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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 2349 OF 2002
1 Rangnath Kisan Gadekar,
Age 48 years, occ. Agriculture,
2 Rajgopal Mulchand Bajaj,
Age 38 years, Occ. Agriculture,
Both R/o. Paradi, Tq. Bhoom,
District Osmanabad
ig ...Petitioners
Versus
1 Kum. Vaishali Chaturbhuj SHinde,
Age 14 years,
2 Kum. Vandana Chaturbhuj Shinde,
Age 10 years,
3 Kum Meera Chaturbhuj Shinde,
Age 8 years,
Nos. 1 to 3 are minors
u/g mother Mangal w/o. Chaturbhuj Shinde,
Age 36 years, Occ. Household,
R/o. Mankeshwar, Tq. Paranda,
District Osmanabad
4 Mangal w/o. Chaturbhuj Shinde,
Age 36 years, Occ. Household,
R/o. Mankeshwar, Tq. paranda,
District Osmanabad
5 Kamgar Talathi, Mankeshwar,
Tq.Paranda, District Osmanabad
6 Tahsildar, Bhoom,
District Osmanabad
7 Sub Divisional Officer, Bhoom
District Osmanabad
8 Additional Collector,
Osmanabad, District Osmanabad
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9 Additional Divisional Commissioner,
Aurangabad Regional, Aurangabad
10 The Secretary and Officer on Special Duty
(Appeals), Revenue and Forest Department
State of Maharashtra,
Mumbai
11 State of Maharashtra
(Copy to be served on the
Government Pleader, High Court of
Judicature at Bombay,
Bench at Aurangabad) ...Respondents
.....
Mr. V.J. Dixit, senior counsel, advocate for the petitioners
Mr. S.S. Thombre, advocate for respondent Nos.1 to 4.
Mr. N.D. Kendre, AGP for the respondents 5 to 11.
.....
CORAM: S.S. SHINDE, J.
DATE OF RESERVING
THE JUDGMENT : 29.08.2009
DATE OF PRONOUNCING
THE JUDGMENT : 07.09.2009
JUDGMENT:-
1 This writ petition is directed against the final judgment and order
dated 30.3.1994 passed by Sub Divisional Officer, Bhoom, in file No.
1993/ROR/727, the order dated 23.3.1996 by the Additional Collector,
Osmanabad in Case No. RTS/69/93/94 and the order dated
16.12.1998 passed by the Divisional Commissioner, Aurangabad
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Division, Aurangabad in Case No. 96/ReV/R/143.
2 The background facts of the case as as under:-
The subject matter of this writ petition is a mutation entry No.
976 by Tahsildar on 8.7.1991 in respect of land Gat No. 650
admeasuring 1 H 41 R situated at village Mankeshwar in Osmanabad
district. The said land was originally owned by Ganpati Shinde and
after his death, it was by inheritance came to his two sons viz. Baban
and Chaturbhuj, now both the sons are dead. In the year 1988, an
oral partition between deceased Baban and Chaturbhuj, in which
Narayan sought 3 H 2 R portion from land Gat No.650 was allotted to
the share of Chaturbhuj and remaining southern portion was given to
the share of heirs of deceased Baban.
Chaturbhuj sold the portion of of 1 H 41 R tot he petitioner No.1
for his medical expenses by registered sale deed dated 14.11.1987
and mutation entry to that effect was made on 2.7.1986. Respondent
Nos. 1 to 4 herein, who are L.Rs. of Chaturbhuj filed R.C.S. No. 35 of
1987 in the Court of C.J.S.D. Paranda on 16.11.1987 for the relief that
the sale deed executed between the parties are not binding on the
legal heirs of deceased Chaturbhuj and prayed that the suit came to
be dismissed on 30.7.1999.
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On 18.6.1991 i.e. during pendency of the R.C.S. No. 35 of 1987,
the petitioner No.1 herein executed registered sale deed in favour of
petitioner No.2 and mutation entry No. 976 was certified on 8.7.1991.
