Bombay High Court
Dhondiba Sukhdeo Mote vs Patilbuwa Pandu Mote (Died) Lrs ... on 30 November, 2016
Bench: T.V. Nalawade
1 WP 1839 of 2010
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 1839 of 2010
* Dhondiba Sukhdeo Mote,
Age 60 years,
Occupation: Agriculture,
R/o Shahajapur,
Taluka Parner,
District Ahmednagar. .. Petitioner.
Versus
1) Patilbuwa Pandu Mote,
Since deceased through
legal representatives.
1A Samabai Patilba Mote,
Age 35 years,
Occupation: Household.
1B Baba Patilba Mote,
Age 40 years,
1C Visabai Bhaskar Gange,
Age 38 years,
Occupation: Household.
1D Lahanabai Patilba Mote,
Age 42 years,
Occupation: Household.
1E Hausabai Patilba Mote.
All R/o Bhorwadi,
Taluka & Dist. Ahmednagar.
2) Dattu Pandu Mote,
Age 36 years,
R/o Shahajapur, Taluka Parner,
District Ahmednagar.
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3) Bhau Santu Mote
Since deceased through
legal representatives
3A Babu Bhau Mote
Since deceased through
legal representatives
3A-1 Nathu Babu Mote,
Age 32 years.
3A-2 Gulab Babu Mote.
Age 42 years.
3A-3 Zumbar Babu Mote
Age 38 years.
3A-4 Raosaheb Babu Mote
Age 32 years.
3A-5 Samubai Babu Mote,
Age 45 years,
Occupation: Household.
Nos.3A-1, 3A-3 and 3A-4
R/o Machhi Band,
Barfachi Peti, Sasoon Dock,
Mumbai.
Nos.3A-2 & 3A-5 R/o
Shahajapur, Taluka Parner,
District Ahmednagar.
3B Baban Bhau Mote,
Age 28 years,
3C Bansi Bhau Mote
Age 31 years.
Both R/o Machhi Band,
Barfachi Peti, Sasoon Dock,
Mumbai.
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4) Maruti Santu Mote
Since deceased through
legal representatives
4A Gunabai Maruti Mote
(Deleted as per Exh.218).
4B Dashrath Maruti Mote
Age 40 years
4C Janabai Arjun Mote
Age 43 years,
Occupation: Household.
4D
Nanubai Nana Mhaske
Age 48 years,
Occupation: Household.
4E Venubai Ramdas Mhaske
Age 30 years,
Occupation; Household.
4F Sindubai Ranba Gayake
Age 58 years,
Occupation: Household.
4G Indubai Sarjerao Pawar,
Age 38 years,
Occupation: Household.
Nos.4B, 4D, 4E and 4F
R/o Shahajapur, Taluka Parner,
District Ahmednagar.
No.4C R/o Nimalak,
Taluka & District Ahmednagar.
No.4G r/o Bagunde, Taluka Parner,
District Ahmednagar.
5) Babu Bhau Mote
Since deceased through
legal representatives:
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5A Nathu Babu Mote,
Age 32 years.
5B Gulab Babu Mote,
Age 42 years.
5C Zumbar Babu Mote
Age 38 years.
5D Raosaheb Babu Mote,
Age 32 years.
5E Samubai Babu Mote
Age 45 years,
Occupation: Household.
Nos.5A, 5C and 5D
R/o Machhi Band Barfachi Peti,
Sasoon Dock Mumbai.
No.5B & 5E R/o Shahajapur,
Taluka Parner, Dist Ahmednagar.
6) M/s Surgeon Realities Pvt. Ltd
Through
Shri. Nilesh Villabhdas Dhanani,
Age 33 years,
R/o Sainik Nagar, Plot No.24,
Sadar Bazar, Satara,
District Satara.
7) The Tahsildar, Ahmednagar,
District Ahmednagar.
8) The State of Maharashtra
Through the Collector,
Ahmednagar. ... Respondents.
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Shri. Mukul Kulkarni, Advocate, for petitioner.
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Mrs. M.S. Jagtap, Advocate for respondent Nos.4-B, 4-, 4-
D, 4-F and 4-G.
Shri. S.D. Kulkarni, Advocate for respondent No.6.
Shri. S.K. Tambe, Assistant Government Pleader, for
respondent Nos.7 and 8.
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CORAM: T.V. NALAWADE, J.
DATE : 30 NOVEMBER 2016
ORAL JUDGMENT:
1) Rule. Rule made returnable forthwith. By
consent, heard both sides for final disposal.
2) Present proceeding is filed to challenge the
order made by the learned Tahsildar, Nagar on 1-1-2009
during the execution proceeding referred by the Civil
Court under section 54 of the Civil Procedure Code to the
revenue authorities. By this order, the learned Tahsildar
directed his subordinates to re-measure the land in
respect of which decree is given by the Civil Court and
make fresh proposal as there was objection to the
previous division made for execution of the decree in the
year 1993.
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3) To ascertain the real nature of dispute, the
facts, in brief, need to be stated.
