Revenue Records, ‘Mutation’ & Survey Records will not Confer Title; They merely Raise a Presumption on Possession

Saji Koduvath, Advocate, Kottayam.

Abstract

It is Settled – Revenue Records will not confer title

  • Sawarni v. Inder Kaur, (1996) 6 SCC 223
  • Balwant Singh v. Daulat Singh, (1997) 7 SCC 137
  • Suman Verma v. Union of India, (2004) 12 SCC 58; 
  • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901
  • State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319
  • Faqruddin v. Tajuddin, (2008) 8 SCC 12;
  • Rajinder Singh v. State of J&K, (2008) 9 SCC 368; 
  • Narasamma v. State of Karnataka, (2009) 5 SCC 591
  • Union of India v. Vasavi Co-op.  Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269,
  • Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; 
  • T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342;
  • Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; 
  • Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259;
  • Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
  • Bhimabai Mahadeo Kambekar v. Arthur Import and Export Co. (2019) 3 SCC 191
  • Jitendra Singh v.  The State of Madhya Pradesh (2021 SCC OnLine SC 802) [M.R. Shah,  Aniruddha Bose, JJ.]
  • P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278
  • Laxkshmi B. v. Suku, 2024-1 KerHC 380
  • The State of Punjab vs Bhagwantpal Singh Alias Bhagwant Singh, 10 July, 2024: 2024 INSC 518
  • Ram Balak Singh v. State of Bihar, 2024 INSC 360, 01 May 2024 [Pankaj Mithal and Prasanna Bhalachandra Varale, JJ.]

Revenue Records Prove Possession

  • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901 (Revenue record merely raises a presumption in regard to possession)
  • State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 (Revenue records merely show possession of a person)
  • Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017; 2017 0 Supreme(SC) 1418 (There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case.)
  • Krishnamurthy S.  Setlur v.  O.V.  Narasimha Setty, 2019-9 SCC 488 (Revenue records prove possession)

Survey Authorities Not to decide Title; Only Conclusive proof – Boundaries recorded correctly (when survey was made)

  • Kannan v. Kannan, (1964 KLT 228), 
  • The Cheriyanad Grama Panchayath v. The State of Kerala,  (2019 (5) KHC 699),
  • Venugopalan Nair v. Saraswathy Amma, (2013 (4) KLT 717),
  • Karthyayani v. Balakrishnan, (2014 (2) KLT Suppl. 67 (Ker.),
  • Ibrahim v. Saythumuhammed, (2013 (4) KLT 435)
  • Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259
  • Achama Alexander v. Asst. Director, Survey and Land Records, 2022 (2) KHC 131: 2022-3 KLT 198.
  • Thomas v. Philip, 2022(4) KerHC 451;
  • Elambilan Nani Amma v. Mulavana Antony (K. Babu, J,), 2023-7 KHC 418.

Statutory Presumption of correctness of revenue entries

In Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017; 2017 0 Supreme(SC) 1418, it is held as under:

  • “There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government.”

Revenue Records Does Not Confer Title

In Union of India v. Vasavi Co-op.  Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is held as under:

  • “17. This Court in several Judgments has held that the revenue records does not confer title. In Corporation of the City of Bangalore v. M. Papaiah and another (1989) 3 SCC 612 held that
    • “it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law.”
  • In Guru Amarjit Singh v. Rattan Chand and others (1993) 4 SCC 349 this Court has held that “that the entries in jamabandi are not proof of title”.
  • In State of Himachal Pradesh v. Keshav Ram and others (1996) 11 SCC 257 this Court held that
    • “the entries in the revenue papers, by no stretch of imagination can form the basis for declaration of title in favour of the plaintiff.”

Revenue records can support claim of ownership when corroborated

In State of Haryana & Anr. Vs. Amin Lal (Vikram Nath,  Prasanna B.Varale JJ), 2024-4 CurCC(SC) 222, it is held as under:

  • Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.

