Bombay High Court
Prabhakar Krishnarao Pulliwar ... vs Smt. Nilima Wd/O Dinkarrao ... on 24 November, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 3142 OF 2015
PETITIONERS : Prabhakar Krishnarao Pulliwar (Dead) thru. LRs
1] Smt. Neeta Wd/o Prabhakar Pulliwar,
Aged about 56 years, Occu. Agriculturist,
2] Shri Parag S/o Prabhakar Pulliwar,
Aged about 36 years, Occu. Agriculturist,
ig 3] Shri Prashant S/o Prabhakar Pulliwar,
Aged about 34 years, Occu. Agriculturist,
Petitioner nos.1 to 3 through its power of attorney
holder Shri Pawan Fattyelal Darak
All petitioner nos.1 to 3 R/o Village Bembal,
Tah. Mul, Dist. Chandrapur.
- VERSUS -
RESPONDENTS : 1] Smt. Nilima Wd/o Dinkarrao Pulliwar,
Aged about Major, Occu. Housewife
R/o C/o Vinay Joshi, 27E, Clywood-9 Housing
Society, Darga Road, Aurangabad.
2] Additional Commissioner, Amravati
Having its office at Collector Compound,
Amravati.
3] Additional Collector,
Having its office at Collector Compound,
Amravati.
4] Sub-Divisional Officer, Morshi,
Having its office at Tahashil Karyalay,
Morshi, Dist. Amravati.
5] Nayab Tahsildar, Morshi,
Having its office at Tahashil Karyalay,
Morshi, Dist. Amravati.
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Mr. A. A. Sambarey, Advocate for the petitioners
Mrs. A. R. Taywade, A.G.P. for the respondent nos.2 to 5
None appears for the respondent no.1
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CORAM : PRASANNA B. VARALE, J.
DATE : NOVEMBER 24, 2016.
ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith. By order dated
15.09.2016, this Court by referring to the controversy involved in the
petition on the backdrop of the submissions of the learned counsel for
the petitioners, adjourned the matter so as to give one more opportunity
to the respondents to contest the petition, making it clear that the
petition would be heard finally at the stage of admission on the next
date of hearing, if convenient to the Court. On the next dates, i.e. on
05.10.2016 and 26.10.2016, none appeared for the respondent no.1
and today also none appears for the respondent no.1. It seems that the
respondent no.1 is not interested in contesting the petition in spite of
granting several opportunities. In view of above and considering the
controversy involved in the petition, it is heard finally with the consent
of the learned counsel for the parties.
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3] By the present petition, the petitioners challenge the order
passed by the respondent no.2 - Additional Commissioner, Amravati,
dated 22.07.2011 in Appeal No. 223/RTS-64/2008-2009 at Talni.
4] Mr. Sambaray, the learned counsel for the petitioners
submitted that the petitioners had approached the respondent-revenue
authorities for recording the mutation entries in respect of an
agricultural land in Survey No. 38/1, admeasuring 5 acres. It was the
submission of the petitioners that one Smt. Umabai Pulliwar the mother
of deceased petitioner - Prabhakar Pulliwar, had purchased the land by
way of a registered Sale Deed and it was her self-acquired property.
Smt. Umabai, during her lifetime had executed a Will Deed, dated
02.02.1998 and bequeathed the said property to her son Prabhakar i.e.
respondent no.1 herein. Smt. Umabai died on 21.03.1998 and as per
the Will, respondent no.1 became the absolute owner of the property.
5] It was submitted by the petitioners that on approaching the
revenue authorities for mutation entry on the basis of Will Deed of Smt.
Umabai, on 16.07.2000, the notices were directed to be issued to the
interested parties. The learned counsel for the petitioners invited my
attention to the order dated 16.07.2000 (Annexure-A) of respondent
no.5 - Naib Tahsildar and submitted that the said order was self-
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contradictory as, one hand, notices were directed to be issued to the
interested parties with a direction to keep the matter for further orders
at next camp and on the other hand, it was stated that entry is rejected.
The learned counsel submitted that when the revenue authorities were
approached on the basis of this self-contradictory order, it was advised
to the petitioners to file fresh application. It is further submitted that in
the year 2005, the revenue authorities recorded the mutation entry in
the name of the petitioners. The said entry was recorded as Entry No.
