NARAYAN LAXMAN PATILversusM/S GALA CONSTRUCTION COMPANY PRIVATE LIMITED & ORS.

                    [2015) 11 S.C.R. 861


                 NARAYAN LAXMAN PATIL                           A
                              v.
    M/S GALA CONSTRUCTION COMPANY PRIVATE
                 LIMITED &ORS.
               Civil Appeal No.8399 of 2015                     B

                    OCTOBER 08, 2015
       [RANJAN GOGOi AND R.K. AGRAWAL, JJ.]
                                                                c
        Mutation: Claim by appellant for entry in record of rights
on the ground that he was in uninterrupted possession of the
suit land since long along with six other persons and
cultivating paddy crop on the said land- Held: While seeking
entry in the .record of rights, the appellant did not spell out
1-/is status or claim or his capacity in which he sought to get D
his name entered - Maharashtra Land Revenue Code -
ss.2(12), 148, 149, 150.
      Legislation: When the statute states that a duty has to
be performed or an enquiry has to be conducted in a
particular manner, it has to be done in that manner alone.      E
     Dismissing the appeal, the Court

       HELD: 1. To exercise the right under section 148
read with Sections 149 and 150 of the Maparashtra Land
Revenue Code for entering one's name in the Record of F
Rights, the applicant has to be a holder, occu :>ant, owner,
mortgagee or tenant. Such a right is also a 1ailable to a
person acquiring interest in the property by ;uccession,
survivorship, inheritance, partition, purchase mortgage, G
gift, lease or otherwise. Merely a holder or occupant does
not meet the requirements· of law for exercising such a
right. Section 2(12) of the Code, makes itclearthatto be
a "land holder" or "holder of land" means to be lawfully
in possession of land, whether such possession is H
                            861
862         SUPREME COURT REPORTS               (2015] 11 S.C.R.


A  actual or not and as per Section 2(23) "occupant" means
   a holder in actual possession of unalienated land. It was,
   therefore, necessary for the appellant to prove that his
   possession or occupation over the suit land was lawful
   or he had come in possession by a legal conveyance/
 B title or any other instrument like receipt etc. to which the
   Respondent No. 1 was a party or at its instance. [Paras
   15, 18] [876-C;E-G]
              2. Merely saying that Respondent No. 1 or the
C     original owner did not object at any time to the
      possession, does not make his possession lawful, even
      if it is accepted that he was in possession. The appellant
      has to prove his title of possession by pointing out that
      it was lawful and if .such requirement could not be
 D    proved, mutation entry is required to be cancelled.
      Unless the officer concerned was satisfied that the
      possession of the appellant was lawful such an entry
      could not have been made irrespective of whether the
      original owner;:; appeared and contested the plea and
 E    more so when the officer was performing a statutory
      duty. When the statute states that a duty has to be
      performed or an enquiry has to be conducted in a
      particular manner, it has to be done in that manner alone
 F    and it was nece~sary for the Tehsildar to ensure that the
      requirements of the Code were satisfied by the
      petitioners' predecessor. Since appellant and others
      never claimed that they had any title to the land, entering
      their names in the 'Record of Rights' was not at all
 G    justified and, therefore, the Mutation Entry could not have
      been made in the said record. Hence, the Mutation Entry
      has rightly been set aside. [Paras 19, 20] [877-A-D, F]
           Bansrajidevi wdlo Bhuval Singh Ramniranjan
           Singh and Others v. Mis Byramjee Jeejeebhoy
 H
 NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 863
                   PVT. LTD.

       Pvt. Ltd. and Others 2006 (6) Mh.L.J. 95 -                   A
       approved.

                         Case Law Reference

 2006 (6) Mh.L.J. 95                approved         Para 17
                                                                    B
      CIVIL APPELLATE JURISDICTION: Civil Appeal No ..
 8399 of 2015

      From the Judgment and Order dated 22.06.2010 of the
 High Court of Judicature at Bombay in Appeal No. 245 of 2007       C

       Abha R. Sharma for the Appellant.

