Kalawatibai Manikar Patil vs Fakruddin Kajuddin & Another
2017 Latest Caselaw 3214 Bom

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          IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                      BENCH AT AURANGABAD

                         WRIT PETITION NO.2382 OF 1994

1.      Kalawatibai w/o Manikrao Patil,
        Age-50 years, Occu-Household,
        R/o Harangul (Bk),
        Tq. And Dist.Latur

2.    Rajkumar Manikrao Patil (died),
     Through LR's,
2A-  Savita w/o Rajkumar Patil,
     Age-45 years, Occu-Household,

2B-     Risha d/o Rajkumar Patil,
        Age-19 years, Occu-Education,

2C-     Nikita Rajkumar Patil,
        Age-12 years, Occu-Education,

2D-     Vikrant Rajkumar Patil,
        Age-8 years, Occu-Education,

        Applicant Nos. 2C and 2D are under
        the guardianship of their mother
        i.e. applicant No.2A,

        All are r/o Harangul,
        Tal. And Dist.Latur. 

3.      Vijaykumar Manikrao Patil,
        Age-28 years, Occu-Agriculturist,
        R/o as above,

4.      Vilas Manikrao Patil,
        Age-24 years, Occu-Agriculturist,
        R/o as above,

5.      Lilabai d/o Manikrao Patil,
        Age-20 years, Occu-Household,
        R/o as above,


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6.     Shilabai Rajendra Mahajan,
       Age-26 years, Occu-Household,
       (Daughter) R/oAusa, Tq.Ausa,
       Dist.Latur                                        - PETITIONERS 

VERSUS

1.     Fakruddin Kha Juddin (died)
       Through LR's,

1/a    Shaikh Chandsab s/o Fakroddin,
       Age-65 years, Occu-Agriculturist,
       R/o Harangul (B),
       Tq. And Dist.Latur,

1/b    Shaikh Mahenab s/o Fakroddin,
       Age-60 years, Occu-Agriculturist,
       R/o Harangul (B),
       Tq. And Dist.Latur,

1/c    Nawade Najmunbi d/o Fakroddin,
       Age-50 years, Occu-Agriculturist,
       R/o Harangul (B),
       Tq. And Dist.Latur,

1/d    Shaikh Yasuf s/o Fakroddin,
       Age-40 years, Occu-Agriculturist,
       R/o Harangul (B),
       Tq. And Dist.Latur,

2.     Shaikh Lal Mahatabkhan, (Abated)
       Age-Major, Occu-Agriculturist,
       R/o as above.

3.     Divisional Commissioner (Revenue),
       Division Aurangabad                               - RESPONDENTS 

Mr.S.S.Halkude, Advocate for the petitioners. Mr.N.T.Bhagat, Advocate for respondent No.3

( CORAM : Ravindra V.Ghuge, J.)

DATE : 15/06/2017

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ORAL JUDGMENT :

1. Leave to add Divisional Commissioner as respondent No.3.

Addition be carried out forthwith. Notice to respondent No.3 is

waived by the learned AGP.

2. None appears for respondent Nos. 1(1 to 4) and respondent

Nos. 1(a) and 1(b). The petition is abated as against respondent No.2

vide order dated 24/11/2003.

3. The petitioner has put forth prayer clause 'B', 'C' and 'D' as

under :-

"[b] By issuing appropriate writ or order the judgment and order dated 26/12/1978, 11/07/1991 passed by Assistant Collector, Latur and Collector, Latur in case No.1977/ROR/A/57 and 1988GBA/8 respectively and order dated 24/11/1992 and 06/01/1994 passed by the learned Additional Commissioner in case 1991/Rev./R-71 and review petition respectively may quashed and set aside.

[c] The judgment and order dated 09/06/1973 passed by the Tahsildar Kandhar sanctioning mutation entry no.319 may be confirmed.

[d] Pending hearing and final disposal this writ petition the judgments dated 26/12/1978, 11/07/1991 passed by Assistant Collector, Latur and Collector, Latur in case No.1977/ROR/A/57

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and 1988 GBA/8 respectively and orders dated 24/11/1992 and 06/01/1994 passed by the learned Additional Commissioner in 1991/Rev/R-71 and in Review Petition respectively may be stayed."

4. While admitting this petition on 17/08/1994, this Court had

granted prayer clause 'D' as an interim relief. Consequentially, the

petitioners are in possession of the land at issue.

5. I have considered the strenuous submissions of Mr.Halkude

and have gone through the record available with his assistance.

6. Issue is as regards the validity of the mutation entry No.319

that was carried out on 09/06/1970 in favour of the husband of

petitioner No.1 and father of petitioner Nos.2 to 6.

7. The disputed portion of the land admeasures 5 acres 35

guntha in Survey No.3.