Survey conclusive proof – Boundaries determined & Recorded Correctly

  • Elambilan Nani Amma v. Mulavana Antony (K. Babu, J,), 2023-7 KHC 418

Part – 1

Revenue Records are Not Documents of Title.

P. Kishore Kumar v. Vittal K Patkar (2023 SCC Online SC 1483; 2024-1 CTC 547; 2023-4 CurCC(SC) 278) is a latest decision (Dipankar Datta, Bela M. Trivedi, JJ.) in this matter which held as under:

  • “11. It is trite law that revenue records are not documents of title.”

Revenue entries or mutations do not confer or Extinguish title

Mutation is the process of updating land/revenue records kept by the Government, especially after a change in ownership.

  • Revenue entries are not documents of title and do not ordinarily confer or extinguish title in the land : Ram Balak Singh v. State of Bihar, 2024 INSC 360, 01 May 2024 [Pankaj Mithal and Prasanna Bhalachandra Varale, JJ.]

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. After pointing out these legal propositions it is observed in Jitendra Singh vs The State Of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

  • “6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
  • 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

Revenue Documents do not Confer ‘Title’; It Raises Presumption on Possession

Our Apex Court, in Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901 (SB Sinha. J.), has held that a revenue record is not a document of title; and that it merely raises a presumption in regard to possession.

In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund (supra) , held as under:

  • “A revenue record is not a document of title. It merely raises a presumption in regard to possession.” (Quoted in: State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319).

It is pointed out in this case that in proper cases (for revenue record is not a document of title) declaration is required .

It is also laid down in this decision as under:

  • “Presumption of possession and/ or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.” (Quoted in: State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319).

It is observed by the Apex Court, in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 (following Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901),

  • “13. …. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession.” (Quoted in M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1).
  • “16. The courts below erred in holding, that revenue records confer title, for the reason that they merely show possession of a person.”

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Revenue record Proves Possession; Presumption of truth Attached

It is held in Krishnamurthy S.  Setlur v.  O.V.  Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. it is said as under:

  • “14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”

Presumption of Correctness on Entries in the Revenue Record

In Vishwa Vijai Bharti vs Fakhrul Hasan, AIR 1976 SC 1485 it is held as to the presumption of correctness on revenue-records as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

Revenue record do Not confer Presumptive Value on Title

The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan  v. Sonu Kumhar, (2019) 10 SCC 259. It was held that the revenue record would not confer title to the property nor do they have any presumptive value on the title.

  • “5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar’s name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.” (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021). See also: Narasamma & Ors. Vs. State of Karnataka & Ors. (2009) 5 SCC 591).

It is also held:

  • “Revenue records are not documents of title”. (P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278).

An entry in Panchayat Register

Shivraya v. Bakkappa,1995 Supp3 SCC 400, held as under:

  • “An entry in Panchayat Register is not an entry which could establish title in favour of the plaintiff.”

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

  • “35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114.  ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

  • “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

  • “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Record of Rights and the Record of Permanent Settlement – Accepted

Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:

  • “This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court Court referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, held as under:  

  • “Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)

Inam Registers – Burden to Prove Higher Title on Who Challenges it

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, it was said as under:

  • “In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof.”
  • These admissions are two-fold; they concern the nature of the properties in dispute and the nature of the idol. Added to these are the decisions of the Inam Commissioner in respect of the villages, which were recorded as Devasthan inams at the instance of Damodar, who appealed against the order to record them as personal inams. The value to be attached to the decisions of the Inam Commissioner had come up for consideration before the Judicial Committee in a series of cases.
  • It is sufficient to refer to only one of them. In Chetty v. Venkatachellapathi Guru Swamigal (1919 – L.R. 46 IA 204), the Judicial Committee while dealing with the Inam Register for the year 1864 which had been produced for their inspection, attached the utmost importance to it. It observed :
    “It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax-free. But it must not be forgotten that the preparation of this Register was a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners through their officials made enquiry on the spot, heard evidence and examined documents, and with regard to each individual property, the Government was put in possession not only of the conclusion come to as to whether the land was tax-free, but of a statement of the history, and tenure of the property itself. While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases; yet the Board, when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register.”
  • The nature and quantum of the right and interest in the land was thus gathered from the Inam Registers and enquiries, which preceded them.
    Thus, it was doubly necessary for the appellant to bring before the Court all the documents in which his title was created, recognised or confirmed. He has, however, filed only a selection, and has refrained from bringing into evidence all the material in his possession which as late as 1931 was available to him. We have pointed out above that in 1931 he caused a history of the Sansthan to be published, and it refers to numerous documents, which have not found their way into Court. The learned Judges of the High Court also mentioned this fact, and stated that in view of the failure of the appellant to prove conclusively that a higher title than the one made out before the Inam Commission was available to him, no reliance could be placed upon such documents as had been exhibited.” 