      Shekhar Naphade, Parimal Shroff, Ankur Saigal, Mahesh
 Agarwal, E. C. Agrawala, R. N. Keshwani, Ram Lal Roy for
 the Respondents.                                                   D

       The Judgment of the Court was delivered by

       R.K. AGRAWAL, J. 1. Leave granted

        2. This appeal is directed against the final judgment and   E
  order dated 22.06.2010 passed by the Division Bench of the
  High Court of Judicature at Bombay in Appeal No. 245 of 2007
  iii Writ Petition No. 2103 of 2003 whereby the High Court
  allowed the appeal filed by the respondents herein against
  the judgment and order dated 03.08.2006 passed by the             F
  learned single Judge of the High Court in Writ Petition No.
• 2103 of2003.

       3. Brief facts:
      (a) The land in question, admeasuring 11 acres out of G
      the land bearing Survey No. 221 of Village Eksar, Taluka
      Borivali, Maharashtra, originally belonged to one
      Kamlakar Narayan Sam ant. A portion of the said land
      was in the possession of Narayan Laxman Patil-the
                                                                    H
864   SUPREME COURT REPORTS                   [2015] 11 S.C.R.


A     appellant herein who along with six other persons used
      to cultivate paddy crop on the said land.

      (b) On 12.09.1986, the appellant herein moved an
      application before the Tehsildar, Borivali that since he
B     and 6 other persons were cultivating paddy and were in
      possession of the suit land for the last 15-20 years, their
      names be entered into the "other rights" column of the 7/ ·
      12 extract in respect of 11 acres of land out of Survey
      No. 221 of Village Eksar.
c     (c) Notice of the said application was issued to the
      landlord- Kamlakar Narayan Samant. On 06.03.1987,
      Mutation Entry No. 4601 was made recording the name
      of the appellant herein along with six other persons in
      "other rights" column of the Record of Rights mentioning
D
      that the notice of the said application was duly served
      upon the original owner but no objection received.

      (d) M/s Gala Construction Co. Pvt. Ltd.-Respondent No.
      1 and the original owner-Kamlakar Narayan Samant
E     entered into an agreement for sale dated 15.05.1978
      with regard to the land situated at Village Eksar.
      Respondent No. 1 further filed a Short Cause Suit No.
      1797 of 1981 before the High Court of Judicature at
      Bombay for a declaration that there is a valid, subsisting
F
      and binding contract between the parties.

      (e) By order dated 12.10.1989, learned single Judge of
      the High Court allowed the same in favour of Respondent
      No. 1 herein and on 19.10.1995, Respondent No. 1
G     obtained a decree on the basis of the settlement reached
      between the parties.

      (f) After the mutation entry, the owner-Kamlakar Narayan
      Samant wrote letters dated 13.08.1987 and 13.10.1987
H     to the Tehsildar, Taluka Borivali that certain persons have
NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 865
          PVT. LTD. [R.K.AGRAWAL, J.]

   claimed themselves to be in possession of the said A
   property as tenants by way of right of either agricultural
   activities or catching fish and their claim is fraudulent and
   bogus. It was also mentioned in the said letters that he
   has not given consent to anyone to give statement on his
   behalf and to receive notices of the proceedings.             B

    (g) Against the entry.in
                         \
                             the register of 'Record of Rights",
    Respondent No. 1 h,erein filed a Revision Application
    being DRN/RTS/3/20.00 before the Sub-Divisional
    Officer, Mumbai, Subu~an District, Bandra (E). By order        c
    dated 30.12.2000, the Sub-Divisional Offiter al!owed the
    revision while cancelling the mutation entry dated
    06.03.1987.

    (h) Aggrieved by the order dated 30.12.2000, the D
    appellant challenged the same by way of appeal being
    No. C/RTS/A-3/2001 before the Deputy Collector
    (Appeals), Mumbai Suburban· District which got
    dismissed by judgment and order dated 31.07.2001.

