Bombay High Court
Bhausaheb Eknath Wagh And Anr vs The State Of Mah And Ors on 15 April, 2016
Bench: V.L. Achliya
wp5819-12
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5819 OF 2012
1] Bhausaheb s/o Eknath Wagh
Age : Major, Occu-Agril
R/o Loni (K) Tq. Vaijapur
District Aurangabad
2] Shantabai w/o Eknath Wagh
Age : Major, Occu-Agril
R/o Loni (K) Tq. Vaijapur
District Aurangabad. ... PETITIONERS
Versus
1] The State of Maharashtra
Through its Secretary
Revenue Department
Maharashtra State,
Mantralaya, Mumbai-32.
2] Trimbak s/o Dhondiba Wagh
Age Major, Occu-Agril
R/o Loni (K) Tq. Vaijapur
District Aurangabad.
3] Assistant Collector,
::: Uploaded on - 16/04/2016 ::: Downloaded on - 29/07/2016 22:28:07 :::
wp5819-12
-2-
Division, Vaijapur,
District Aurangabad.
4] Additional Collector,
Auragnabad.
5] Additional Commissioner
Aurangabad .. RESPONDENTS
....
Mr.N.R.Solunke, Adv. for petitioners
Mr.P.S.Patil,AGP for respondents no.1 & 3 to 5
Mr.S.S.Thombre Adv. for Respondent no.2
...
CORAM : V.L.ACHLIYA,J.
DATED : 15TH APRIL,2016
ORAL JUDGMENT :
Rule. Rule returnable forthwith. With consent of parties,
Petition is heard finally at the stage of admission.
2] Petitioners have filed this Petition challenging the orders dated
21/12/2003 passed by Assistant Collector, Vaijapur, District
Aurangabad and consequently order dated 22/8/2006 passed in
Appeal by Additional Collector, Aurangabad as well as the order
dated 21/01/2012 passed in Revision by Additional Commissioner,
Aurangabad on the grounds set out in the petition.
wp5819-12
3] Before adverting to appreciate the submissions advanced, it is
necessary to consider few facts leading to filing of the petition. The
fact is not in dispute that land admeasuring 1 Hectare 82 R out of Gat
No.27 was standing in the name of late Kausabai W/o Laxman Wagh
and the land admeasuring 1 Hectare 2 R out of said same Gat was
standing in the name of her husband Laxman Wagh. The fact is also
not in dispute that Kausabai died on 1/1/1994 leaving behind her
husband Laxman as a sole legal heir to inherit the right, title and
interest in her property. The land which was standing in the name of
Kausabai as well as the land which was standing in the name of
Laxman was sold by Laxman to petitioners no.1 and 2 respectively
vide separate Registered Sale Deed executed on 3/11/2001 for sale
consideration of Rs.1,80,000/-. After execution of Sale Deed
Laxman died on 22/11/2001. Petitioners made application to the
Tahsildar, Vaijapur District Aurangabad to record their names in the
record of rights. While the application moved by the petitioners was
pending for consideration before the Tahsildar, Vaijapur, the
respondent no.2 raised an objection. In the objection filed, the
purchaser raised the plea that Laxman had executed the Sale Deed
while his wife was not alive and the names of the legal heirs of
Kausabai were not recorded in relevant record of rights. Upon
considering the objections raised, the Tahsildar,Vaijapur has rejected
the objections and directed to record the names of petitioners by
following the procedure provided in the Rules.
4] The order passed by the Tahsildar, Vaijapur was challenged in
Appeal before the Assistant Sub Divisional Officer, Vaijapur who in
turn set aside the order by observing that unless the names of the
legal heirs of Kausabai are brought on record, the mutation entry in
the name of petitioners cannot be taken. The order passed by
Assistant Collector, Vaijapur was challenged in Appeal before the
wp5819-12
Additional Collector, Aurangabad. The Additional Collector though
observed in the order that the Sale Deed executed in favour of the
petitioners has not been challenged but maintained the order passed
by Assistant Collector, Vaijapur. In the Revision filed before the
Additional Collector the order has been maintained on same
grounds. Being aggrieved by said orders passed by respondents
no.3 to 5, the petitioners have preferred this Petition.
5] Mr.Solunke, learned counsel for the petitioners assailed the
order passed by respondents no.3 to 5 with contention that Kausabai
died in the year 1994 leaving behind her husband as a sole legal heir
to succeed the right, title and interest in the property. The Sale Deed
executed in favour of the petitioners has not been challenged,
therefore, the revenue authorities cannot refuse to take the mutation
entry only for the reason that the name of Laxman the sole legal heir
of late Kausabai was not recorded in record of rights before
execution of Sale Deed. On the other hand, learned counsel for
respondent no.2 supported the orders passed. It is contended that
the land in question was not self-acquired property of Kausabai but
the same was inherited by Laxman which he has transferred in the
name of Kausabai. It is further contended that respondent no.2 has
filed Civil Suit seeking partition in respect of said same land and said
Suit is pending. In counter to this submission, learned counsel for
petitioners has placed on record the copy of the judgment and order
dated 17/06/2013 passed by III Joint Civil Judge, Junior Division,
Vaijapur, District Aurangabad to point out that the Suit filed by the
respondent no.2 is already dismissed way back in the year 2013.
6] On due consideration of the submissions advanced, in my
view, the orders passed by respondents no.3 to 5 are not sustainable
in law. It is an admitted fact that the land which was purchased by
wp5819-12
petitioner no.2 was owned by Kausabai who died in the year 1994
leaving behind her husband Laxman as sole heir to succeed to her
estate. After the death of Kausabai, by virtue of inheritance, Laxman
has become sole owner of the property which was held by Kausabai.
Therefore, the right, title and interest in the property was devolved
upon Laxman after the death of Kausabai. It is no one's case that
she had executed Will or any other document conferring her right,
title and interest in favour of some other person. By Sale Deed
executed in the year 2001, the husband of Kausabai i.e. Laxman sold
piece of land which was inherited by him from Kausabai as well as
his land standing in his own name in favour of petitioners no.1 and 2.
Therefore, they are well within their right to apply for mutation entry
on the basis of the Sale Deed. Only for the reason that after death of
Kausabai, the name of Laxman was not mutated in the record of
rights, the request of petitioners to record their names in the record
of rights cannot be refused by revenue authorities. The reasons
recorded by Assistant Collector and subsequently confirmed by
respondents 4 and 5 are per se incorrect and unsustainable in law.
There was no valid reason for the Assistant Collector. Vaijapur to set
aside the order passed by the Tahsildar. The reasons recorded for
setting aside the order passed by Tahsildar, Vaijapur appear to be
strange and contrary to law. In view of this, the orders passed by
respondents no.3 to 5 are not sustainable in law. Respondent no.2
has no right, title and interest in the property so as to object to record
the mutation entry in the name of petitioners. Apart from this, the
Suit filed by the respondent no.2 has been dismissed on merit by
judgment and order dated 17/6/2013 delivered by III Joint Civil
Judge, Junior Division, Vaijapur, Dist.Aurangabad. In view of above,
Writ Petition deserves to be allowed. Accordingly, Writ Petition is
allowed in terms of prayer clause "B" and consequential to that the
order passed by Tahsildar, Vaijapur dated 30/5/2003 stands
wp5819-12
restored. Accordingly the respondents are directed to take further
steps as per order dated 30/05/2003 passed by Tahsildar, Vaijapur to
record the names of petitioners in the revenue record pertaining to
said property.
7] Rule made absolute in above terms. There shall be no order
as to costs.
ig (V.L.ACHLIYA,J.)
umg/