Nemo Dat Quod Non Habet

In P.  Kishore Kumar v. Vittal K.  Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that the revenue records are not documents of title, it is held as under:

  • “18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”. In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.”
  • “22. Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.”

‘Mutation’ Only (Mainly) for Fiscal Purposes; Legal Rights subject to civil court decision

Following propositions can be culled out from the very rules of The Transfer of Registry Rules made applicable in the State of Kerala (Rule 15 and 16):

  1. It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
  2. It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
  3. It is the immediate concern of the Land Revenue Department bring into the thandaper accounts (Chitta) the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.
  4. No case shall be rejected solely for the default of appearance of the parties.
  5. Only a summary enquiry is to be made by the Revenue authorities.
  6. The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
  7. The summary enquiry and the decision thereon do not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases.
  8. The question of legal rights is always subject to adjudication by civil courts.
  9. And, pattas will be revised from time to time in accordance with judicial decisions.

In Sawarni v. Inder Kaur and Ors., (1996) 6 SCC 223, it was held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. (Referred to in: P.  Kishore Kumar v. Vittal K.  Patkar, 2023 4 CurCC(SC) 278)

In Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 it was held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. (Referred to in: P.  Kishore Kumar v. Vittal K.  Patkar, 2023 4 CurCC(SC) 278)

In Jitendra Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 802, it was held as under:

  • “6. … mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.” (Quoted in: P.  Kishore Kumar v. Vittal K.  Patkar, 2023 4 CurCC(SC) 278)

In Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49, it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary. (Referred to in: P.  Kishore Kumar v. Vittal K.  Patkar, 2023 4 CurCC(SC) 278)

Patta As Such Does Not Confer Title

In Union of India v. Vasavi Co-op.  Housing Society Ltd. , AIR 2014 SC 937; 2014-2 SCC 269, it is continued as under:

  •  “18. The Plaintiff has also maintained the stand that their predecessor-in- interest was the Pattadar of the suit land. In a given case, the conferment of Patta as such does not confer title. Reference may be made to the judgment of this Court in Syndicate Bank v. Estate Officer & Manager, APIIC Ltd. & Ors. (2007) 8 SCC 361 and Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu & Ors. (1991) Supp. (2) SCC 228.
  • 20. We are of the view that even if the entries in the Record of Rights carry evidentiary value, that itself would not confer any title on the plaintiff on the suit land in question. Ext.X-1 is Classer Register of 1347 which according to the trial court, speaks of the ownership of the plaintiff’s vendor’s property. We are of the view that these entries, as such, would not confer any title. Plaintiffs have to show, independent of those entries, that the plaintiff’s predecessors had title over the property in question and it is that property which they have purchased.”