    (i) Feeling aggrieved, the appellant herein filed a Revision   E
    Application being No. Appeal/Desk/RTS/Revision/66/01
    before the Additional Commissioner, Konkan Division,
    Mumbai. The Additional Commissioner, by order dated
    14,03.2003, allowed the revision application.
                                                                   F
   U) Respondent No. 1, aggrieved by allowing the revision
   petition, filed a Writ Petition being No. 2103 of 2003
   before the High Court of Bombay. Learned single Judge
   of the High Court, by order dated 03.08.2006 dismissed
   the same.                                                       G

   (k) Being aggrieved by the aforesaid order, the
   Respondent No. 1 filed an appeal being No. 245 of 2007
   in Writ Petition 2193 of 2003 before the High Court. The
   Division Bench of the High Court, by order dated. H
866         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A           22.06.2010, allowed the appeal filed by the Respondent
            No. 1 herein and set aside the mutation entry No. 4601
            dated 06.03.1987 in the "other rights" column.

           (I) Against the said order, the appellant herein has
B          preferred this appeal by way of special leave before this
           Court.

         4. Heard Ms. Abha R. Sharma, learned counsel for the
    appellant and Mr. Shekhar Naphade, learned senior counsel
C · forthe respondents.

           5. The only point for consideration in this appeal is
      whether the Mutation Entry No. 4601dated06.03.1987 in the
      "other rights" column of the 'Record of Rights' is valid or not.

o          Rival Submissions:
        6. Learned counsel for the appellant submitted that the
  appellant is in possession of the land in question for the last
  15-20 years and used to cultivate crops and fishing on the
E same. The original landlord/owner-Kamlakar Narayan Samant
  was aware of the fact that the appellant was in possession of
  the said land but he never raised any objection whatsoever on
  such possession and use of land. Vide Mutation Entry dated
  06.03.1987 being No. 4601, the name of the present appellant
F along with six other persons was entered in the "other rights"
  column of the 'Record of Rights' by the Tehsildar, Borivali
  following due process of law.

        7. Learned counsel for the appellant further submitted
  that notices were sent to Kamlakar Narayan Samant as well
G as his constituted attorney-Laxman Anu Patil through Tehsil
  Office, Borivali, however, no reply was given by the owner
  though he received the same. She contended that the
  constituted attorney of original land ov.tner remained present
H before the Talathi and had admitted the possession of the
 NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 867
           PVT. LTD. [R.K.AGRAWAL, J.]

  appellant on the said land in his statement dated 22.01.1987. A
  After carrying out site inspection of the said land and
· preparation of panchnama and recording the statements, the
  mutation entry had been recorded by adopting proper
  procedure. It is further contended that the appellant is an
                                         •
  agricultural tenant in respect of the suitland, hence, the names B
  have been rightly brought on record by the mutation entry. Since
  the name of the appellant along with six other persons has
  been brought on record by following due process of law, they
  are in settled un-interrupted possession of the above property
  for more than 40 years.                                          C

       8. Learned counsel further submitted that even though
 the original owner was aware of the fact that the name of the.
 appellant along with others is being recorded in the other rights
 column, he did not take any steps. Further, when it was D
 informed to the owner that he had the remedy of appeal, the
 fact remains that he had not availed the same against the
 mutation entry rather he filed a revision. Also, the revision,
 which was filed by the owner after a long time from the date of
 the mutation entry, cannot be regarded as being.instituted within E .
 a reasonable period of time. Finally, she submitted that an
entry in the record of rights in the register of mutations shall be
presumed to be.true until the contrary is proved or a new entry
is lawfully substituted therefor.
                                                                    F
       9. In reply, learned senior counsel for the respondents
submitted that proper procedure was not adopted before the
Tehsildar in respect of sanction of mutation entry. There is no.
mention as regards the status or nature of acquisition of any
right or interest or nature of alleged possession and proportion G
or share therein. The notices were issued to the constituted
attorney instead of issuing it to the original owner. The
procedure of formal enquiry was not followed which shows that
there was collusion between the parties.The original owner,
vide letter dated 10.02.1987, stated that he has given power H
868         SUPREME COURT REPORTS                    (2015] 11 S.C.R.