1809 and being aggrieved by the said order, an appeal was preferred by
the respondent no.1 Smt. Nilima Pulliwar, daughter-in-law of deceased
Smt. Umabai and wife of another son of Smt. Umabai, before the
respondent no.4 - Sub-Divisional Officer, Morshi. The respondent no.4
SDO, on perusal of the material as well as on hearing the submissions of
the contesting parties, allowed the appeal by order dated 23.05.2006
thereby cancelling Entry No.1809 recorded by the Circle Officer on
13.12.2005. The respondent no.4-SDO further directed the concerned
Talathi to forward the fresh application submitted by the petitioners
along with his report to the respondent no.5- Tahsildar and in turn,
Tahsildar, Morshi was directed to pass the order by giving opportunity
of hearing to the parties.
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6] It seems that the respondent no.1- Nilima had initiated the
proceedings before the respondent no.5 - Naib Tahsildar, Morshi and in
that proceeding, order of the respondent no.4- SDO, dated 23.05.2006
was placed on record. The respondent no.5 sought a detailed report
from Talathi. The notice was issued to the respondent no.1 by the
respondent no.5 for remaining present before him on 05.06.2007. As
the notice was not served, again on 21.06.2007, 09.07.2007,
23.07.2007 and 14.09.2007 the notices were issued and though the
notices were served, the respondent no.1 failed to appear before the
respondent no.5. As a last opportunity, again notice was published
through newspaper publication. Even in response to the notice
published in newspaper, none appeared for the respondent no.1, nor
she herself appeared before the respondent no.5 and as such the
respondent no.5 - Naib Tahsildar observed that respondent no.1 was
not interested in prosecuting the proceeding, whereas the petitioner -
Prabhakar had attended the proceedings and placed on record certain
documents in support of his case. In the detailed order, respondent
no.5 - Naib Tahsildar referred the sequence of events, documents
placed before him, the order passed by the respondent no.4- SDO and
the rival contentions of the parties. The respondent -Naib Tahsildar,
considering the points namely failure of the respondent no.1 to remain
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present before the authority in spite of grant of opportunities and no
challenge raised to the Will Deed of Smt. Umabai in the competent
Court of law, passed the order dated 19.11.2007 in favour of the
petitioners. The said order was challenged by the respondent no.1 by
presenting an appeal before the respondent no.4-SDO. The respondent
no.4-SDO found no favour with the respondent no.1 and dismissed the
appeal by order dated 10.06.2008.
7] The respondent no.1 then preferred an appeal against the
order passed by the respondent no.4-SDO, dated 10.06.2008 before the
respondent no.3 - Additional Collector, Amravati. The respondent no.3
- Additional Collector heard the learned counsel for the respective
parties and also called the record of the case. The respondent no.3
found no substance in the ground raised by the appellant - Smt. Nilima
of non-grant of opportunity. The respondent no.3 also found no favour
in the challenge raised by the appellant-Smt. Nilima and observed that
though, the Will Deed executed by Smt. Umabai in favour of petitioner-
Prabhakar was in knowledge of the respondent no.1, it was neither
challenged before the competent Court of law nor there was any
material placed on record to show that the competent Court of law
invalidated the Will Deed. Thus, the respondent no.3 - Additional
Collector dismissed the appeal by order dated 10.12.2008 and
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maintained the order passed by the respondent no.4-SDO, dated
10.06.2008. The respondent no.3- Additional Collector further granted
liberty to the respondent no.1 herein to challenge the Will Deed in the
competent Court of law and directed the petitioner-Prabhakar and the
respondent no.1 not to disburse the property for a period of three
months from the date of order. The order passed by the respondent
no.3- Additional Collector was further challenged before the respondent
no.2- Additional Commissioner by preferring an appeal. The
respondent no.2, by the impugned order dated 22.07.2011 allowed the
appeal, thereby setting aside the orders of the lower authorities and
further directing the Talathi to effect the mutation of survey No.38/1 of
Mouja Talani in the name of legal heirs of Smt. Umabai. The mutation
entry Nos.1809 and 1601 were also set aside.
8] Mr. Sambaray, the learned counsel for the petitioners
vehemently submitted that the impugned order passed by respondent
no.2- Additional Commissioner is unsustainable on various grounds. It
was his first submission that the respondent no.2 has grossly erred in
entertaining the appeal and converting the same in revision petition
suo-motu. He further submitted that the respondent no.2 - Additional
Commissioner also erred in observing that the petitioners have failed to
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challenge the order of the respondent no.4-SDO and in connivance with
the revenue authorities, obtained the order dated 16.07.2000.