8. The deceased Manikrao claims to have purchased the land in

Survey No.3 by sale deed dated 22/02/1968 from respondent No.2

Shaikh Lal Mahtab Khan, now deceased. Based on the said sale

deed, the mutation entry was carried out on 09/06/1970 by the

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Tahsildar. Respondent No.1 Fakruddin Khajuddin, now deceased and

represented by LR's 1/a to 1/d, objected to the mutation entry on the

ground that the said land is a service inam land and he is one of the

shareholders in the same. The Assistant Collector, Latur by

judgment dated 26/12/1978, allowed the appeal of deceased

Fakruddin and set aside the mutation entry No.319 and concluded

that the land was clearly an inam land and set aside the order of the

Circle Inspector and cancelled the mutation entry.

9. Thereafter, respondent No.1 filed RCS No.381/1975 for seeking

recovery of the possession of the suit land from Manikrao alleging

that the suit land is inam land.

10. RCS No.381/1975 was dismissed by the learned Trial Court on

12/03/1981. A specific issue No.4 was framed as to whether

Fakruddin proves that Survey No.3 admeasuring 5 acres and 35

gunthas claimed by Manikrao is a service inam land of the dargah.

The conclusion was that it was a khalsa land and not a service inam

land. This judgment of dismissing the suit and concluding as above,

has not been challenged by Fakruddin or any of his legal heirs till

today, as per the submission of Mr.Halkude. He states that the said

conclusion about his land being khalsa land has attained finality.

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11. Manikrao therefore approached the Deputy Collector, Land

Reforms by instituting his case on 30/06/1984 and praying for an

inquiry. The said authority also concluded by judgment dated

21/01/1987 that the said land is a khalsa land and could not have

been attached due to default in rendering service to any dargah. The

decision of the Additional Collector dated 28/08/1984 on the

application of Manikrao seeking an enquiry u/s 2-A of the Hyderabad

Abolition of Inams and Cash Grants Act, 1954 was set aside.

12. In the meanwhile, Manikrao had preferred an appeal against

the judgment of the Assistant Collector, Latur dated 26/12/1978.

Manikrao did not place on record before the Collector the judgment of

the Trial Court dated 12/03/1981 by which the land at issue was

already held by the Civil Court to be khalsa land and not a service

inam land. The Collector, Latur, by order dated 11/07/1991,

concluded that the said land is service inam land and hence Shaikh

Lal Mahtab Khan could not have sold the land to Manikrao in 1968

on the basis of the sale deed dated 22/02/1968. In my view, had

the judgment of the Civil Court being shown to the Collector, Latur,

his order dated 11/07/1991 would have been different based on the

conclusions of the Civil Court.

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13. The petitioners, after passing away of Manikrao, approached

the Divisional Commissioner, Aurangabad, who has been added as

respondent No.3 under the orders of this Court passed today, by

filing Revision Appeal No.1991/REV/R-71 for challenging the order of

the Collector dated 11/07/1991. By order dated 24/11/1992,

respondent No.3 dismissed the revision of the petitioners u/s 251 of

the Maharashtra Land Revenue Code, 1966 on the ground that the

Advocate for the petitioners was absent and concurrent findings are

challenged. The restoration application field by the petitioners was

rejected by him on 06/01/1994 on the ground that the revision was

not dismissed in default, but in the light of the concurrent decision of

the Collector and the S.D.O.

14. The learned AGP has strenuously supported the impugned

orders and has contended that this Court cannot exercise its limited

jurisdiction when concurrent findings are on record.

15. Considering the above, I find that Revision Appeal No.

1991/REV/R-71 deserves to be remitted to respondent No.3 since the

judgment of the Trial Court dated 12/03/1981 concluding that the

land at issue is a khalsa land, was neither brought to the notice of

the Collector, Latur, nor respondent No.3. This aspect needs to be

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brought to the notice of respondent No.3 since it has confirmed the

order of the Additional Collector dated 26/12/1978 and the order of

the Collector dated 11/07/1991 wherein the land is held to be a

service inam land. These conclusions by the Revenue Authorities

cannot be sustained, prima facie, in the face of a judgment of the

Civil Court, which has attained finality.

16. This petition is, therefore, partly allowed. The impugned orders

dated 06/01/1994 and 24/12/1992 passed by respondent No.3 are

quashed and set aside. Revision No.1991/REV/R-71 is restored to

the file of respondent No.3. Learned AGP submits that the revision

would be considered either by the Divisional Commissioner or

Additional Commissioner as per the jurisdiction as on date.

17. The petitioners shall appear before the concerned authority on

07/07/2017 at 3.00 p.m. The said authority shall then issue notices

to the remaining litigating sides. After recording the appearance of

the parties, the petitioners shall submit an application for

amendment to the revision and will add the legal heirs of deceased

Fakruddin Khajuddin and Shaikh Lal Mahtab Khan. Respondent

No.3 would then consider the said application and after addition of

the parties, would issue notices to the said respondents. Needless to

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state, the said proceedings shall be considered by the said Authority

afresh in the light of the contentions of the litigating sides and

keeping in view the judgment of the Civil Court dated 12/03/1981 in

RCS No.381/1975.

18. Rule is made partly absolute in the above terms.

19. Since the petitioners' possession of the property at issue has

been protected during the litigation, the same protection shall

continue during the pendency of the proceedings before respondent

No.3 Authority and further for 6 weeks thereafter, if any adverse

order is passed against the petitioners.

( Ravindra V.Ghuge, J.)

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