A to LaxmanAnu Patil for recovery of rents only and any transfer
  of 'Record' on the basis of the statements made by him would
  be illegal. Further, on 13.10.1987, Kamlakar Narayan Samant
  informed the Tahasildar, Borivali that Laxman Anu Patil is his
  employee and had been given power to recover the rent in
B respect of the court decree and to protect the property from
  encroachment. As far as the suit land is concerned,
  Respondent No. 1 has exclusive possession of the same and
  the claim of the appellant that he along with six others was
  cultivating or fishing therein and were in possession of the suit
C property is fraudulent. The procedure of formal enquiry was
  not followed. From this conduct, it appears that he has collusion
  with the appellant. In the Mutation Entry No. 4601, there is no
  mention as regards the status or nature of acquisition of any
  right or interest or nature of alleged possession and proportion
0
  or share therein.

            10. The land is 'khajan (marshy)' land and is not fit for
      cultivation at any time. Therefore, the claim of the appellant for
      entering names in the record of rights pertaining to the said
E     !and does not arise at all. The claim of the appellant that they
      were cultivating saline lands is baseless and liable to be
      rejected. It was also contended before the court that the sub-
      Divisional Officer is competent to take decision on the revision
      application under Section 257 of the Maharashtra Land
F     Revenue Code, 1966.

            Discussion:

         11. From the rival submissions, it is undisputed that the
G appellant along with others was in uninterrupted possession
  of the suit land since long. The appellant herein moved an
  application before the Tehsildar, Borivali that since he and 6
  other persons were cultivating paddy and were in possession
  of the suit land forthe last 15-20 years, their names be entered
H into the "other rights" column of the 7/12 extract in respect of
NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 869
         . PVT. LTD. [R.K.AGRAWAL, J.]

11 acres of land out of Survey No. 221 of Village Eksar. Due A
notices were said to be served to the landlord- Kamlakar
Narayan Samant and on 06.03.1987, Mutation Entry No. 4601
was made recording the name of the.appellant herein along
with six other persons in "other rights" column of the Record of
Rights.                                                          B

       12. It is also relevant to mention that Mis Gala Construction
Co. Pvt. Ltd.-Respondent No. 1 and the original owner-
Kamlakar Narayan Samant entered into an agreement for sale
dated 15.05.1978 with regard to the lana situated at Village C
Eksar and Respondent No. 1 filed a Short Cause Suit No.
1797of1981 before the High Court for a declaration thatthere
is a valid, subsisting and binding contract between the parties
which was granted on 12.10.1989 and in pursuance of the
same, on 19. 10. 1995 a decree was obtained by Respondent D
No.1.

      13. Vide Mutation Entry being No. 4601 dated
06.03.1987, the name of the present appellant along with six
other persons was entered in the "other rights" column of the E
'Record of Rights'. Respondent No. 1 herein challenged the
same in revision before the Sub-Divisional Officer, Mumbai,
Suburban District, Bandra (E). By order dated 30.12.2000,
the Sub-Divisional Officer allowed the revision while cancelling
the mutation entry dated .06.03.1987. Further, the appellant F
challenged the same in an appeal before the Deputy Collector
(Appeals), Mumbai Suburban District which got dismissed by
judgment and order dated 31.07.2001. The appellant herein
further filed a revision before the Additional Commissioner,
Konkan Division, Mumbai which was allowed on 14.03.2003. G

      14. In view of the claim of the appellant herein that the
mutation entry was recorded after following the due process
of law, it was submitted that the notices were served to the
original owner, however, he did not reply the same or objected    H
870         SUPREME COURT REPORTS                    (2015) 11 S.C.R.


A to it. The Extra Awai Karkun, Borivali, carried out the inspection
  of the suit land on 06.05.1987 and drawn the site inspection
  not<! in the presence of panchas on 11.05.1987 and certified
  the mutation entry. On 13.10.1987, the original owner informed
  the Tehsildar, Borivali that Shri Laxman Anu Patil is his
B employee and had been given power to recover rent in respect
  of the court decree and to protect the property from
  encroachment. It was further informed that so far as suit land
  is concerned, the original owner has exclusive possession of
  the said land. It was·also submitted that the constituted attorney
C of original land owner remained present before the Talathi and
  had admitted the possession of the appellant on the said land
  in his statement dated 22.01.1987. On a plain reading of the
  Power of Attorney, it can easily be seen that Laxman Anu Patil
  has no right to give any statement on behalf of the original
0
  owner in respect of the suit land. Therefore, the claim of the
  appellant claiming tenancy over the suit land is baseless and
  the tenancy is created without any evidence. The mutation
  entry has been recorded keeping in view the statement of power
E of attorney holder-Laxman Anu Patil.