9] The learned counsel for the petitioner submitted that the
appeal preferred by the respondent no.1 before the respondent no.2 was
under Section 247 of the Maharashtra Land Revenue Code, 1966. The
learned counsel, by inviting my attention to the provisions of Section
247 of the MLR Code, submitted that in clear words, the said provision
bars the third appeal before the authority. He submitted that the
respondent no.1 had already availed the remedy of filing two appeals.
Thus, the third appeal ought not to have have been entertained by the
respondent no.2- Additional Commissioner. He further submitted that
under the provisions of MLR Code and more particularly under Section
257 thereof, there is a remedy of a revision before the authority either
on approaching the authority by the party or the authority exercising
the power taking up remedy of revision. But, in no case, the authority
could have a third appeal in a revision. Thus, it was the submission of
the learned counsel for the petitioners that the act of the respondent
no.2 - Additional Commissioner was beyond the powers vested with
him and he exceeded his powers in entertaining the appeal treating the
same as revision petition.
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10] The learned counsel for the petitioners then submitted that
the respondent no.2 also failed to appreciate that the respondent no.3 -
Additional Collector, in the appeal preferred by the respondent no.1,
has dealt with all the grounds raised by the respondent no.1. He further
submitted that before respondent no.5 - Naib Tahsildar, in spite of
various opportunities granted to the respondent no.1, she failed to
appear and as such the respondent no.3 - Additional Collector observed
that there was no merit in the ground raised by the respondent no.1
that no opportunity of hearing was granted to the respondent no.1. The
learned counsel for the petitioners further submitted that respondent
no.2 - Additional Commissioner also erred in observing that Mutation
entry No. 1809 cannot survive and is obtainable as it was taken on the
basis of Will Deed. The learned counsel submitted that by order dated
23.05.2006, the respondent no.4-SDO had cancelled entry No.1809 and
further directed the Talathi to consider fresh application filed by the
petitioners and pass the orders afresh. The learned counsel further
submitted that respondent no.3- Additional Collector found that the
Will Deed was not challenged by the respondent no.1 in the competent
Court of law. Thus, the observations of the respondent no.2-Additional
Commissioner on the backdrop of these facts were running contrary to
the record, was the submission of the learned counsel for petitioners.
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11] Mrs. Taywade, the learned Assistant Government Pleader
supports the impugned order passed by the respondent no.2 -
Additional Commissioner.
12] On going through the relevant provisions of the MLR Code,
more particularly Sections 247 and 257 thereof, I find considerable
merit in the submission of the learned counsel for the petitioners.
Section 247 of the Code, which deals with 'appeal and appellate
authorities', clearly states that in no case the number of appeals shall
exceed two. As well, Section 257 of the Code nowhere authorizes the
authority to entertain an appeal converting the same in revision. There
was merit in the submission of the learned counsel for the petitioners
that the respondent no.2- Additional Commissioner exceeded in
exercising power and entertained the appeal converting it in revision.
13] On a perusal of the order dated 23.05.2006 passed by the
respondent no.4-SDO, order dated 19.11.2007 passed by respondent
no.5-Naib Tahsildar and the order dated 10.06.2008 passed by
respondent no.4-SDO, I find that the respondent no.3 - Additional
Collector, Amravati has dealt with all the grounds raised by the
respondent no.1 in the appeal and also on going through the record,
was justified in dismissing the appeal presented by the respondent no.1.
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Perusal of the order passed by the respondent no.2 - Additional
Commissioner, shows that it was submitted before him on behalf of the
petitioners herein that the revenue authorities are having no powers to
decide the genuineness or otherwise of the Will Deed and it is for the
competent Civil Court to decide the same. The respondent no.2-
Additional Commissioner has failed to consider this aspect also of the
matter in its proper perspective.
14] Taking into consideration all the above referred facts, in my
opinion, the impugned order passed by the respondent no.2 is
unsustainable and the same deserves to be quashed and set aside. In
the result, the writ petition is allowed.
The order passed by the respondent no.2 - Additional
Commissioner, Amravati, dated 22.07.2011 in Appeal No. 223/RTS-
64/2008-2009 at Talni is quashed and set aside, by maintaining the
order passed by the respondent no.3 - Additional Collector, Amravati ,
dated 10.12.2008.
The writ petition is disposed of. Rule is made absolute
accordingly. No order as to costs.
JUDGE
Diwale
