Jaker Chaus Mohammad Chaus And ... vs The Panchayuat Hadgaon And ...
2018 Latest Caselaw 27 Bom

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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                       BENCH AT AURANGABAD

                           WRIT PETITION NO.15 OF 2014

1. Jaker Chaus s/o Mohammad Chaus,
    Age-48 years, Occu-Agriculture,
    R/o. Hadgaon Tq. Hadgaon,
    Dist.Nanded

2. Babu s/o Dhannu Chavhan,
    Age-48 years, Occu-Doctor,
    R/o Hingoli gate Bridge Nanded,
    Tq. And Dist. Nanded                                 - PETITIONERS 

VERSUS

 1. The Panchayat, Hadgaon,
     Through its Block Development Officer,
     Tq. Hadgaon, Dist. Nanded,

2. Tahsildar, Hadgaon,
    Tq.Hadgaon, Dist.Nanded.                             - RESPONDENTS 

Mr.G.N.Chincholkar, Advocate for the petitioners. Smt.Y.M.Kshirsagar, Advocate for respondent No.1. Mr.S.K.Tambe, AGP for respondent No.2.

(CORAM : RAVINDRA V. GHUGE, J.)

DATE : 04/01/2018

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 09/05/2011

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passed by the Additional Collector, by which the appeal of the

petitioners in relation to the judgment of the Tahsildar dated

30/04/2010 concerning mutation entry No.3395 dated 25/01/2010

in favour of respondent No.1, has been dismissed in default. The

petitioners are also aggrieved by the order of the Deputy

Commissioner dated 04/04/2013 by which the revision filed by the

petitioners u/s 257 of the M.L.R. Code has been rejected.

3. The petitioners are aggrieved by the mutation entry No.3395

which was taken in favour of respondent No.1 / Panchayat Samiti.

The appeal u/s 247 before the S.D.O. was instituted on 03/07/2010.

Till 09/05/2011, which is a period of about 10 months, the

petitioners did not appear before the Additional Collector and

continued to remain absent. Consequentially, the said appeal was

dismissed for non prosecution. The petitioners preferred a revision

before the Deputy Commissioner. By the impugned order dated

04/04/2013, the said revision was dismissed.

4. Grievance of the petitioners is that the manner of recording the

mutation entries is defective and the Tahsildar could not have made

the entries in opposition to Section 149 of The M.L.R.Code, which

prescribes a particular procedure to be followed. The dismissal of

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the appeal by the Additional Collector for non prosecution, has led to

an order being passed without hearing the petitioners. For the said

reason, it is contended that the order of the Divisional Commissioner

dated 04/04/2013 is defective and the same deserves to be quashed

and set aside.

5. Learned Advocate for respondent No.1 / Panchayat Samiti, in

whose favour the mutation entry has been taken on 25/01/2010, has

strenuously supported the impugned orders.

6. With the assistance of the learned Advocates and the learned

AGP, I have gone through the petition paper book and the additional

documents which have been tendered by the petitioners across the

bar.

7. It needs to be noted that these petitioners have filed a

Spl.C.S.No.12/2010 seeking declaration of ownership and recovery of

possession over the property which is subject matter of the mutation

entry. The said suit is still pending before the concerned Civil Court.

8. This Court, in Shrikant R.Sankanwar and others Vs. Krishna

Balu Naukudkar [2003(3) Bom.C.R.45] has concluded that mutation

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entries do not decide the right, title or interest of any party over the

property at issue. Mutation entries are only for taxation purposes

and they do not declare the title over the property. It is further

concluded that it is only the Civil Court, which can decide the right,

title and interest of a person over the property and such a verdict of

the Civil Court will have an overriding effect on the mutation entries

and will bind the revenue authorities.

9. Learned Advocate for the petitioners prays that the matter be

remitted to the Additional Collector who has dismissed the appeal for

want of prosecution. I do not find that the said request needs to be

entertained in the light of the order passed by the Deputy

Commissioner in which it is noted that these petitioners had

preferred RCA No.35/2007 after the Trial Court had dismissed their

RCS No.570/2005 by judgment dated 09/03/2007. In the said suit

No.570/2005, the plaintiffs had conceded that respondent No.1 /

Panchayat Samiti was having its Office over 5 acres and 2 gunthas

since 1960. It was further admitted that in the 7/12 extract, the

name of the Panchayat Samiti was recorded in the "Other Rights"

coloumn.

10. The claim of the petitioners with regard to the property which

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is subject matter of the mutation entry is based on the sale deed

executed by Galib Bin Islam who sold 3 hectre and 20R in favour of

the petitioners and Balaji Shinde. Subsequently, Balaji has executed

a registered sale deed on 08/05/2004 by which he has sold his

portion of the land to these petitioners. It cannot be ignored that

these petitioners had preferred the civil suit for seeking injunction on

the basis of their possession. However, considering the pleadings of

the parties in the plaint and the written statement, the Trial Court

framed an issue with regard to the title of these petitioners over the

suit property. It was concluded that these petitioners cannot

establish their title over the suit property and the suit was dismissed

as the petitioners were not found to be in possession of the said

property. RCA No.35/2007 has been dismissed by the First Appellate

Court. Second appeal preferred by these petitioners has also been

dismissed.

11. This petition, therefore, does not deserve to be considered on

account of 2 factors. Firstly, that the injunction sought on the basis

of the possession has been rejected right upto this Court. Secondly,

considering the law laid down in Shrikant Sankanwar (supra), the

claim over the property by these petitioners is subject matter of

Spl.C.S.No.12/2010 wherein they have sought a declaration of

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ownership and also recovery of possession.

12. Considering the above, this petition is dismissed. Rule is

discharged.

13. At this juncture, learned Advocate for the petitioners prays that

Spl.C.S.No.12/2010 be expedited as it is pending before the

concerned Court at Nanded. The said request is accepted and the

learned Trial Court is directed to decide Spl.C.S.No.12/2010 as

expeditiously as possible and in any case on or before 31/12/2018. It

is made clear that this Court has not expressed any opinion about

the effect of the decision in the proceedings concerning RCS

No.570/2005 and the subsequent first and second appeals which

have been dismissed, on S.C.S.No.12/2010.

( RAVINDRA V. GHUGE, J.)

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