            15. The Tehsildar, Borivali, failed to appreciate that while
      seeking to enter the name of the appellant in 'Record of Rights'
      and granting such request, the appellant had not spelt out his
      status or claim or his capacity in which he sought to get his
F     name entered and while entering their names in the relevant
      column, the provisions of Maharashtra Land Revenue Code
      and the Rules were ignored.

            16. In this context, it is relevant to note the following
G     provisions of the Maharashtra Land Revenue Code, 1966
      which are as under:-

           "2. Definitions.-ln this Code, unless the context
           otherwise requires -
H
NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 871
          PVT. LTD. [R.K.AGRAWAL, J.)

      (12) "to hold land" or "to be a landholder" or"holderof A
      land" means to be lawfully in possession of land,
      whether such possession is actual or not.

      (23) "occupant" means a holder in actual possession
      of unalienated land, other than a tenant or Government     B
      lessee: provided that, where a holder in actual
      possession is a tenant, the landholder or the superior
      landlord, as the case may be, shall be deemed to be
      the occupant.

      (24) "occupation" means possession.
                                                                 c
      (25) "to occupy land" means to possess or to take
      possession of land.

      148. Record of Rights:-A record of rights shall be         D
      maintained in every village and such record shall
      include the following particulars:-

      (a) the names of all persons (other than tenants) who
      are holders, occupants, owners or mortgages of the         E
      land or assignees of the rent or revenue thereof;

      (b) the names of all persons who are holding as
      Government lessees or tenants including tenants within
      the meaning of the relevant tenancy law;
                                                                 F
      (c) the nature and extent of the respective interests of
      such persons and the conditions or liabilities, if any,
      attaching thereto;

      (d) the rent or revenue, if any, payable by or to any of G
      such persons;

      (e) such other particulars as the State Government may
      prescribe by rules made in this behalf, either generally
      or for purposes of any area specified therein.
                                                                 H
872   SUPREME COURT REPORTS                    [2015] 11 S.C.R.


A      149. Acquisition of rights to be reported.-Any
       person acquiring by succession, survivorship,
       inheritance, partition purchase, mortgage, gift, lease
       or otherwise, any right as holder occupant, owner,
       mortgagee, landlord, Government lessee or tenant of
 B     the land situated in any part of the State or assignee
       of the rent or revenue thereof, shall report orally or in
       writing his acquisition of such right to the Talathi within
       three months from the date of such acquisition, and
       the said Talathi shall at once give a written
c      acknowledgement of the receipt of such report to the
       person making it: ....
       15.0. Register of mutations and register of
       disputes cases: - (1) The Talathi shall enter in a
D      register of mutations every report made to him under
       section 149 or any intimation of acquisition or transfer
       under section 154 or from any Collector.

       (2) Whenever a Talathi makes an entry in the register
       of mutations, he shall at the same time post up a
E
       complete copy of the entry in a conspicuous place in
       the Chavdi, and shall give written intimation to all
       persons appearing from the record of rights or register
       or mutations to be interested in the mutation, and to
 F     any other person whom he has reason to believe to
       be interested therein.

       (3) When any objection to any entry made under sub-
       section ( 1) in the register of mutations is mad a either
       orally or in writing to the Talathi, it shall be the duty of
G      the Talathi to enter the particulars of the objections in
       a register of disputed cases. The Talathi shall at once
       give a written acknowledgement for the objection to
       the person making it in the prescribed form.

 H     (4) Disputes entered in the register of disputed cases
                                                                 •

NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 873
          PVT. LTD. [R.K.AGRAWAL, J.)

       shall as far as possible be disposed of within one year A
       by a revenue or survey officer not below the rank of an
       Aval Karkun. and orders disposing of objections
       entered in such register shall be recorded in the
       register of mutations by such officer in such manner
       as may be prescribed by rules made by the State B
       Government in this behalf.

