Bombay High Court
Gorakshanath Laxman Darandale ... vs Subhash Laxman Darandale And ... on 12 July, 2017
Bench: R.V. Ghuge
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8938 OF 2014
1. Gorakshanath s/o Laxman Darandale,
Age-38 years, Occu-Agriculturist,
2. Vasant s/o Laxman Darandale,
Age-33 years, Occu-Agriculturist,
3. Bhimabai Laxman Darandale,
Age-76 years, Occu-Agriculturist,
Petitioner Nos. 1 to 3 are r/o Old
Wambhori Road, Sonai, Tq.Newasa,
Dist.Ahmednagar
4. Kusumbai Bhausaheb More,
Age-49 years, Occu-Household,
R/o More Chincholi, Tq.Newasa,
Dist.Ahmednagar,
5. Ushabai Pandharinath Dhokne,
Age-47 years, Occu-Household,
R/o Umbre, Tq.Rahuri,
Dist.Ahmednagar,
6. Ashabai Macchindra Kakad,
Age-27 years, Occu-Household,
R/o Jorure, Tq.Sangamner,
Dist.Ahmednagar,
7. Kalpana Babasaheb Rajdeo,
Age-34 years, Occu-Household,
R/o Bramhani, Tq.Rahuri,
Dist.Ahmednagar -- PETITIONERS
VERSUS
1. Subhash s/o Laxman Darandale,
Age-54 years, Occu-Service,
R/o Sonai, Tq.Newasa,
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Dist.Ahmednagar,
2. The Tahsildar, Newasa,
Tq.Newasa, Dist.Ahmednagar,
3. Sub Divisional Officer,
Ahmednagar,
Tal. and Dist. Ahmednagar -- RESPONDENTS
Mr.R.K.Temkar, Advocate for the petitioners.
Mr.A.B.Kale, Advocate for respondent No.1.
Mr.N.T.Bhagat, AGP for respondent Nos. 2 and 3.
( CORAM : Ravindra V.Ghuge, J.)
DATE : 12/07/2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally by the
consent of the parties.
2. The petitioners are aggrieved by the order dated 23/05/2014
delivered by respondent No.3 / Sub-Divisional Officer condoning
purported delay of about 3 years and 3 months.
3. I have considered the extensive submissions of the learned
Advocates for the respective sides and the learned AGP on behalf of
the State Authorities.
4. The order passed in Partition Case No.SR 231/2009 is with
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regard to land Gat No.3376/1 at village Sonai, Tal.Newasa. The said
order has been passed u/s 85 of the Maharashtra Land Revenue
Code (Hereinafter referred to as M.L.R. Code). Revenue entries have
been altered by the said order purportedly on the application filed by
respondent No.1. Respondent No.1 contends that he had never made
such an application and that application which has been dealt with
by respondent No.2 u/s 85, carries false and bogus signatures of
respondent No.1. In short, the factum of filing of the application is
questioned.
5. Respondent No.1, however, preferred RCS No.108/2012 (Old
No.393/2010) on 06/07/2010 before the Civil Court. The suit was for
declaration and partition. However, respondent No.1 specifically
raised an issue of the same Mutation Entry No.26324, which has
been carried out by respondent No.2 u/s 85 of the M.L.R.Code. It
was specifically averred that the partition Case No.231/2009 was a
false case.
6. The Trial Court dealt with the said aspect by specifically
framing issue No.2 and concluded that respondent No.1 has failed in
proving that the said application i.e. Partition Case No.231/2009 was
a false proceeding. Similarly, issue Nos. 3 and 4 were framed to
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consider whether the partition case No.231/2009 would not be
binding on respondent No.1 and the Trial Court concluded that
respondent No.1 has failed in establishing that the result of the said
case would not be binding upon him. It is stated that a Reg.Civil
Appeal No.60/2015 for challenging the judgment of the Trial Court
dismissing the suit of respondent No.1 dated 17/10/2015, is pending
adjudication.
7. It is, therefore, crystal clear that the issue which was dealt with
by the Trial Court by judgment dated 17/10/2015 and which is
subject matter of the pending appeal, is also the issue raised by
respondent No.1 before respondent No.3 in which the delay has been
condoned by the impugned order. There cannot be two adjudicatory
processes for the same cause of action and moreso when the said
issue is subject matter of the civil proceedings. Keeping in view the
law laid down by this Court in the matter of Shrikant R.Sankanwar
and others Vs. Krishna Balu Naukudkar [2003(3) Bom.C.R.45], the
conclusions of the Civil Court as regards the rights and title of the
litigating sides would directly affect the mutation entries and would
be binding upon the revenue authorities.
8. At this juncture, it is informed by Mr.Kale, learned Advocate for
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respondent No.1, on instructions, that RCA No.60/2015 has been
filed.
9. Considering the above, this petition is partly allowed by
keeping the impugned order of condonation of delay dated
23/05/2014 in abeyance till the civil proceedings between the parties
are concluded. Respondent No.3 is, therefore, restrained from
registering the appeal of respondent No.1.
10. Needless to state, the decision of the civil proceedings will be
binding upon all the revenue authorities with regard to the mutation
entries and the revenue case. Until then, the litigating parties shall
not alienate the suit property and will not create third party interests.
11. Rule is made partly absolute in these terms.
( Ravindra V.Ghuge, J.)
khs/JULY 2017/8938-d
