Bombay High Court
Abasaheb Kashinath Jadhav And Anr vs Smt Meerbai Bappasaheb Jadhav And ... on 21 March, 2017
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2787 OF 2002
1. Abasaheb s/o. Kashinath Jadhav .. Petitioners
died - through LRs.
1A. Kalyan s/o. Abasaheb Jadhav,
Age. 48 years, Occ. Agri.,
R/o Kachner, Tq. & Dist. Aurangabad.
1B. Suresh s/o. Abasaheb Jadhav
Age. 42 years, Occ. Service,
R/o. Madha Colony, Opp. Dhoot Hospital,
House No.364, Mukumdwadi, Aurangabad.
1C. Bharti w/o. Dattatraya Pawar,
Age. 35 years, Occ. Household,
R/o.Nevargaon, Tq. Gangapur,
Dist. Aurangabad.
1D. Vinod s/o. Abasaheb Jadhav
Age. 32 years, Occ. Agri.,
R/o. Kachner, Tq. & Dist. Aurangabad.
2. Bhagwan Roopchand Jadhav
Age. 70 years, Occ. Agri.,
Resident of Kachner,
Tq. & Dist. Aurangabad.
Versus
1. Smt. Meerabai w/o. Bappasaheb Jadhav.. Respondents
Age. 47 years, Occ. Agri. & Household,
Resident of Kachner,
Tq. & Dist. Aurangabad.
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2. The Additional Commissioner, Aurangabad,
(Revenue) Commissioner's Officer,
Aurangabad.
3. The Assistant Collector,
Collectorate Office, Aurangabad,
Tq. & Dist. Aurangabad.
4. The Additional Collector,
Collectorate Office, Aurangabad,
Tq. & Dist. Aurangabad.
5. The State of Maharashtra
Mr.N.K. Kakade, Advocate for the petitioners.
Mr.S.R. Yadav (Lonikar), A.G.P. for respondent/State.
CORAM : S.B. SHUKRE,J.
DATED : 21.03.2017
ORAL JUDGMENT :-
1. Heard Mr.Kakade, learned Counsel for the
petitioners and Mr. S.R. Yadav (Lonikar), AGP for
respondent Nos.2 to 5. None appears for respondent No.1
though duly served for final hearing.
2. The question involved in this petition is as to
whether inspite of findings recorded by the Civil Court
that the portion of land Gat No.498 admeasuring 4 acres
has been validly purchased by petitioner No.2 from the
husband of respondent No.1 and thereafter on account of
valid transfer made to the petitioner No.1 by petitioner
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No.2, the petitioner No.1 is in possession of the said
portion of land Gat No.498, which has attained finality,
could Revenue authority upset this finding by setting
aside the second Mutation Entry No.538 recorded on
24.04.1981, in the name of petitioner No.1 or not.
3. According to the learned Counsel for the
petitioners, in the face of finding recorded by the Civil
Court, which has attained finality, this could not have
been done by the Revenue Authorities. Learned AGP submits
that appropriate orders be passed in this case in the
light of the applicable law.
4. It is contention of petitioner No.1 that he had
purchased the subject land from petitioner No.2, in the
year 1981 and thereafter the subject land was mutated in
his name in the revenue record vide mutation entry
No.538. Petitioner No.2 had purchased this land from the
husband of respondent No.1 by registered sale-deed
executed on 14.04.1980, on the basis of which, the
subject land was mutated in his name vide Mutation Entry
No.498 dated 20.05.1980.
5. In the year 1985, respondent No.1 had filed a
Civil Suit being R.C.S. No.818 of 1985 for seeking
declaration that sale-deed dated 14.04.1980 executed by
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the husband of respondent No.1 in favour of petitioner
No.2 was null and void as at the time of execution of
sale-deed, her husband was lunatic. In this suit,
respondent No.1 had also sought possession of the subject
land from the petitioners. This suit was dismissed by
the Civil Court on 30.09.1987. One of the issues framed
in this suit was whether or not the husband of respondent
No.1 was lunatic at the time of execution of sale deed
dated 14.04.1980 and this issue was answered in the
negative. In other words, the suit was dismissed by the
Civil Court holding that respondent No.1 could not prove
that her husband was lunatic at the time of execution of
sale-deed dated 14.04.1980 in favour of petitioner No.2.
The judgment and decree were carried in appeal by
respondent No.1 before the Court of District Judge by
filing R.C.A. No.40 of 1988. This appeal was dismissed
on 25.01.1990. The order of the learned District Judge
was carried further in the Second Appeal being Second
Appeal No.149 of 1991 and this Court also dismissed the
Second appeal on 24.07.2014. Thus, the decree of the
Civil Court passed in R.C.S. No. 818 of 1995 became final
which had effect of upholding validity of sale-deed dated
14.04.1980 as well as legality of possession of the
petitioners in respect of the subject land.
6. I must say that the facts so narrated above are
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admitted ones. Learned AGP has also nothing to say about
these admitted facts. So, the position now is that the
admitted facts empathetically indicate that firstly
petitioner No.2 and subsequently petitioner No.1 validly
acquired the title to the subject land being the portion
of Gat No.498 admeasuring 4 acres, from husband of
respondent No.1 and accordingly were also validly put
into possession of the same. If this is so, there was no
reason for the Revenue Authority to upset the second
Mutation Entry No.538 only on some technical ground that
while recording this entry, respondent No.1 was not
noticed. In-fact, respondent No.1 can be presumed to
have had notice of these proceedings as she had
subsequently filed a Civil Suit being R.C.S. No.818 of
1985 seeking declaration that sale-deed dated 14.04.1980
was null and void. Even otherwise, after having lost all
claims regarding ownership and possession in respect of
the subject land, there was no reason for the Revenue
Authorities to have re-opened the case and upset Mutation
Entry No.538. Such action on the part of the Revenue
Authority amounts to interference with the findings
recorded by the Civil Court, which have attained
finality. Therefore, the impugned orders which are order
dated 11.11.1998 passed by the S.D.O. in Appeal No. 15 of
1998, order dated 04.03.1999 passed by the Additional
Collector in S.A. No.68 of 1998 and order dated
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28.02.2002 passed in Revision Application by the
Divisional Commissioner, are against well settled
principles of law and these cannot be upheld. In the
result, I am of the view that the writ petition deserves
to be allowed.
7. The writ petition is allowed with costs. The
impugned orders are quashed and set aside. Mutation
Entry No.538 is confirmed and restored accordingly. Rule
is made absolute in above terms.
[S.B. SHUKRE,J.]
snk/2017/MAR17/wp2787.02
