Bombay High Court
Ganesh S/O Devidas Yadav vs State Of Maharashtra, Through Sub ... on 22 December, 2021
Bench: Avinash G. Gharote
24wp 3975.2021..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 3975/2021
Ganesh s/o Devidas Yadav
..VS..
State of Maharashtra and ors.
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order__________________________________________________________
Shri S.R. Tiwari, Advocate for the petitioner
Ms. Nivedita Mehta, AGP for respondent nos. 1 to 2/State
Shri S.C. Joshi, Advocate for respondent nos. 4 to 6
CORAM : AVINASH G. GHAROTE, J.
DATED : 22/12/2021
Heard Shri Tiwari, learned Counsel for the
petitioner, Ms. Mehta, learned AGP for respondent nos. 1
and 2 and Shri Joshi, learned Counsel for respondent nos.
4 to 6.
2. Shri M.G. Sarda, learned Counsel for
respondent nos. 7 to 11, is absent.
3. It is an admitted position on record, that in a
suit for partition and separate possession in which the
father of the petitioner was defendant no. 2 in Special
Civil Suit No. 195/1990, decree for partition came to be
passed on 27.02.1991, in respect of two houses and land
of Survey No. 27, Gat No. 63, admeasuring 5.32 H.R.
Mauza Yavalkhed, Tq. and Dist. Akola. The judgment was
challenged in Regular Civil Appeal No. 23/2012, by the
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father of the petitioner (Shri Devidas and ors.), which was
dismissed on 25.07.2017, Second Appeal No. 749/2017
challenging the same came to be dismissed on
04.05.2018, Special Leave Petition against which also
came to be dismissed on 14.12.2018. Thus, decree for
partition became final and binding upon the parties. In
final decree proceeding which was registered as M.J.C.
No. 20/2017, precept under Section 54 of the Code of
Civil Procedure, 1908 (C.P.C.) was sent to the Revenue
Authority for partition of the agricultural land, in which
the present petitioner claiming to be a grand-son of
Mahadev, the father of Devidas, raised the claim that there
was Gift Deed executed in his favour by one Dujabai
Mahadev Yadav in respect of the said agricultural land
and, therefore, filed an objection before the Revenue
Authority, which according to him, was not considered
and therefore, an Appeal was field before the learned
Sub -Divisional Officer (S.D.O.) under Section 247 of
Maharashtra Land Revenue Code, in which, an application
for stay came to be rejected by the order dated
18.08.2021, which is the subject matter of challenge in the
present petition.
4. Shri Tiwari, learned Counsel for the
petitioner, submits that since there was a registered Gift
Deed in favour of the petitioner dated 14.10.1986, the
Tahasildar, acting upon the precept under Section 54 of
the C.P.C., ought to have considered the same and decided
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the right of the petitioner emanating from the said Gift
Deed. According to him, failure to do so, amounts to non-
exercise of the jurisdiction vested in the learned
Tahasildar. It is further submitted that without considering
this aspect, the learned S.D.O. has refused the application
for stay merely on the statement of the non-applicant,
which could not have been done by him.
5. Shri Joshi, learned Counsel for respondent
nos. 4 to 6, submits that the appeal before the learned
S.D.O., itself was not maintainable in law for the reason
that any claim made by the petitioner on the basis of any
gift will have to be placed before the Civil Court in the
final decree proceeding, and the Tahasildar or for that
matter the learned S.D.O. had no jurisdiction to entertain
such a plea. Inviting my attention, to the alleged Gift
Deed set up by the petitioner, he submits that the Gift
Deed is in respect of House no. 22 as described in para 1
thereof and not in respect of agricultural land.
6. Heard learned Counsel for the parties. In my
considered opinion, any claim or objection which the
petitioner may have, regarding the property which is the
subject matter of the decree passed in Special Civil Suit
No. 195/1990 decided on 27.02.1991, can only be raised,
before the Civil Court before whom the final decree
proceedings are pending and not before the Revenue
Authority, as the Revenue Authority has no jurisdiction
whatsoever, to entertain and decide such a plea,
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considering which, refusal of stay, by the learned S.D.O.,
by the impugned order dated 18.08.2021 cannot be
faulted with. I, therefore, do not see any merit in the
petition. Writ petition is accordingly dismissed. No costs.
JUDGE
Digitally
signed by
SANDIP
SANDIP MAHADEV
MAHADEV GATE
GATE Date:
2021.12.24
10:54:40
+0530
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