       (5) The transfer of entries from the register of mutation
       to the record of rights shall be effected subject to such
       rules as may be made by the State Government in               C
       this behalf.

       Provided that, an entry in the register of mutations shall
       not be transferred to the record of rights until such entry
       has been duly certified.                                      o
       (6) Entries in the register of mutations shall be tested
       and if found correct, or after correction, as the case
       may be, shall be certified by any revenue or survey
       officer not below the rank of an Aval Karkun in such
                                                                     E
       manner as may be prescribed:

       Provided that, entries in respect of which there is no
       dispute may be tested and certified by a Circle
       Inspector.
                                                                     F
       Provided further that no such entries shall be certified
       unless notice in that behalf is served on the parties
       concerned.

       (7) The State Government may direct that a register
       of tenancies shall be maintained in such manner and G
       under such procedure as may be prescribed by rules
       made by the State Government in this behalf."

   17. The aforesaid provisions were considered by the
Bombay High Court in Bansrajidevi wdlo Bhuval Singh                  H
      •

874        SUPREME COURT REPORTS                    [2015] 11 S.C.R.


A     Ramniranjan Singh and Others vs. Mis Byramjee
      Jeejeebhoy Pvt. Ltd. and Others 2006 (6) Mh.l.J. 95
      wherein it was held as under:-

           "8. It is thus clear that to exercise the right under section
B          148 read with Sections 149 and 150 of the Code for
          entering one's name in the Record of Rights, the applicant
          has to be a holder, occupant, owner, mortgagee or tenant.
          Such a right is also available to a person acquiring
          interest in the property by succession, survivorship,
C         inheritance, partition, purchase mortgage, gift, lease or
          otherwise. Bhuvalsingh claimed that he was in
          occupation of 27 acres of land and he was holder of the
          same right from 1950 and, therefore, his claim was
          required to be entered in the Other Rights column. These
D         contentions have been rejected by the Deputy collector
          and confirmed bytheAdditional Divisional Commissioner
          and rightly so. Merely a holder or occupant does not meet
          the requirements of law for exercising such a right.
          Section 2(12) of the Code, as reproduced hereinabove.
E         makes it clear that to be a "land holder" or "holder of land"
          means to be lawfully in possession of land. whether such
          possession is actual or not and as per section 2(23)
          "occupant" means a holder in actual possession of
          unalienated land. It was, therefore. necessary for
F
          Bhuvalsingh to prove that his possession or occupation
          over the suit land was lawful or he had come in
          possession by a legal conveyance/title or any other
          instrument like receipt etc. to which the respondent No.
          1 was a party or at its instance. Merely saying that none
G
          of the officers of the respondent No. 1 or its agents or
          representatives objected at any time to his possession
          does not make his possession lawful. even if it is
          accepted that he was in possession. He has to prove
H         his title of possession by pointing out that it was lawful
NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 875
          PVT. LTD. [R.K.AGRAWAL, J.]

    and if such requirement could not be proved, the revenue        A
    authorities below were right in calling Bhuvalshing as the
    encroacher on the private land who was entitled to
    exercise such a right. The Tehsildar and subsequently
    the SDO did not consider the main issue as to whether
    Bhuvalsingh was in lawful possession of the suit land.          B.
    Under the Maharashtra Land Revenue Code, the
    Government of Maharashtra has framed Maharashtra
   ·Revenue Record of Rights and Registers (Preparation
    and Maintenance) Rules, 1971 and Rule 10 thereunder
    gives form of register of mutations. Rule 11 is regarding       C
    making entries in register of mut:::tions. Rule 12 is
    regarding recording mutations in certain cases, Rule 13
    states that whenever an entry is made in the register of
    mutations under s1:1b-section (1) of section 15Ci'in relation
                                                                    0
    to any land, the Talathi shall indicate, in pencil the number
    of that mutation entry against the entry relating to that
    land appearing in the record of rights with the remark
    that the mutation entry has not been duly certified. After
    this pencil entry is certified, it becomes an ink entry         E
    confirming the entry made in pencil. It was necessary for
    the Tehsildar and the SDO to test Bhuvalsingh's
    applieation on remand on the basis of the provisions of
    sections 2(12), 2(23) and 148, 149 and 150 of the Code
    and both these officers appear to have been overwhelmed         F
    by the report or the Tehsildar's satisfaction by personal
    visit to the land that Bhuvalsingh was iri possession of
    the said land. Recording the claimant's name in the other
    rights column merely on the basis of possession is
    nothing short of perversity and unless the officer              G
    concerned was satisfied that the said possession was
    lawful such an entry could not have been done irrespective
    cif whether the original owners appeared and contested
    the plea and more so when the officer was performing a
                                                                    H
876          SUPREME COURT REPORTS                    [?.015] 11 S.C.R.