Patta is not a document of title. It can be Mortgaged as Title-Deed u/s. 58, TP Act

In Angu Pillai v. M.S.M. Kasiviswanathan Chettiar, AIR 1974 Mad 16, it was noticed as under:

  • “15.In Indian law, deposit of patta has been held to constitute a valid equitable mortgage, though patta is not in itself a deed of title, but is only an evidence of title. This Court has consistently taken the view that the main object of tender of patta is merely to give information of the land revenue payable and the details of the property and that the exact weight to be given to the patta would depend upon the circumstances of the case. In Dohganna v. Jammanna, AIR 1931 Mad 613 it is pointed out that in case of pattas in respect of a land in Zamindari, if the land be at the disposal of the landlord at the time of granting the patta, prima facie such patta would not be mere bill of rent but something more and that if it is not so it would not create any rights in the pattadar in derogation of the rights of a person who would be entitled to the land subject to the proper and regular payment of rent. The question directly arose before a Bench of this Court in Official Assignee v. Basudevadoss, AIR 1925 Mad 723, as to whether a deposit of patta is enough to constitute an equitable mortgage. The Bench answered the question in the affirmative. Srinivasa Aiyangar, J. who delivered the leading judgment in that case, has pointed out that the answer to the question as to whether the pattas in respect of a land is a document which would be sufficient, by being deposited, to evidence the intention required for an equitable mortgage would vary according to the conditions of the country and the consciousness on the part of the members of the community and that though a patta is not a document of title still a deposit of the same with intent to create an equitable mortgage would create an equitable mortgage.” (Quoted with approval in: Syndicate Bank v. Estate Officer,  AIR 2007 AIR SC 3169; 2007-8 SCC 361)

Not to Set Aside Patta; for, Patta was Prepared not after hearing

In Godavarma Valia Raja v. Bhoothi Swamiyar,  AIR 1952 TC/Ker 408, ir is observed as under:

  • Therefore, so far as the assessment is concerned it was not at all necessary to set aside the order of the Settlement Officer. It is only in case the Devaswom impeaches the order in so far as it refused to issue patta in favour of the Devaswom for some of the properties claimed by it that the Devaswom would be bound to set aside the order. Therefore, there is no substance in the contention that the plaintiff was bound to set aside the decision of the settlement Officer mentioned in the notice, Ex. VIII. The further question for consideration is whether the plaintiff was bound to set aside the patta, Ex. G. There is nothing to show that the patta was prepared after hearing the plaintiff or after giving him an opportunity to show cause why the assessment should not be fixed in the manner in which it was fixed in Ex. G. The preparation of the patta appears to have been a mere executive order of the Settlement Officer. It was not an order passed between two parties. Again, even if the declaration asked for in the plaint is allowed it will not have the effect of setting aside the patta. It will only have the effect of correcting the patta with respect to the assessment.”

Transfer of Registry Rules, 1966

Rule 15 and 16 of the Transfer of Registry Rules, 1966, of the Kerala State read as under:

  • Rule 15 : “With the help of the details furnished in the statement in Form ‘A’ prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.”
  • Rule 16 : “The summary enquiry and the decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by civil courts and pattas will be revised from time to time in accordance with judicial decisions.”

The Kerala High Court held in Thulasibhai CC v. State of Kerala, 2010 (4) KLT 215, that the revenue recovery proceedings would not stand as a bar either in the Revenue Recovery Act or in the Transfer of Registry Rules to effect mutation. In Sudan K.K.   v. State of Kerala, 2013 (4) KLT 563, it was held that the pendency of a civil suit also can never be a bar with regard to the acceptance of land tax unless specifically restrained by any order passed by the Court.

Part – II – Survey and Boundaries Act

“The Survey and Demarcation of lands by the State have a Purpose”

In Achuthan Unni v. Vally, 1962 KLT 1010, it is held as under:

  • “3. The survey and demarcation of lands by the State have a purpose; they are intended to identify the different pieces of land so as to regulate the rights of landholders. Bights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being extensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts the contrary to prove by positive evidence that a defined portion thereof is in his adverse possession and has been lost to the owner thereof. If the court finds the same, the Land Records will be corrected accordingly sub-dividing the original survey division so as to demarcate each holding with separate survey number.”

In Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, it is held as under:

  • 5. Where the disputed land is a narrow strip, (in this case, it is of width ranging from two or three feet) at the verge of the plaintiff’s land adjoining the defendants’ property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiff’s land is admitted or found to be in the plaintiff’s possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years). [See: Achuthan Unni v. Vally, 1962 KLJ 400].” (Quoted in: n Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)

In Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.), the argument of the appellant in the Second Appeal was laid down by the court as under:

  • “5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the ‘chal’ and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents’ property should be along the ‘EF’ line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant’s property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued.”

