Provided further that in the district of Kolaba, in the case of a tenant (other than a permanent tenant) in the possession of khoti nisbat land such tenant, and in the case of a khot in respect of khoti nisbat land in his actual possession such khot, shall be entitled to the rights of an occupant on payment to the State Government of the occupancy price equivalent to six multiples of the survey assessment fixed on the land.
(2) The occupancy price payable under this section shall be in addition to the amount of the commuted value payable by any person under Section 5.
(3) With effect from the date on which this Act comes into force, the land in respect of which any person is entitled to the rights of an occupant under sub-section (1), shall be free from the liability for the payment of khot's dues in respect thereof, and all rights of a khot in his capacity as a khot in such land shall be deemed to have been extinguished.
(4) Nothing in sub-section (3) shall in any way affect the liability of any person to pay in respect of the land in his possession the amount of khot's dues for the current year ending on the 31st day of July 1950 and the amount of the arrears of such dues for any previous year in respect of the said land."
From the above provisions Section 4(1)(d)(i) read with First proviso it is clear that in case of Khoti nisbat land any tenant in possession of the land shall become entitled to the rights as occupant only on payment to the khot of the occupancy price equivalent to six multiples of the survey assessment fixed on that land. In fact, in this case there is no proof or evidence to conclusively show that such payments were made as contemplated in the said proviso. In fact, if proof of such payment is not shown, which pre-condition is mandatory then such a person in possession cannot get rights of an occupant as per the provisions of Maharashtra Land Revenue Code. Both the lower Courts have strongly relied on mutation entries and have come to the conclusion that the Respondent herein has become the owner of the suit land merely by virtue of those mutation entries. In this behalf Shri Rege the learned Counsel for the Appellant relied on a judgment of this Court namely, Abasaheb Bali Gharge Vs. Balaji Ramhari Gharge reported in 1995(1) Bom.C.R. 542. This Court has very categorically held in para 8 as under:
"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."
Shri Rege also relied on a judgment of the Apex Court in a case Corpn. of Bangalore City Vs. M. Papaiah reported in AIR 1989 Supreme Court 1809. The Supreme Court in para 5 has categorically observed with regard to this issue as under:
"It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law."
In view of the aforesaid position of law Shri Rege strongly contends that the finding of both the lower Courts and especially the lower Appellate Court holding in para 17 that there is a presumption of proof with regard to the entries and as such said presumption should be drawn is patently erroneous. These entries do not confer any legal right whatsoever and they are mere revenue entries meant for fiscal purposes only. In any event as per Section 4(1)(d)(i) r.w 1st proviso, there is no conclusive proof that payment of occupancy price as contemplated therein, then only the person in possession becomes occupant as per the provisions of Maharashtra Land Revenue Code. Under these circumstances, the finding of both the lower Courts holding the Respondent herein as owner of the said suit land is patently erroneous and not sustainable in law at all.
5. As far as possession is concerned, the lower Appellate Court has rightly held that the Respondent is not in possession and has given a finding that the Respondent was not in possession at all but in the said appeal granted a relief of possession to the Respondent even without Respondent filing any cross objections in that regard. Shri Rege contends that the lower Appellate Court had no jurisdiction whatsoever to grant possession of the suit land without even cross objections being filed in this behalf. He relied on a judgment of the Supreme Court in Tummalla Atchaiah Vs. Venka Narasingarao reported in (1979) 1 Supreme Court Cases 166. In view of the provisions of Order 41 Rule 33 unless there are cross objections, such a relief ought not to have been granted.
6. Shri Kazi, learned Counsel for the Respondent strongly contended that mutation entries by themselves constituted the title, as such his client had become the owner. The learned Counsel could not surmount the difficulty that if his client was not in actual possession, then as per provisions of Section 4(1)(d)(i) read with first proviso to Bombay Khoti Abolition Act, 1949, his client could not claim the benefit of these provisions, as actual physical possession is a condition precedent necessary for application of those provisions. The learned Counsel also conceded that his client has not challenged the finding of the lower Appellate Court that the Respondent was not in possession of the land. The learned Counsel also could not show any proof or evidence of payment of occupancy price as contemplated in the first proviso of Section 4(1) of Bombay Khoti Abolition Act, 1949.
7. From the above it is clear that both the lower Courts have merely relied on mutation entries whereby title cannot be conferred on the Respondent which approach is patently erroneous; contrary to the law laid down by the Supreme Court and our High Court, as mentioned hereinabove.
8. Under these circumstances this Appeal will have to be allowed and the trial Court finding that the Respondent is the owner as well as the lower Court's finding that the Respondent is the owner is hereby set aside. As far as the possession of the land is concerned the lower Appellate Court has categorically held that the Respondent was not in possession of the suit land and in view thereof the lower Appellate Court had refused to grant perpetual injunction in favour of the Respondent. This part of the lower Appellate Court's order has not been challenged by the Respondent by any cross objection as such the same stands. Under these circumstances the findings of both the lower Appellate Courts that the Respondent is the owner of the said suit land is set aside, as a consequence the lower Appellate Court order directing that the Plaintiff namely the Respondent herein be put in possession is also set aside. Decrees of both the lower Courts are set aside and the suit of the Plaintiff stands dismissed. As a consequence the present Appeal is allowed, however, with no order as to costs.