Correction and mutation of record-of-rights under various classes of decrees of civil courts

- Md. Mukhlasur Rahman

ASDFASDF

Published On - September 23, 2017 [Vol. 7, Jul - Dec, 2017]

Methods for correction of record-of-rights by the civil courts:

We know that if there is any actual wrong in a finally published record-of-rights, published u/s. 144 of State Acquisition and Tenancy Act 1950[1], then that record can be corrected only by the decree of civil courts as per provisions of sec. 54 of SAT Act, and by the civil courts the record-of-rights can be corrected in two ways under two provisions of the State Acquisition and Tenancy Act; such as:-

  • U/s. 145A(8) of the SAT Act; by a decree for correction of the record passed by the Land Survey Tribunal; or,
  • U/s. 54 of the SAT Act read with sec. 42 of S.R. Act; by an order or decree for declaration of title or declaration of possession passed by a civil court.

Correction of record-of-rights under any other classes of decrees except decrees for declaration of title or declaration as to right of possession:

Sec. 54 states that “The Revenue-officer shall make such alterations in the records-of-rights as may be necessary to give effect to any final order or decree of a Civil Court or High Court passed in any suit, appeal or proceeding declaring title to and/or possession of any land.”

Therefore, for correction of record-of-rights under this section, the decree of the civil court must be for a declaration either of title to or of possession of the party in the suit lands.

There may be various classes of decrees by the civil court respecting the land property; say for example, decree for simple partition, decree for specific performance of contract, decree for permanent injunction, decree for cancellation or rectification of instrument, decrees for possession under usufructuary mortgage u/s. 95A of SAT Act, etc. have no such force of correction of the record; because, in such types of suits no rights, i.e. either for title to or possession in the suit lands, are declared. However, in all types of above mentioned suits, if another prayer as to declaration of title is also sought and the suit be decreed accordingly, only then a wrong record-of-rights can be corrected under those decrees. For these reasons, we always fight for that if the last record is not in the name of the plaintiff or his predecessor, in all types of suits he must seek for a prayer for declaration of title first and then another prayer.

Mentionable that if the last record-of-rights is in the name of the decree-holder himself or in the name of his predecessor, e.g. in the name of his forefather from whom he inherited the same or in the name of his vendor, etc, in those cases record may be corrected or mutation may be given under those decrees. But in those cases correction is done u/s. 143 of SAT Act or mutation is done u/s. 117 of SAT Act, not u/s. 54 of SAT Act.

This analysis by ours gets support from the authority of 1 ALR (AD) 29 = 16 BLC (AD) 155.

Effects of declaratory decree:

In this respect the sec. 54 of SAT Act needs to be reproduced here; which reads as follows: “The Revenue-officer shall make such alterations in the records-of-rights or the Compensation Assessment-roll as may be necessary to give effect to any directions issued by the Commissioner or other officer under section 49 or an order made by a Special Judge under section 51 or section 53 or under sub-section (4) of section 52 or to any final order or decree of a Civil Court or High Court passed in any suit, appeal or proceeding, declaring title to and/or possession of any land.”

In lots of decisions our superior courts have clarified this position of law in situations when a party gets a decree from a civil court having jurisdiction declaring his title to and/or right to possession, the revenue officer under the mandate of 54 of SAT Act, must correct the record-of-rights in accordance with the said decree. We may refer to decisions in this respect 62 DLR 31, 17 BLC 216, 53 DLR 506, 56 DLR 525, 44 DLR (AD) 291, 12 DLR 266.

However, there is a circular, being Bu:Mo:Sha: no. 9-19/93/214(582) dated 11.05.1994 of Ministry of Lands, that if it is government’s khas lands the officer concerned shall not mutate/correct Khatian under a decree of civil court without taking opinion/approval from the Ministry of Lands. But this circular is respecting only the Khas khatian’s lands, not respecting private property.

Even if the officials concerned were not made party to the suit; they are duty bound to mutate/correct khatian under the decree:

It is also pertinent to mention that even in the officials concerned (revenue officers) were not impleaded in any suit, in that case too the revenue officers are duty bound to mutate/correct khatian under the decree for declaration of title and for declaration of right to possession. Ref. 54 DLR 451.