A           statutory dutv. When the statute states that a duty has to
            be performed or an enquiry has to be conducted in a
            particular manner, it is well settled, it has to be done in
            that manner alone and it was necessary for the Tehsildar
            to ensure that the requirements of the Code were satisfied
B           by tt"\e petitioners' predecessor".             (emphasis
            supplied by us)

             18. It is thus clear that to exercise the right under section
      148 read with Sections 149 and 150 of the Code for entering
C     one's name iri the Record of Rights, the applicant has to. be a
      holder, occupant, owner, mortgagee or tenant. Such a right is
      also available to a person acquiring interest in the property by
      succession, survivorship, inheritance, partition, purchase
      mortgage, gift, lease or otherwise. We fully approve the view
D     taken by the Bombay High Court in the aforesaid decision.
      The appellant claimed that he along with others is in possession
      of the suit land forthe last 15-20 years and, therefore, his claim
      was required to be entered in the "Other Rights" column. This
      contention has been rejected by the Sub-Divisional Officer as
E     well as by the Deputy Crnlector (Appeals) but confirmed by
      the Additional Commissioner. Merely a holder or occupant
      does not meet the requirements of law for exercisiQg such a
      right. Section 2(12) of the Code, as reproduced hereinabove,
      makes it clear that to be a "land holder" or "holder of land"
F     means to be lawfully in possession of land, whether such
      possession is actual or not and as per Section 2(23) "occupant"
      means a holder in actual possession of unalienated land. It
      was, therefore, necessary for the appellant to prove that his
G     possession or occupation over the suit land was lawful or he
      had come in possession by a legal conveyance/title or any
      other instrument like receipt etc. to which the Respondent No.
      1 was a party or at its instance. It is also not the case of the
      appellant that he has perfected his title over the land in question
H     by way of adverse possession.
 NARAYAN LAXMAN PATIL v. GALA CONSTRUCTION CO. 877
           PVT. LTD. [R.K.AGRAWAL, J.]

        19. Merely saying that the Respondent No. 1 or the A
  original owner did not object at any time to the possession,
  does not make his possession lawful, even if it is accepted
  that he was in possession. The appellant has to prove his title
  of possession by pointing out that it was lawful and if such
  requirement could not be proved, mutation entry is required to B
  be cancelled. Recording the name of the appellant along with
  six others in the other rights column merely on the basis of
·.possession is nothing short of perversity and unless the officer
  concerned was satisfied thatthe said possession was lawful
  such an entry could not have. been made_irrespective of whether C
  the original owners appeared and contested the plea and more
  so when the officer was performing a statutory duty. When the
  statute states'that a duty has to be performed or an enquiry
  has to be conducted in a particular manner, it is well settled, it
                                                                     0
  has to be done in that manner alone and it was necessary for
  the Tehsildar to ensure that the r~quirements of the Code were
  satisfied by the petitioners' predecessor.

        20. In our considered opinion, the name of the appellant
 along with six others could not have been recorded in the E
 'Record of Rights' which contains the names of the persons.
 who claim title to the land. We further hold that since appellant
 and others never claimed that they had any title to the land,
 entering their names in the 'Record of Rights' was not at all
 justified and, therefore, the Mutation Entry No. 4601 could not
                                                                   F
 have been made in the said record. Hence, the Mutation Entry.
 No. 4601 dated 06.03.1987 has rightly been set aside. The
 appeal is dismissed with no order as to costs.

 Devika Gujral                                    Appeal dismissed.   G




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