Bombay High Court
Suresh Babu Patil And Ors vs The State Of Maharashtra Through ... on 24 October, 2016
Bench: Mridula Bhatkar
Sherla V.
wp.4232.2015_87.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4232 OF 2015
Suresh Babu Patil ... Petitioner
Vs.
State of Maharashtra & Ors. ... Respondents
Mr.S.S. Kanetkar for the Petitioner
Mr.S.H. Kankal, AGP, for Resp. Nos.1 to 5
Mr.A.G. Kundekar for for Respondent No.6
ig CORAM: Mrs.MRIDULA BHATKAR, J.
OCTOBER 24, 2016
ORAL JUDGMENT:
1. Rule. By consent of the parties, Rule made returnable forthwith and
heard at the admission stage itself.
2. By this writ petition, the petitioner, who is a purchaser of 2/3 rd share
in the land in survey no.13/1, Mauje Fene, Taluka Bhiwandi, District Thane
of which the respondents are the join owners. Respondent No.6 has 1/3 rd
share in the said survey No.13/1, Mauje Fene, Taluka Bhiwandi, District
Thane and 2/3rd share in the said land is owned by his co-sharers i.e.,
Petitioner Nos.2 to 6 from whom the petitioner has purchased the said
land by a registered sale deed dated 20.11.2009. Pursuant to the said
registered sale deed, the property record was mutated by mutation entry
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No.388 of Mauje Fene, Thane. Respondent No.6 who was a co-sharer
and having undivided share in the said land was not aware of the said
transaction. Hence, challenged the said mutation before the Tehsildar,
Bhiwandi by filing dispute No.SR29 of 2010. The said dispute was
decided against the petitioner i.e., respondent No.6 and mutation entry at
No.388 was allowed by the Tehsildar by his order dated 10.1.2010. The
said order was challenged by RTS Appeal N.197 of 2010 and SDO,
Bhiwandi by her order dated 14.3.2011 upheld the order passed by the
Tehsildar against which RTS Appeal No.136 of 2011 was preferred before
the Deputy Collector, who partly allowed the appeal of Respondent NO.6
and orders of the SDO and the Tehsildar were set aside and mutation
entry No.388 was cancelled. However, he ordered that pursuant to the
sale deed dated 20.11.2009 the entry of the petitioner was taken in 7/12
extract under the head "other rights". Thereafter, the said order was
challenged by the present petitioner by RTS Revision No.427 of 2012
before the Additional Commissioner, Konkan division who by his order
dated 7.2.2013 allowed the appeal and set aside the order dated
13.6.2012 and restored the order passed by the SDO and Tehsildar. The
said order was taken up in revision before the Government in RTS
proceedings and concerned Secretary for the Government by his order
dated 17.3.2015 allowed the said revision of Respondent No.6 and set
aside the order passed by the Additional Commissioner, Konkan Division
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dated 7.2.2013 and upheld the decision of the Deputy Collector dated
13.6.2012 and hence, this writ petition.
3. The learned Counsel for the petitioner has submitted that the order
passed by the Tehsildar and the SDO is correct. It is a registered sale
deed and the petitioner does not claim more than 2/3 rd of the entire land,
which is the share of petitioner Nos.2 to 6, who are the co-sharers of
respondent No.6 in the said land. He further submitted that the revenue
authority i.e., the State has gone beyond its scope as it has decided the
issue of possession while deciding the legality of the mutation pursuant to
the registered sale deed. Both the learned Counsel for Respondent No.6
i.e., the contesting party and the learned Government Pleader supported
the order passed by the State cancelling the mutation entry No.388. The
learned Counsel for Respondent No.6 has submitted that he relied on the
judgment of the Supreme court in the case of Ramdas vs. Sitabai1 in
respect of section 44 of the Transfer of Property Act.
4. Perused the orders passed by the Secretary for State and the other
authorities. It is an admitted position that respondent No.6 is having 1/3 rd
share and petitioner Nos.2 to 6 are having 2/3rd undivided share in the said
land. Petitioner Nos.2 to 6 have sold their undivided right by registered
sale deed. As the property is sold by registered sale deed, right of the
1 2009 (6) Mh.L.J. 886
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petitioner being the purchaser of the said land is created and therefore, his
name is entered in the record of rights. I do not find any illegality in
entering the name in the record of rights pursuant to the registered sale
deed. However, the petitioner cannot be put in possession on the basis of
that registered sale deed or the mutation i.e., No.388 as the interest and
the ownership is undivided for want of partition. On the basis of one map
prepared by the private parties no division by metes and bounds of the
plot is possible. Respondent No.6 has filed suit i.e., RCS No.273 of 2011
for partition claiming 1/3rd share in the suit property i.e., the said land. He
has prayed that the partition is to be made by metes and bounds. The
said suit is pending against all the petitioners and petitioner No.1 is a
purchaser who is defendant No.6 in the said suit. Sub-division in 1/3 rd and
2/3rd shares by metes and bounds is a matter of evidence and is to be
decided by the civil Court and it cannot be decided by the revenue
authority. It is also a settled position of law, as laid down in Ramdas vs.
Sitabai (supra), that without there being any physical formal partition of
an undivided landed property, a co-sharer cannot put a vendee in
possession although such a co-sharer may have right to transfer his
undivided share. Thus, the suit for partition by metes and bounds is still
an issue and pending before the civil Court and that will be decided by the
said Court. However, the order passed by the Secretary canceling the
mutation entry No.388 is not correct as the name of the petitioner No.1
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was entered in the record of rights pursuant to the registered sale deed of
the said land. Hence, the said order dated 17.3.2015 is set aside and the
orders passed by the Collector, Tehsildar and S.D.O. are restored.
5. Rule is accordingly made absolute in terms of prayer clauses (a)
and (b).
(MRIDULA BHATKAR, J.)