If the concerned official concerned do not mutate/correct the record as per decree, then he may be liable for contempt of court:

We have already seen that as per sec. 54 of SAT Act under a decree of civil court declaring one’s title or possession the settlement-officers “shall” alter the record-of-rights accordingly. Mentionable that this decree as denotes in sec. 54 does not only mean the decrees of civil court declaring title and possession but shall include the decree of the Land Survey Tribunals specially for correction of the record-of-rights. This word “shall” imputes an obligation upon the concerned settlement-officers to obey and comply the decree by correcting the record in accordance with the decree. Therefore, we may say that if the officials concerned fail to comply with the said decrees they will be liable for non-compliance of court’s direction, i.e. contempt of court.

Effects of declaratory decree upon latter record-of­-rights:

Sometimes it is found a suit was filed challenging only the S.A. record and during pendency of the suit, the latter BRS/BS record had also been wrongly published in the names of same defendants and then the plaintiff got the decree for declaration of title. Then problem arises as to that whether the Revenue-officers shall be bound to correct the last BRS Khatian too according to said decree upon S.A. khatian only or the plaintiff shall be driven to file another suit for correction of that BRS record.

Upon such plaint of containing only SA records the decree would be drawn up only taking said SA plots and khatians; the latter BS record would be unknown to that decree, therefore, when the decree does not contain present record-of-rights Khatian and plot numbers then by that decree present record-of-rights cannot be corrected. However, solutions exists for this, such as, during pendency of the earlier suit when the latter BS record was published the plaintiff should amend his plaint by stating the facts of said BS record and bringing the said BS plot and khatian numbers in the schedule to the plaint.

The decrees containing plot and Khatian numbers only of previous record-of-rights have no force to correct the latter record-of-rights:

We also contentiously observe that even after publication of the last (BRS) record-of-rights some suits are filed containing in its schedule to the plaint only the C.S. or at best upto SA record’s khatian and plot numbers. Under such plaints the decree shall be drawn up upon only those previous plots and khatians. The present Khatians and plots shall be totally unknown and ignorant to that decree. Under such decrees too the present record-of-rights cannot be corrected or mutated or sub-divided for payment of rents. After publication of last BRS record, whether draftly or finally, the plaint must contain in its schedule the said last record’s plot and khatian and if does not the suit cannot be decreed. Because, it would lead to multiplicity to suits which is totally barred u/o. 2 rr. 1 & 2 of the Civil Procedure Code.[2] Moreover, such a decree cannot be amended u/s. 152 of CPC, because under this section only the mistake can be corrected. But inserting latter record’s plot and Khatian number would mean inserting a totally new case of action and new dispute between the parties and may be among new (last recorded tenants) parties too.

How to correct the record-of-rights in execution of decrees of the Land Survey Tribunal:

Sub-sec. (8) of sec. 145A provides that the Land Survey Tribunals can direct the concerned officials to correct that record according to its decision. But the SAT Act no where states that how the concerned officials shall correct the record. In this respect the statute is that under any decree for declaration of title by a civil court the Revenue-officers shall correct record-of-rights under the mandate of sec. 54 of SAT Act; ref. 62 DLR 31, 53 DLR 506, 56 DLR 525, 44 DLR (AD) 291, 12 DLR 266. As there is no clarification in any as to how a decree u/s. 145A(8) of SAT Act shall be executed, taking analogy from sec. 54, it may be presumed that such decrees for correction of the record u/s. 145A(8) shall also be executed u/s. 54 SAT Act as like a decree of the civil court passed u/s. 42 of Specific Relief Act 1877.[3]

Who are ‘officials concerned’:

Sub-sec. (8) of sec. 145A provides that the Land Survey Tribunals can direct the ‘concerned officials’ to correct the record-of-rights. From this portion of the statute it is clear that the government officials concerned shall comply with the decree of the Tribunal passed under this sec. 145A(8) of SAT Act. But the SAT Act no where in the Act does clarify as to that who the ‘concerned officials’ are as meant in this section. However, from the provisions of r. 23(4) of the Tenancy Rules, 1955 we can construe that for the purpose of correcting record, the Revenue-officer shall mean the Assistant Commissioner (Land) concerned; as such he shall first comply the decree for correction of the record and thereafter he shall convey the said order of compliance to the office of the Deputy Commissioner and the Tahsil office for correcting the records maintained in their offices accordingly.