4) Regular Civil Suit No.70/1967 was filed by
present petitioner for relief of partition and possession of
agricultural lands. One land was Gat No.159 situated at
village Pimpalgaon Kaunda, Tahsil Nagar. The petitioner
got the decree of partition on 30-7-1968 and the Court
gave 1/6th share to him in land Gat No.159. Admittedly
that decision has become final. Regular Darkhast
No.69/1968 was filed for execution of this partition
decree. The matter was referred by the Civil Court under
section 54 of the Civil Procedure Code to the revenue
authorities for partitioning Gat No.159. The revenue
authority prepared map and gave proposal. Gat No.159
was divided into two sub divisions like Gat No.159/1 and
Gat No.159/2. Gat No.159/1 admeasrues 2 hectares 70 R
and Gat No.159/2 admeasuring 8 hectares 38 R. Proposal
was given to give portion which was given Gat No.159/1 to
the plaintiff, decree holder and the remaining portion was
to be given to the defendants. Thus, revenue division
under section 85 of the Maharashtra Land Revenue Code
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was made in the year 1993 itself. The possession was
actually not handed over for one or the other reasons to
the decree holder. In the year 2008 when the revenue
authority went to the spot or handing over the possession
of Gat No.159/1 to the decree holder, respondent No.6,
M/s Surgeon Realities Pvt. Limited took objection to the
handing over the possession and written objections was
made to the Tahsildar on 15-12-2008. It was contended
that first the suit property was sold to M/s Niskalp
Investments & Trading Company Limited on 18-12-2000
by the owners and this company had installed windmills
by spending huge amount on this land and then by sale
deed dated 13-12-2001 the Tata Power Company Limited
had purchased this land and so the land and the windmills
standing on it were belonging to Tata Power Company
Limited. Then, another application was given by Tata
Power Company Limited to the Tahsildar and prayer was
made to re divide the land and make new proposal of
division under section 85 of the Maharashtra Land
Revenue Code in view of the sale deeds executed in favour
of the aforesaid two companies. After getting these
objections and applications learned Tahsildar made the
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order dated 1-1-2009 and directed his subordinates to
take steps of making the divisions again to save the
possession of Tata Power Company Limited. First, the
learned Tahsildar gave direction to his subordinates and
then he made correspondence with the Collector, who is
the main authority in revenue district, to advise him in
respect of the objections taken by Tata Power Company
Limited.
5) To challenge the order, present petition came to
be filed on 11-1-2010. It is unfortunate that the matter
remained pending till today in this Court and the decree
holder could not get fruits of the decree when decree was
given in his favour in the year 1968.
6) The submissions made show that there were
attempts made to settle the dispute. Learned counsel for
the decree holder, petitioner, submitted that the petitioner
was made to run pillar to post by the company and he was
not allowed even to enter the office of the company when
he went there to negotiate. In view of possibility of
settlement this Court had also adjourned the matter at
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least on two occasions. Yesterday, submission was made
that officer of the company was on his way and so Court
waited upto second session. Learned counsel for the
respondent No.6 today submitted that the officer is
present but there is no concrete proposal from respondent
No.6.
7)
Decree of partition is in favour of the present
petitioner. It can be said that respondent No.6, a big
company, is acting highhandedly and with presumption
that nothing will happen to it. Even when decree had
become final in respect of the suit property, courage was
shown to purchase the property. When there is decree of
partition, plaintiff is entitled to equitable partition.
Division was accordingly made in the year 1993 and that
can be seen from the map prepared by the T.I.L.R. which
is on the record showing the date as 25-1-1993. Before
making investment it was necessary for respondent No.6
company to go through the relevant record and make
necessary inquiry. It can be said that knowing fully well
that there was a decree of partition, the property is
purchased by respondent No.6. Though there is no sale
10 WP 1839 of 2010
deed on the record, contentions made in the aforesaid two
applications given to the Tahsildar show that Tata Power
Company Limited is shown as owner of the property. It
can be said that present petitioner being a poor person,
the big company has taken everything for granted and has
successfully avoided to give possession to the decree
holder for all these years. It is unfortunate that revenue
authority, which is expected to act impartially, succumbed
to the pressure and even when no right or title or any
interest had passed as against the decree holder and in
favour of Tata Power Company Limited the learned
Tahsildar took the aforesaid steps. If that Tahsildar is still
there, the Collector is expected to take appropriate action
against the said Tahsildar. In view of the aforesaid
circumstances, this Court holds that the things cannot be
delayed any more as proposal was made in the year 1993.
Sufficient time was given to the purchaser, Tata Power
Company Limited to take steps for negotiations with the
decree holder but no interest was shown with some
presumptions already mentioned.
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8) In the result, the petition is allowed. The order
made by the learned Tahsildar to his subordinate to make
division again is hereby set aside. Possession is to be
given to the decree holder as per the proposal made on
25-1-1993 by which Gat No.159/1 was created for giving
to the decree holder, present petitioner. Rule is made
absolute in the aforesaid terms.
ig Sd/-
(T.V. NALAWADE, J. )
rsl
