Smt.Nasima Banu Sayyed Nabi Ahmad vs Smt. Jayashri Narayan Khambe & ...
2016 Latest Caselaw 2958 Bom

    Rane                                   * 1/5 *                WP-3261-1997
                                                                   17June2016

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                   CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO. 3261 OF 1997




                                                     
    Smt. Nasima Banu Sayyed




                                                    
    Nabi Ahmad, residing at
    "Mandavi Mohalla", At &
    Post-Alibaug, Taluka-Alibaug,
    District-Raigad                                  .....Applicant/Petnr




                                                
                                                     (Orig. Applicant)
          V/s.                      
    1. Smt. Jayashri Narayan Khambe
    residing at & post Moronde,
    Taluka-Alibaug, District-Raigad
                                   
    2. Shri. Latif Mahamud Patil,
    residing at & post Ramraj,
    Taluka-Alibaug, Dist. Raigad,
        


    3. The State of Maharashtra,
     



    through Additional Collector,
    Raigad, Alibaug.

    4. Shri. Surendra Joshi,





    Court Commissioner and Advocate
    at & post - Alibaug, Taluka-Alibaug
    District-Raigad

    5. Shri. J.L. Pimple, President,





    Maharashtra Revenue Tribunal,
    Old Secretariat Annexe, Bombay                   .....Opponents
                                                     (Opponent No.1 to
                                                     4 , Orig. Opponents)


                                          ****

     Rane                                  * 2/5 *                     WP-3261-1997
                                                                       17June2016

Mr. K.P. Shah a/w. Mr. P.B. Shah, Advocate for the petitioner.

Mr. Anil L. Desai, Advocate for respondent no.1.

Mr. R.S. Desai a/w. Mr. Shakuntala A. Mudbidri for respondent no.2.

CORAM :- SMT. R.P. SONDURBALDOTA, J

DATED : 17TH JUNE, 2016.

JUDGMENT :-

1). This petition is directed against the order dated 29 th March, 1996 passed by the Additional Collector, Raigad in Case No.

Tenancy/KAT/2/4337/95 and the order dated 24 th December, 1996 passed by the Maharashtra Revenue Tribunal in Revision

Application No. Ten. A.109/96.

2). The petitioner had filed Special Civil Suit No. 10 of 1989

against respondent no.1 for specific performance of the agreement for sale of the land admeasuring 1 hectare 12 Ares at Survey No.31, now Gat No.39 0f Moronde, Taluka-Alibaug, District-Raigad. The

land at Survey No.31 was in possession and cultivation of one, Hari Pandu Khambe as a tenant. He became deemed purchaser thereof on the Tillers day. under Section 32 of The Bombay Tenancy and Agricultural Lands Rules, 1956. On initiation of the proceedings under Section 32G of the Bombay Tenancy and Agricultural Lands

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Act, 1948 (for short "the Tenancy Act") and on payment of the purchase price, the land was transferred to the name of Hari

Khambe. After the death of Hari, his son Narayan inherited the

land and his name was mutated in the revenue records. Narayan agreed to sell a portion of that land for consideration of Rs.18,000/- under the agreement of sale dated 5 th December, 1986

to the petitioner and had received a sum of Rs.4,000/- as earnest money. He had agreed to execute the necessary sale-deed in favour of the petitioner after obtaining permission for sale under Section

43 of the Bombay Tenancy Act. Narayan had, in the meantime,

transferred a portion of that land to his wife, respondent no.1. When the transaction of sale was not completed by respondent no.1

and her husband, the petitioner had filed Special Civil Suit No. 10 of 1989 against them. It was decreed on 28th July, 1992. Respondent no.1 and her husband failed to obtain permission for sale from the

Sub-Divisional Officer, Alibaug as required under Section 43 of the

Bombay Tenancy Act within a period of 2 months from the date of the judgment. The petitioner therefore made an application to the Court for appointment of Commissioner to obtain necessary

permission for sale and for execution of the necessary documents. That application was allowed and respondent no.4 was appointed Commissioner by the order dated 22 nd June, 1994. Thereafter,

respondent no.4 made the necessary application to the Sub- Divisional Officer, Alibaug Division, Alibaug for permission under Section 43 of the Bombay Tenancy Act for sale of the land to the petitioner. During pendency of that application, respondent no.2 appeared and filed an application on 13th March, 1995 claiming that

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he is the owner and in possession of the land at Survey No.31 and requested that no permission for sale of the land be given to any

person. Then, respondent no.1 and her husband also appeared

before the Authority and stated that the land bearing Survey No.31 was not in their possession and cultivation but the same was in cultivation of respondent no.2. The authority then rejected the

application by its judgment and order dated 29 th March, 1996. Being aggrieved by that order of the Additional Collector, Raigad the petitioner filed Revision Application before the Maharashtra

Revenue Tribunal. The Tribunal by its order dated 24 th December,

1996 dismissed the Revision Application.

3). During the course of the hearing of the application filed

by respondent no.4 under Section 43 of the Bombay Tenancy Act, the Collector had called for report from the Tahsildar who had visited the site and submitted his report on the basis of which the

Collector had come to the conclusion that the land agreed to be sold

to the petitioner was in possession to respondent no.2 and that respondent no.1 and her husband had no concern with the same. Respondent no.2 had contended specifically that, at the time of

issuance of certificate under Section 32G an error had crept in the records as regards the description of the land. According to him, the description of the land owned by respondent no.1 and her husband,

is Survey No.26 and not Survey No.31. The Collector noted that, the panchanama of the land at Survey No.31 drawn by Tahsildar showed that respondent no.2 had planted coconut trees on the land which were 8 to 9 years old. He also claimed to have planted 200 mango trees on the land. Besides, the map drawn by the

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Competent Authority with the boundaries drawn of Survey No.26 and Survey No.31 indicated that there was mis-description of the

land in the proceedings under Section 32G of the Tenancy Act.

Further, respondent no.2 was not a party to the proceedings under Section 32G of the Tenancy Act and therefore the order on it was not binding on him. Also he was not claiming any right to the land

at Gat No.26. The Tahsildar had recorded the statements of the adjoining landholders who had supported respondent no.2. In the circumstances, the Collector held that it will not be justified to

grant permission for sale of the land at Gat No.31.

4).

The Maharashtra Revenue Tribunal rejected the revision against the order. Considering the above facts and

circumstances of the case, the Tribunal could not have passed any other order. It is surprising that, the petitioner instead of proceeding to take corrective steps as regards the description of the

property sold to her, challenged the order of the Collector. In any

case, though the Tribunal rejected the petitioner's revision, it has made an observation in favour of the petitioner. It has held that, no permission under Section 43 of the Tenancy Act need be taken in

case of transfer by the heirs of the original tenant. The petitioner contends this view is not correct. However, in the facts and circumstances of the case, this aspect need not be gone into in the

present proceedings.

5). For the reasons stated above, the Writ Petition is dismissed. Rule is discharged.

(SMT. R.P. SONDURBALDOTA, J)