Smt Sharda Sheshrao Badhe & 6 ... vs The State Of Mah
2017 Latest Caselaw 5723 Bom

Judgment                                                                      lpa145.04

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR.




                  LETTERS PATENT APPEAL NO. 145 OF 2004
                                    IN
                     WRIT PETITION  No.  2339  OF 1991.



      Shri Sheshrao Badhe
      (since deceased through his Legal heirs)

      (a) Smt. Sharda wd/o Sheshrao Badhe,
      Age adult, Household;

      (b) Shri Ram s/o Sheshrao Badhe,
      Age adult, Occupation - Agriculturist;

      (c) Shri Shyam s/o Sheshrao Badhe,
      Age adult, Occupation - Service;

      (d) Shri Jitendra s/o Sheshrao Badhe,
      Age adult, Occupation - Agriculturist;

      (e) Shri Rajesh s/o Sheshrao Badhe,
      Age adult, Student;

      (f) Ku. Lata d/o Sheshrao Badhe,
      Age adult, student;

      (g) Ku. Chitra d/o Sheshrao Badhe,
      Age adult, Student;

      Appellants 1 to 7 are the residents of
      Village Ridhora, Taluka Malegaon,
      District Akola.                                         ....APPELLANTS.


                                  VERSUS


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 Judgment                                                                             lpa145.04

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          The State of Maharashtra,
          through the Secretary, 
          Revenue and Forest Department,
          Mantralaya, Mumbai - 400 032.                              ....RESPONDENT
                                                                                    . 



                              ----------------------------------- 
                      Mr. R.D. Bhuibar, Advocate for Appellants.
                 Mr. Balpande, Assistant Govt. Pleader for Respondent.
                              ------------------------------------



                                       CORAM :  B. P.  DHARMADHIKARI
                                                     & ARUN D.UPADHYE, JJ.

DATED : AUGUST 07, 2017.

ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)

Heard Shri Bhuibar, learned counsel for the appellant/petitioner -

landlady and Shri Balpande, learned A.G.P. for respondent - State.

2. Appellants claim exemption for lands mortgaged allegedly by them

in view of the provisions of Section 47[1][e] of the Maharashtra Agricultural

Land (Ceiling on Holding) Act, 1961. Learned counsel for appellants

submits that 02.10.1975 was the commencement date for the purpose of the

Amendment Act. He submits that on that date land was already mortgaged.

Judgment lpa145.04

He is inviting attention to the deposition of the Secretary of the Cooperative

Society, from whom loan was taken and land was mortgaged.

3. On extract of mortgage deed, he submits that a certified copy of

the mortgage executed for the year 1976-77 was also placed on record to

corroborate this version. That registered mortgage mentioned previous

dues.

4. Learned A.G.P. submits that a finding of fact has been reached by

the Authorities concurrently and it is not perverse. Mortgage deed itself

needed to be produced by the appellants.

5. The mortgage deed needs to be a registered document in terms of

provisions contained in Transfer of Property Act. Section 47[1][e], exempts

land from amended Act, if it is held by a Bank or Cooperative Society as the

security for recovery of its dues. Appellants have no where stated that title

deeds were deposited with the Bank. On the contrary, execution of

mortgage deeds, is the plea.

6. If mortgage deeds were being regularly executed, the registered

documents in original would have been available with the Bank. When the

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mortgage amount is repaid, the document is redeemed and release is also

then registered. These factors which could have been proved by producing

record from the office of the Sub-Registrar of Documents are lacking in the

matter.

7. Loan taken is alleged to be from 1970 to 1973. It is therefore,

obvious that for these earlier years and upto to the execution of registered

document in 1977-78, the records of office of Sub Registrar could have been

pressed into service to substantiate contention that original mortgage deed

for agricultural year 1975-76 was missing. A certified copy of the registered

mortgage deed could have been procured or copy of Index-II Register and no

encumbrance in revenue record, could have been proved on record.

8. In absence of this material on record, findings recorded cannot be

labeled as perverse. Letters Patent Appeal is, therefore, dismissed. No costs.

9. Shri Bhuibar, learned counsel for appellants at this stage prays for

continuation of interim orders for a period of 6 weeks more. The said

request is strongly opposed by learned A.G.P.

10. As the status quo is operating since last more than 13 years, we

Judgment lpa145.04

continue the same for a period of 6 weeks more. The same shall cease to

operate automatically thereafter.

                            JUDGE                      JUDGE

Rgd.