* 1 * Appeal-245-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 245 OF 2007 IN WRIT PETITION NO. 2103 OF 2003 M/s. Gala Construction Co.Pvt.Ltd ..Appellants/ [Orig.Petitioners] : VERSUS : Narayan Laxman Patil & Ors. .. Respondents ***** Mr. Reis i/by. Mr.Rajesh Kachare, Advocate for the appellants. Mr. V.A. Thorat, Senior Advocate with Mr.Neel Helekar i/by. Mrs. A.N. Helekar, Advocate for respondents no. 1/2. CORAM : D.K. DESHMUKH, & SMT. R.P. SONDURBALDOTA, JJ. DATED : 22nd JUNE, 2010. P.C. :- 1. The facts that are material and relevant are as under :- * 2 * Appeal-245-07 . Respondents no.1 to 7 made an application dated 12th September, 1986 before the Tahsildar, Borivali requesting the Tahsildar to enter their names in the ‘other rights’ column in the revenue record against an area of 11 Acres out of land survey no.221, area-488 acres situated at Village-Eksar, Taluka- Borivali. They claimed that they are in possession of this 11 Acres of land for the last 15-20 years. They also claim that one Kamlakar Narayan Samant is the owner of the land and if the entry is made, he will have no objection to recording of the names of respondents no.1 to 7 as the persons in possession. On the basis of this application, it appears in the record of rights Mutation Entry no.4601 was made on 20th September,1997. It appears that on the basis of this entry, their names were also shown in the ‘other rights’ column in the 7/12 Extract. A revision was preferred by the appellant before the Sub- Divisional Officer challenging Mutation Entry No.4601. That revision was decided by the Sub-Divisional * 3 * Appeal-245-07 Officer by order dated 30th December,2000. The revision application was allowed and Mutation Entry no.4601 was set aside. Against that order,respondents no.1 to 7 filed an Appeal before the Deputy Collector (Appeals),Mumbai Suburban District. That Appeal was decided by order dated 31st July, 2001. The appeal was rejected. It appears that, respondents no.1 to 7 filed revision against the appellate order. That revision was decided by the Additional Commissioner, Konkan Division by his order dated 14th March, 2003. The Additional Commissioner set aside the order dated 31st July, 2001 of the Deputy Collector (Appeals) and confirmed Mutation Entry No.4601. 2. What is interesting to be noted is that the order passed by the Sub-Divisional Officer in revision setting aside Mutation Entry No.4601, was not set aside. Against the order of the Additional Commissioner, Writ Petition No. 2103 of 2003 was filed by the petitioner in this court. That petition was * 4 * Appeal-245-07 decided by the learned Single Judge of this court by order dated 3rd August, 2006. The learned Single Judge held that the Sub-Divisional Officer was not justified in entertaining revision against the mutation entry after lapse of so much time. He has further held that as regards the mutation entry, the petitioner is free to institute suit to establish his title. 3. The learned Counsel for the appellant, submits that, the mutation entry was taken in 1987. Revision was filed against that entry in 2000. An objection that the revision is not filed within limitation was raised before the Sub-Divisional Officer and that objection was rejected by the Sub- Divisional Officer. The learned Single Judge, therefore could not have held that the Sub-Divisional Officer was not justified in entertaining the revision. It has further been submitted that the learned Single Judge has held that the petitioner is * 5 * Appeal-245-07 free to institute a civil suit for establishing his title to the land. It is submitted that this observation shows non-application of mind on the part of the learned Single Judge to the record, because, title to the land was never claimed in the application filed by respondents no.1 to 7 what they were claiming was that they are in possession of the land and therefore in the revenue record, their names should be entered as persons in possession. They were not claiming title to the land. Therefore, there is no question of the petitioner instituting a suit for proving its title. 4) We have heard the learned counsel for the respondent. Perusal of the application filed by respondents no.1 to 7 before the Tahsildar shows that all that they were claiming was that they were in possession of the land and therefore their names should be shown in the revenue record as persons in possession. Obviously, therefore, their names could * 6 * Appeal-245-07 not have been recorded in the record of rights which contains the names of the persons who claim title to the land. Mutation Entry No.4601 has been made in the record of rights showing that respondents no.1 to 7 were claiming title in the land. In our opinion, as respondents no.1 to 7 never claimed that they had any title to the land, entering their names in the record of rights was not justified and therefore Mutation Entry No.4601 could not have been made in the record of rights. Probably, on their application an entry in the possessory record maintained by the revenue department could have been made. In our opinion, therefore following order would meet the ends of justice. O R D E R (i) Mutation Entry No.4601 made in the revenue record, copy of which is at Exhibit-G-1 is set aside. (ii) As respondents no.1 and 2 claim to be in possession, therefore the appellant shall be free * 7 * Appeal-245-07 to initiate appropriate proceedings for taking possession of the land, if so advised in accordance with law. (iii) Appeal disposed off. [D.K. DESHMUKH, J] [SMT. R.P. SONDURBALDOTA, J]