Respondent No.1 to 4 herein applied to the Sub Divisional Officer,
Bhoom for cancellation of the mutation entry No. 976. The Sub
Divisional Officer by his order dated 30.3.1994 set aside the mutation
entry No.976. Aggrieved by the said order, the petitioner filed R.T.S.
Appeal No. 59 of 1994 before the Additional Collector, Osmanabad
and by his order dated 23.2.1996 the said appeal came to be
dismissed. Against the said order, the petitioner filed revision before
Divisional Commissioner, Aurangabad which came to be dismissed by
order dated 16.12.1998. The petitioner filed another revision
application before the State Government. By order dated 7.11.2001,
the same revision came to be dismissed as not maintainable. Hence,
this writ petition.
3 Learned counsel appearing for the petitioners submitted that the
sale deed in favour of petitioner No.1 was never challenged by the
respondents, and therefore, the further registered sale deed in favour
of the petitioner No.2 cannot be questioned. It is further submitted that
petitioner No.1 also became absolute owner of the property on the
basis of the registered sale deed executed by Chaturbhuj during his
life time in the year 1983. It is further submitted that the petitioner No.
1 became absolute owner of the property, he validly transferred the
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said property to petitioner No.2 and the Revenue Officers have duly
certified the mutation entries to that effect. In view of this, it is not open
for the Revenue authority to cancel the mutation entry and its
certification and that too after lapse of so many years. It is further
submitted that the sale deed was never challenged by the respondents
and the petitioner No.1 was competent to sale the suit land in favour of
the petitioner No.2, therefore, the said transaction dated 18.6.1991 in
favour of petitioner No.2. by the petitioner No.1 cannot be doubted or
set aside. According to the learned senior counsel, principle of lis
pendency are not applicable in the revenue proceedings in any case
that can be validly made under Section 149 of the Maharashtra Land
Revenue code, 1966, Learned counsel has invited my attention to the
grounds in the petition and submitted that setting aside the mutation
entry amounts to serious consequences including the consequences
of suspending the sale deed and such power is not vested in the
revenue forum as contemplated under the provisions of the Land
Acquisition Act. It is further submitted that the suit filed by the
respondent herein is already dismissed and therefore, in any case the
order of cancellation of mutation entry cannot be permitted. The
authorities below have failed to prove that the mutation entry No. 976
as well as entry 469 have been drawn and duly certified as per law.
There is no any reason to cancel the same. Therefore, the learned
counsel submitted that this petition deserves to be allowed.
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4 Though the contesting respondents are duly served and
appearance is filed on their behalf, none appears for them.
5 I have carefully perused the order passed by the Sub Divisional
Officer, the order passed by the Additional Collector, Osmanabad, the
order passed by the Divisional Commissioner, Aurangabad Vision,
Aurangabad and the order passed by the Secretary and Officer on
Special Duty (Appeals), Revenue and Forest Department and found
that the S.D.O. Bhoom, Additional Collector, Osmanabad and
Commissioner, Aurangabad Division, Aurangabad have recorded the
findings that the mutation entry No. 976 was taken by the Tahsildar on
20.6.1991 pending the R.C.S. No. 35 of 1987 without issuing notice to
the respondents, though the present petitioner was defendant in the
said suit and he was aware that the R.C.S. No. 35 of 1987 is pending,
therefore, the authorities found that the Tahsildar has certified
mutation entry No.976 without notice to the respondents herein, who
are original plaintiffs in R.C.S. No. 35 of 1987 and therefore, S.D.O. in
the appeal of the respondent set aside the order of Tahsildar
sanctioning the mutation entry 976. On careful perusal of the findings
recorded by the authorities, it clearly emerges that all three authorities
have taken reasonable and plausible view.
6 Therefore, in writ jurisdiction, I do not find any reason to interfere
in the findings recorded by the courts below. There is no substance in
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in the writ petition. Hence, writ petition is dismissed. Rule discharged.
Interim relief, stands vacated.
7 It is made clear that the dismissal of the writ petition would not
preclude the petitioner to apply afresh for mutation entry in the light of
the pleadings of the petitioners that subsequently R.C.S. No.35 of
1987 is dismissed.
ig (S.S. SHINDE, J.)
rlj/
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