1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4813 OF 1997 Sahebrao Raoji Patil and another ...Petitioners. Versus Kashinath Motiram Patil and another ... Respondents. ... Mr.S.P.Shah, advocate holding for Mr.P.M.Shah, Sr.counsel for the petitioners. Mr.R.C.Patil, advocate for the Respondent No.1. Notice of Respondent No.2 unserved as reported to be dead. ... CORAM : V.R.KINGAONKAR,J. Date : 14.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioners 2 challenge judgment and order rendered by the Additional Commissioner, Nasik Division, in RTS Appeal No.203/1995, whereby appeal preferred by the Respondent No.1 came to be partly allowed and the order of the Additional Collector, Dhule, was directed to be modified to the extent of names of the petitioners. The learned Additional Commissioner directed that the names of the petitioners should be recorded in the other rights column of the 7/12 record instead of cultivation column as per sanctioned mutation entry No.788. 3. The dispute lies in a narrow compass. The petitioners claim their rights on account of purchase of the land in question (Gat No.294) situated at village Dhanur. Indisputably, the land in question was owned by the Respondent No. 2. The Respondent No.1 has set up tenancy rights in respect of the said land. There is no dispute about the fact that the litigation regarding tenancy rights of the Respondent No.1 is pending before the Tenancy Tribunal and the matter is subjudice. The petitioners averred that they 3 purchased the land in question on 30.4.1992 by virtue of a registered sale deed and became owners thereof. They further asserted that they were inducted in actual possession of the said land as purchasers. The Respondent No.1 had filed a suit (RCS No.253/1978) against the Respondent No.2 and another for perpetual injunction in respect of the land in question (Gat No.294). That suit was dismissed. The appeal preferred by the Respondent No.1 also came to be dismissed on the basis of finding that his actual possession could not be established. It appears that after the dismissal of the suit and before the dismissal of the appeal preferred by the Respondent No.l, the land was purchased under two different sale deeds obtained by the petitioner from the Respondent No.2. 4. Heard learned counsel. 5. So far as the mutation entries are concerned, it may be stated that record of rights is required to be maintained as provided under Section 148 of the Maharashtra Land Revenue Code, 4 1966. The record of rights necessarily shall include names of all persons claiming rights on account of transfers or the persons claiming to be in possession of the land. The record of rights also shall indicate the encumbrances and other rights. The disputed entries are required to be taken in separate register as provided U/s 150 of the MLR Code. The relevant Register in form No.III as provided under Rule 5(2), 16 and 25 of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971. The mutation entry was sanctioned by the learned Tahsildar on the basis of the sale deeds produced by the petitioners. It was confirmed by the Appellate Authority. The learned Additional Commissioner, held that since the tenancy issue is subjudice, the certification of the mutation entry No.788 was not proper. He, therefore, directed that the names of the petitioners shall be recorded in the other rights column. In fact, the question was as to whether the names of the petitioners were required to be recorded in the "cultivation column" of the 7/12 register. For such purpose, it was necessary to 5 examine whether they were in actual possession of the land in question. The Civil Court gave finding that the Respondent No.1 was not in lawful possession of the said land and, therefore, his name could not appear in the cultivation column. The entry to be recorded in cultivation column would depend upon the actual cultivation noticed by the Revenue Authorities during the process of crop inspection. The Tahsildar is responsible to maintain the record of rights and register of mutation as provided under Rule 8 of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971. The transfers are required to be taken note of as per Rule 18 and Register of crops is to be maintained as per Rule 29 of the above Rules. The procedure for making entries in the Register of crops is envisaged in Rule 30. The names of the petitioners could be therefore, recorded in the "cultivation column" of the 7/12 record when their cultivation was noticed qua the land in question. The name of the Respondent No.1 could be recorded in Register of Tenancy as provided under Rule 32 of the 6 Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rule, 1971. Such a register in form No.XV is required to be maintained. In fact, the dispute is regarding the tenancy rights claimed by the Respondent No.1. Therefore, if his tenancy rights are established then it would follow that the transfer of the land in question could be challenged by him as the same would be against the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The provisions of BT and AL Act, 1948 give preferential right to a tenant U/s 32(G) and, therefore, the Respondent No.1 may have futuristic right if he will establish the existing tenancy rights. Still, however, his rights are not crystallised and have not been finally determined. Consequently, his name could be recorded in other rights column and taken as a disputed claim of tenancy in appropriate register. The learned Additional Commissioner has done diagonally opposite thing. In this view of the matter, the impugned judgment is quite unsustainable and is liable to be quashed. 7 6. In the result, the impugned judgment and order of the learned Additional Commissioner is quashed. The mutation entry No.788 be restored with further clarification that the same will be subject to change as per the decision of the Tenancy Tribunal and that the Talathi will be at liberty to record name of the Respondent No.1 in the appropriate register maintained in Form No.III i.e. Register of disputed cases. The further clarification in this behalf is that the name of the petitioners is to be recorded only in the crop cultivation column and the record of rights as per the transfers effected by the Respondent No.2 and it will not be indicative of final opinion as regards their lawful rights as such. The tenancy rights of the Respondent No.1 may be considered appropriately and the observations made herein be not taken into account while deciding the issue of tenancy. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp481397