IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11772 of 2007 Smt. Shakuntala Devi, wife of Shri Sita Ram Singh, Mohalla Gabh Tal, Danapur, PS Danapur, District Patna – Petitioner. Vs. (1) The State of Bihar through the Secretary, Department of Revenue, Bihar, Patna. (2) The Collector, Patna. (3) D.C.L.R., Danapur, District Patna. (4) Circle Officer, Danapur. (5) Shri Subhash Prasad, son of Dhirendra Prasad, resident of Kagzi Mohalla, Machhuatoli, Danapur, PS Danapur, Dist. Patna – Respondents. … 2 17.9.2010 This writ petition has been filed challenging the order passed in Mutation Revision Case No.11/2005-06 by the Collector, Patna and the order, dated 21.6.2005 passed by the D.C.L.R. Danapur by which the petitioner’s application for mutating her name in the records of right has been rejected on the ground that it involves disputed question of title. The facts are that the lands were the raiyati lands of the ex landlord. Rent Suit No. 495/1952 was filed in which the defendant was Ram Swaroop Mahto. Ultimately the rent suit was decreed and the property was auction sold which was purchased by Ram Swaroop Mahto in the name of Shyam Narain Prasad. The sale was confirmed on 17.11.1955. The sale certificate was prepared on 20.12.1955. Ultimately the petitioner came in possession of the land in question on 8.1.1956. Subsequent to the rent suit, T.S. No. 17/1957 was filed by Sheodutt (his land was auction sold). The plaintiff challenged the order of the rent suit and the suit decree injuncting the defendant from taking advantage of the rent suit. The suit was 2 decreed and finally Case No. 3/1977 was instituted. At the stage of the execution an amendment was filed by the plaintiff Sheodutt on 17.3.1981 claiming that he should be granted a decree of recovery of possession. The amendment application was allowed by the executing court. The order was challenged by filing C.R. No. 1215/1982 which was disposed of by this court on 2.7.1986 remitting the matter back to the executing court as the principles of natural justice had not been followed while passing the order. On remand the executing court dismissed the amendment application. The result is that the petitioner continued in possession of the lands in question. Finally the execution case was dismissed on 5.7.1991. The petitioner has filed an application for mutation which was allowed by the Circle Officer and rejected by the D.C.L.R. and the Collector which is under challenge before this court. The facts aforesaid are not disputed by either party. A strange situation has arisen. Undoubtedly the petitioner came in possession by virtue of a decree of a civil court affirmed by execution proceeding and delivery of possession in favour of the petitioner. The subsequent judgment passed in T.S. No. 17/1957 has set aside the decree passed in Rent Suit No. 495/1952 and has allowed the prayer of Sheodutt, plaintiff and restrained the defendant from taking advantage of the decree passed aforesaid. No steps were taken by the respondent in this case to file an application for evicting the petitioner from the suit 3 premises. He has remained in possession and continues to be in possession by virtue of the fact that the execution case arising out of T.S. 17/1957 was dismissed by the court below. Thus, the petitioner, who was in possession of the land, has no title to the land and the respondent who has title to the suit land does not have possession of the lands in the circumstances stated aforesaid. The question that arises before this court is whether the petitioner who is in possession without title can be permitted to get her name mutated in the records of right? It has been argued that one of the main factors for mutating the name of a person in the records of right is that he has to show that he was in actual physical possession of the property. In reply to the aforesaid submissions, counsel for the respondent submits that the mutating authority cannot enter the name of any person merely because he is in possession. Such possession may be that of an encroacher or may be completely illegal and as such the mutating authority should examine whether the person claiming possession has some inkling or semblance of a title, on the lands on which he claims that he is in possession. As far as petitioner is concerned, she came in possession legally but is continuing in possession by virtue of the fact that no action has been taken by the respondent. In the peculiar facts of this case, this court finds that the mutation in the name of the petitioner obviously would not entitle him, to title o the property whereas mutating the name of the respondent who has title to the property would not mean that 4 he is in possession of the property concerned. In the circumstances this court thinks that it would be up to the respondent to file a suit for eviction of the petitioner, if so advised. As far as the question of possession is concerned, undoubtedly the petitioner is in possession but this possession is prima facie without any title. In the circumstances I do not think it proper to interfere with the impugned order. This writ petition is disposed of with the aforesaid observations. Although the petitioner is in possession of the land, the respondent would be entitled to raise a question that the possession is ‘hostile’ or is ‘permissive’ possession; whereas respondent would also be entitled to raise all legal defenses in his favour. haque ( Sheema Ali Khan, J.)