Dismissing the second appeal, it is held as under:

  • “12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends up to the line stated above is in possession of that narrow strip of land as well.”

Survey conclusive proof – Boundaries determined & Recorded Correctly

In Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418, it is observed as under:

  • “It is also trite that the decisions of the survey authorities under Chapter II of the Act (Kerala Survey and Boundaries Act) will not affect the right and title of the property acquired by a party as per a valid title deed. The right and title to property have to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed. The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly. (Vide: Cheriyanad Grama Panchayath v. The State of Kerala and Ors. (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander (Died. Lrs impleaded) and Others v. Assistant Director, Survey and Land Records and Others (2022 (2) KHC 131).”

The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly (when survey was made). This view is fortified by the decisions of the Kerala High Court in: 

  • Kannan v. Kannan (1964 KLT 228), 
  • The Cheriyanad Grama Panchayath v. The State of Kerala  (2019 (5) KerHC 699),
  • Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717);
  • Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.);
  • Ibrahim v. Saythumuhammed (2013 (4) KLT 435);
  • Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198);
  • Thomas v. Philip, 2022(4) KerHC 451;
  • Elambilan Nani Amma v. Mulavana Antony, 2023-7 KHC 418

Determine Boundaries by Survey Authorities

Kerala High Court held in Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) to the following effect:

  • The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
  • The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
  • It is predominantly based on possession.
  • As per the Act, the survey officer has the power to determine and record any boundary as undisputed in respect of which no dispute is brought to his notice.
  • Where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.

Survey Plan or Revenue Records Do Not Confer Title

In Laxkshmi B. v. Suku, 2024-@1 KerHC 380, it is observed as under:  

  • “When a suit for recovery of possession has been filed on the strength of title or in a suit for title declaration, title would prevail over revenue records and resurvey numbers. To put it differently, tax receipts, survey plan, resurvey plan or revenue records do not confer title to anybody, when there is title deed in relation to the said property in favour of the title holder. Therefore, in suits involving title dispute, title would prevail over revenue records, if it is found on measurement that the property covered by the title deed is identified properly justifying the declaration of title and recovery of possession on the strength of title. The said reliefs never be denied merely on the ground that in the revenue records/resurvey records, the said portion of the property is not shown as the property of the plaintiffs.

Survey Authorities Not to decide title

  • It is not for the survey authorities to decide the question of the title (based on resurvey records).
  • The decision of the survey authorities shall not affect the right and title of the properties acquired by a party as per a valid title deed.

Properties Identified on Title Deeds

  • The properties of the parties are to be identified based on the title deeds.
  • The changes in the extent of the property in the resurvey would not confer title.

Title and Possession decided by Civil Court

The title and possession are matters to be decided by a Civil Court.

Merely because a portion of the plaintiff’s property is shown in the resurvey records as with defendant’s survey number, it cannot lead to an inference that possession was with the defendant.

In Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.) held as under:

  • “The questions of law regarding conclusiveness of the re-survey conducted under the Survey Act is held against the appellants and in favour of the 1st respondent/plaintiff. Necessarily, the resurvey conducted under Section 13 has to yield to the adjudication by the competent Civil Court with respect to the identity based on title.”

Power of Survey Officer to determine disputed boundary

In Cheriyanad Grama Panchayat v. State of Kerala, 2019 (4) KLT 916, it is laid down as under:

  • Section 10 of the Act authorizes the survey officer to re-define the boundary lines of a particular survey already settled by old survey records.
  • Section 6 and 7 of the Act do not empower survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey (except for the purpose of Section 5 of the Act which deals with the situation wherein certain area was taken away by sea erosion or action of river.)
  • Section 4 of the Act also permits a survey of the land, but its purpose should be understood in relation to the necessity to have a re-survey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey.

In Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198, it is observed as under:

  • “24. A reading of Sec. 10 of the Act makes it candidly clear that the survey authority is only empowered to determine the disputes regarding the fixation of boundary between owners of land comprised in a particular survey division. The act of determination envisaged in Sec. 10 of the Act essentially draws a dividing line based on ownership within a particular survey or, in other words, Sec. 10 of the Act does not authorise the Survey Authority to redefine the boundary line of a particular survey already settled by old survey records. Section 10 of the Act does not empower the survey authority to change the ownership of a particular sub-division and make it part of another survey sub-division.”

Sec. 10 of the Kerala Survey and Boundaries Act reads as inder:

  • “10. Power of Survey Officer to determine and record a disputed boundary with reasons– (1) Where a boundary is disputed, the Survey Officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.
  • (2) Notice of every decision of the Survey Officer under sub-section (1) shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands, the boundaries of which may be affected by the decision.

Petitioner to Prove claim (Lease); cannot rely Inconsistencies of Respondents

In OT Alexander v. State of Kerala, LAWS (KER) 2021-5. 23, High Court of Kerala (N. Nagaresh, J.) did not accept the argument of the petitioner in the Writ Petition, against the Government Order for resumption of the land, for the absence of materials to establish the lease of 1933 claimed by the Petitioner.  The prime contention of the petitioner was that the land was originally granted to the predecessors-in-interest of the petitioner, under Ground Rent Patta by erstwhile Collector of South Malabar District during the British regime in 1933; and that Land assigned under Ground Rent Patta could not be resumed by the Government.

The petitioner claimed that the transferees of the original leasee sold their right to a bank. The Bank (State Bank of Travancore) sold the property to a Company in 1995. The petitioner purchased the property from the Company as per the Sale Deed of the year 2004. The petitioner has been paying property tax to the Cochin Corporation. The action for resumption of land by the District Collector was on the ground that the sale deed between SBT and the Company was illegal. Pointing out that the petitioner cannot base his claim on inconsistencies of the respondents, the High Court did not accept the arguments against the resumption of land by the Collector.

Part – III

Land Reforms Act

In Harikumar P. R.  v. State of Kerala, 2013-2 KerLT 44, 2013-1 KHC 847, it is held as under:

  • “Title to property is not what is decided in the Land Board proceedings in a ceiling case (under Land Reform Act) as between the declarant and the State, though such issues may be germane while exemptions or identification of excess, are to be decided by the Land Board, as between the declarant and other parties appearing before the Land Board. If the Government have the case that the paramount title to the land rests with them, they would be at liberty to initiate action in accordance with law.” (quoted in: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KERLT 369, 2018-2 KHC 719,)

Part – IV

Presumptions in Favour of Govt. Lands

(a) There is a presumption in favour of Government – all lands which are not the property of any person or which are not vested in a local authority, belong to the Government.

(b) In order to defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government.

(c) In Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, it was held as under –

  • “In this country escheat is not based on artificial rules of common law; and is not an incident of feudal tenure.  It is incident sovereignty and rests on principle of ultimate ownership by the State of all property within the jurisdiction.”

(d) In Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361, held

  • “… The State is the ultimate owner of all property situate within its boundaries”.

(e) In Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it is held that it would be deemed that the disputed land vested in State and if the other side fails, in law,  it would be taken that the land was vested in State. (Followed in: Mohd. Shafiq v. Assistant Director of Consolidation, 2011-9 ADJ 24)

(f)  In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. …… All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.

(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –

  • “The appellate courts examined the title of Government instead the plaintiff/respondent No. 1.  Such a course was not warranted.  The title of Government cannot be disputed.  In any event, possession of Government for decades is not disputed.  The plaintiff shifted the case from time to time; but failed to prove his title……….   The said courts did not realize that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit-land.”

(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

  • “When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

(i) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

(j) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:

  • “There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”

Period of Limitation – 30 years

R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, continues (as regards period of limitation) as under:

  • ” … The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
  • Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
  • 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
  • In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

Read in this cluster (Click on the topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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