Bombay High Court
Varghese Idiculla vs State Of Maharashtra Through Its ... on 10 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 3674/2015
1] Varghese Indiculla (Dead) through LR's
a) Smt. Jolly Varghese Padipurakkal,
Aged about 53 years, Occ. Household
b) Joji Varghese Padipurakkal,
Aged about 34 years, Occ. Private Service
c) Jijo Varghese Padipurakkal,
Aged about 27 years, Occ. Private Service
d) Ku. Vidya Varghese Padipurakkal,
Aged about 13 years, Occ. Student,
Being minor through her guardian mother
applicant no. 1
Applicant no. 1 to 4 residents of Plot No. 4,
Nava Pragati Housing Society, Near Shinde
Mangal Karyalaya, Sarkar Nagar, Chandrapur,
Tah. and District-Chandrapur
e) Joby Varghese Padipurakkal,
Aged about 31 years, Occ. Private Service,
R/o. C/o. Nagesh H. Sonikoli, Matunga
Labour Camp, Matunga 19, Mumbai.
f) Sau. Reji Thambi Vellaringal,
Aged about 38 years, Occ. Private Service,
R/o 35, Deendayal Nagar, Near Sarkar Nagar,
Chandrapur, Tah. and District- Chandrapur
..... PETITIONERS
...V E R S U S...
1] State of Maharashtra through
Divisional Commissioner, Nagpur
2] State of Maharashtra through
Collector, Chandrapur
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3] Duhant Narayan Deshpande,
Aged about 42 years,
Occupation Cultivation and business,
R/o Vidya Nagari, Sardar Patel Ward,
Warrora, Tah Warrora,
Dist. Chandrapur
4] Vishnu Vasantrao Pimpalapure,
Aged about 43 years,
Occupation labourer,
R/o Shivaji Ward, Warrora,
Tah Warrora, Dist. Chandrapur
... RESPONDENT
S
=====================================
Shri L. James, Advocate for the petitioners
Miss T.H. Khan, AGP for the respondent nos. 1 and 2
Shri S.V. Purohit, Advocate for the respondent no. 3
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 10 November
th
,
201
7
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] This petition arises out of orders passed in mutation
proceedings.
The petitioners had filed Special Civil Suit No. 207/08
against Vinod Keshao Harnare and Santosh Keshav Harnare praying for
decree for declaration that he is the owner of Survey No. 38,
admeasuring 2.64 hectare, situated at Village Chinora. The petitioners
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had further prayed that the sale-deed executed in favour of Prabhakar
Sadashiv Dhavas (Defendant No. 3 in that civil suit) on 22/02/2008 be
declared as null and void. This civil suit is decreed in favour of the
plaintiff by the judgment dated 03/01/2012. During the pendency of
this civil suit, the present respondent nos. 3 and 4 purchased the
agricultural land in question from Prabhakar Sadashiv Dhavas by the
sale-deed executed on 14/09/2010.
3] The learned advocate for the respondent nos. 3 and 4 has
submitted that the judgment and decree passed in Special Civil Suit
No. 207/08 is challenged by them before the District Court and as they
were not party to the special civil suit, an application seeking
permission/leave to file appeal is also filed. It is submitted that the
application seeking leave to file appeal is pending since 2012.
4] The learned advocate for the respondent nos. 3 and 4 has
submitted that Regular Civil Suit No. 79/13 is filed by these
respondents praying for decree for permanent injunction restraining
Varghese Indicula, predecessor of the present petitioners (decree holder
in Special Civil Suit No. 207/08) from interfering with the possession of
the plaintiff in that civil suit. On query, it is submitted that though an
application praying for temporary injunction is filed in the civil suit, it is
not pressed as the plaintiff is in possession of the agricultural land. The
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fact remains that the civil suit is pending since 2013 and interim
order/injunction is not operating in the civil suit.
5] Considering the facts of the case, prima facie, I find that the
order passed by the Sub-Divisional Officer on 27/09/2013 was based on
proper appreciation of facts. The petitioners are having a decree passed
by the Competent Court in their favour. The decree is passed against
Prabhakar Sadashiv Dhavas (predecessor in title of the present
respondent nos. 3 and 4). The sale deed executed in favour of
Prabhakar Sadashiv Dhavas on 22/02/2008 is declared null and void by
the Competent Court. The counter claim made by Shri Prabhakar
Sadashiv Dhavas is dismissed by the Court. Though the present
respondent nos. 3 and 4 claim that the judgment and decree passed in
Special Civil Suit No. 207/08 is challenged by them, there is no
explanation why the application seeking leave to file appeal is not
pressed for last more than four years.
6] Considering the facts of the case, I find that the order
passed by the Additional Commissioner on 27/02/2015 upholding the
order passed by the Additional Collector on 25/07/2014 are
unsustainable. Hence, the following order is passed:-
O R D E R
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1] The orders passed by the Additional
Commissioner on 27/02/2015 and the Additional
Collector on 25/07/2014 are set aside.
2] The order passed by the Sub-Divisional Officer
on 27/09/2013 is restored.
3] This arrangement shall be subject to decision
by the Competent Civil Court/District Court in the
proceedings pending between the parties.
Rule made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