Methods of correcting record-of-rights under the decree of the Tribunal:

Rules 22-24 of the Tenancy Rules, 1955 provide the procedures for correction of the final record-of-rights. However, mentionable that these rules (22-24) provide procedures to be followed by the concerned revenue-officials in correcting the record u/s. 143 of the SAT Act, i.e. when it is necessary to decide by such authority whether the record is liable to be corrected. But when the said authority is to correct the record under a decree of the civil court either u/s. 145A(8) of the SAT Act or u/s. 42 of S.R. Act, both read with sec. 54 of SAT Act, he no longer needs to follow all the procedures of said rules.

However, he needs to follow the prescription of the r. 23(4).

Rule 23(4) is reproduced here as follows: “The Revenue-officer shall, either on application or on receipt of a report under clause (j) of sub-rule (1), for the correction of any entry that has been procured by fraud in the record-of-rights after final publication thereof, after consulting the previous settlement records, preliminary rent-rolls, draft record-of-rights, Sub-divisional and Tahshil copies of records modified under section 46 of the Act holding-wari-rent-rolls and Register II, and making such other enquiries as he considers necessary, direct excision of the fraudulent entry, and his act in doing so being a ministerial act, shall not be open to appeal. At the same time, the Revenue-officer shall make the correct entry, having note against the excised entry that is fraudulent, and make in the record a reference to a proceeding in which the reasons for excision have been stated. He shall also direct similar correction in the record-of-rights maintained in the Sub-divisional record room and the Tahsil office and shall supply corrected copies of the record-of-rights to the parties concerned.”

From this rule we find that the Revenue-officer shall correct the Khatian in the record maintained in his office by giving necessary notes according to the decree of the Tribunal and shall also take necessary steps for correcting all other Khatians maintained in the Deputy Commissioner’s record room as well as of the Tahsil office. He also will supply a copy thereof to the concerned party.

The Revenue officer shall not correct/mutate record-of-rights if the decree is not specified as to how and in which shares the impugned Khatian shall be corrected:

We have already seen earlier that as per sub-sec. (8) of sec. 145A SAT Act the decree of the Land Survey Tribunal must be specified as to how and in which share the disputed khatian shall be corrected; in other words the decree shall direct not only to correct the plaintiff’s share but the other co-sharers’ shares shall also be specified in the decree; otherwise the parties would be driven to multiplicity of litigations which is barred u/o. 2 rr. 1/2 CPC.

 Furthermore, where a decree is presented for execution made by a court which apparently had no jurisdiction, the executing court is entitled to refuse to execute it, 35 DLR 18, 33 DLR (AD) 17. Moreover, the executing court cannot and shall not execute the decree when the decree cannot be executed due to non-specifications of decretal lands; ref. 23 BLD (AD) 98.

When a decree for correction of the record u/s. 145A(8) does not specifically state the shares of the parties as discussed above, i.e. in which shares the Khatian shall be corrected, the Revenue-officers shall be puzzled by such decrees to execute the same, in other words, such a decree is not capable to be executed as it is, rather for its execution the revenue officers shall have to go beyond the terms of the decree. In such circumstances, under the principles of law respecting obligation to obey a decree by the executing court, as shown above, for such unspecified decree the revenue-officers shall not be bound to correct the Khatian. A decision reported in 21 CWN 492 may help us to take this view.

Concluding talks: At last we may recommend that if the decrees of courts are sufficiently clear to be executed and if the officials concerned can follow the concerned laws in mutation proceedings, the said works shall be easy, quick and correct.

[1] Hereafter SAT Act

[2] Hereafter CPC

[3] Hereafter S.R. Act

About The Writer

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Md. Mukhlasur Rahman

Joint District and Sessions Judge, Judge Court, Satkhira

Bangladesh

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