http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: SANKALCHAN JAYCHANDBHAI PATEL AND ORS.

       Vs.

RESPONDENT: VITHALBHAI JAYCHANDBHAI PATEL AND ORS.

DATE OF JUDGMENT:       13/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals by special leave arise from the order of the learned single Judge of the High Court of Gujarat,  Originally, made  on March  23, 1995  in  Order NO.40/95 and in MCA No.656/95 on June 30, 1995.      The facts  are fairly  not  in  dispute.  The  admitted position is  that  the  appellant  and  the  respondent  had jointly purchased  the suit  scheduled property.   It  would appear that  there was  a petition between them as co-owners on March 20, 1982.      Subsequently, it  would appear mutation was effected to the revenue  record on  July 21.1982  to the  extent of  the property that  had fallen  to the share of the appellant who claims to  have a  further effected  partition  between  the appellant and his children on July 24, 1986. It is the  case of the  appellant that  the respondent filed an appeal under Section 11  of the Bombay Revenue Jurisdiction Act which was dismissed by  the appellant  Court on  March 9 1994. Without availing of  the  further  right  of  revision  as  provided thereunder, he  filed the  civil suit  in the  Court seeking declaration of  his title  to  the  property  and  perpetual injunction.   Initially the  trial Court  refused  to  grant injunction, but  on appeal  the District  judge had  granted injunction pending  the suit  restraining the appellant from alienating the  property.  The revision was dismissed by the High Court.  Review petition was also dismissed. Thus, these appeals by special leave.      The primary  question  raised  by  Mr.Yashank  Adharyu, learned counsel  for the  appellant, is that Section 11 is a bar on entertaining the suit. The High Court, therefore, was not right  in restraining  the appellant form alienating the property without  deciding jurisdictional issue i.e. whether the suit  itself is  maintainable. In  support  thereof,  he placed strong  reliance on  a judgment  of a single judge of the Gujarat  High Court  in  Rukmanibai  vs.  The  state  of Gujarat [(1960)  1 GLR  1791.   The question,  therefore is: whether Sections  11 is  a bar  for maintainability  of  the suit?   It is  sen that  the bar of Section 37 of the Bombay Land Revenue Code would be only as against the lands vesting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

in or  belonging  to  the  State.    Therefore,  it  has  no relevance to  the inter  se claims  of the  private parties. The High  Court, therefore  was  not  right  in  relying  on Section 37.      Section 11 of the Bombay Revenue Jurisdiction Act reads as under:      "11. Suits  not to  be  entertained      unless  plaintiff   has   exhausted      right of  appeal.  - No Civil Court      shall entertain  any suit  (against      the Government)  on account  of nay      act  or  omission  of  any  Revenue      Officer unless  the plaintiff first      proves that previously to bring his      suits he  has  presented  all  such      appeals allowed  by the law for the      time being  in force, as within the      period of  limitation  allowed  for      bringing such suits it was possible      to present."      A reading  of the  section would  clearly indicate that there is  a prohibition  on the Civil Court to entertain any suit against  the Government.  on  account  of  any  act  or omission of  any Revenue Officer, unless the plaintiff first process that  he previously  brought it  by way of an appeal before  the   competent    authority  and  within  the  time prescribed. Without  availing of  that remedy,    he  cannot present the suit against the State. The question is: whether Section 11  applies to  the inter  se claim  of the  private parties ?  It would  be seen  that learned  single judge has construed Section 11 of the Bombay Revenue Jurisdiction Act, and concluded that Section 11 prohibits entertainment of the suit  between  private  parties  unless  the  plaintiff  has exhausted right of appeal or revision prescribed therein and available to  him before  he resorts to the suit challenging the order  passed by  the  Revenue  officer.  A  reading  of Section 11  does not  indicate any  prohibition  on  private parties inter  se to  avail of the remedy of a suit provided under the  Code of Civil Procedure, 1908 [CPC]. Section 9 of CPC.  does   not  expressly  or  by  necessary  implication, prohibits the  jurisdiction of the  civil Court to entertain the based on title.      It is  settled law  that mutation  entries are  only to enable the  State to  collect revenues  from the  persons in possession and enjoyment of the property and that the right, title and  interest as to the property should be established de hors  the entries.  Entries are  only one of the modes of proof of  the enjoyment of the property. Mutation entries do not create  any title  or interest  therein. Therefore,  the view taken by the learned single Judge, with due respect, is not correct  in law. The civil suit is clearly maintainable. The High  Court rightly  granted injunction  restraining the appellants  from  alienating    the  land.  Even  otherwise, section 52  of the  Transfer of  property Act  lis  pendense always stands in the way of purchaser of the land subject to the result in revision.      Under  these   circumstances,  we   do  not   find  any illegality  in  the  order  of  the  High  Court  warranting interference.      The appeals accordingly dismissed. No costs