Bombay High Court
Harihar S/O Laxmanrao Gugilwar vs The State Of Maharashtra, Thr. ... on 15 September, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7133 OF 2016
( Harihar S/o Laxmanrao Gugilwar, Dead Thr. LRs 1-a to 1-e
Vs.
State of Maharashtra & Ors. )
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Shri V.G. Bhamburkar, Advocate for the petitioner/s.
Shri S.M. Ukey, Addl.GP for the respondent Nos. 1 to 4/State.
Ms. Trishala Dhait, Adv. h/f Shri Abhay Sambre, Adv. for the respondent
No. 5.
CORAM: AVINASH G. GHAROTE, J.
DATED : 15th SEPTEMBER, 2021.
Heard Mr. Bhamburkar, learned counsel for
the petitioner, Mr. Ukey, learned Addl.GP for respondent
Nos. 1 to 4, Ms. Dhait, learned counsel holding for Mr.
Abhay Sambre, learned counsel for the respondent
No. 5.
2. The challenge is to the order dated
17.06.2016 passed by the respondent No. 1 in Revision
at the behest of the respondent No. 5, whereby the
orders dated 02.02.2012, passed by the respondent No.2
in Appeal No. 550/2011 has been set aside and the order
dated 17.02.2011 passed by the respondent No.3 and the
order dated 09.09.2010 passed by the respondent No.4
have been confirmed.
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3. The dispute relates to the land of survey
No. 100/2, which stood in name of respondent No. 5 by
virtue of sale-deed dated 04.05.1962. On 14.04.1983, a
partition is claimed to have been arrived at between
Laxmanrao and his two sons, the petitioner and the
respondent No.5 in which there is a claim of distribution
of some plots. This partition however was not acted upon
which is the admitted position between the petitioner
and the respondent No.5.
4. On 14.07.1983, the respondent No.5 is
claimed to have executed a relinquishment deed in
favour of his father, Laxmanrao recognizing title of 13
plots in the layout on the portion of survey No. 100/2
admeasuring 3 acres. This relinquishment deed is a
registered document.
5. On 07.10.1988, Laxmanrao executed a Will
by which six plots were bequeathed by him to the
petitioner. Laxmanrao passed away on 17.07.1994. On
19.05.2010, a mutation entry was effected in favour of
the petitioner in respect of the six plots, as bequeathed to
him under the Will dated 17.10.1988 by Laxmanrao.
6. On 02.08.2010, the respondent No.5,
lodged a complaint with respondent No. 3 contending
that the mutation entry, was effected without a notice to
him and therefore the same ought to be cancelled. The
respondent No. 3 by his order dated 11.08.2010 directed
the respondent No. 4, to review the mutation entry by
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accepting the plea of non service of notice. On
09.09.2010, the respondent No.4/TILR, Yavatmal
cancelled the mutation entry dated 19.05.2010.
7. Against this order dated 09.09.2010 by the
respondent No. 4/TILR, Yavatmal, an appeal was
preferred by the petitioner before the respondent No.3
which came to be rejected on 17.02.2011 against which a
second appeal has been preferred before respondent
No.2/Deputy Director of Land Records, Amravati, which
came to be allowed on 02.02.2012 on the presumption,
that in a suit filed by the petitioner bearing Special Civil
Suit No. 41/11, Harihar Laxmanrao Gugilwar Vs. Dr.
Fanidhar Laxmanrao Gugilwar, the legality and the
validity of the relinquishment deed dated 14.07.1983,
was upheld, based upon which the mutation entry was to
restored.
8. In a Revision filed by the respondent No.5
against the order dated 02.02.2012, the respondent No.1
by the order dated 17.06.2016, holding that the notices
for effecting the mutation entry dated 19.05.2010, were
not served, quashed the order dated 02.02.2012 and
restored the orders passed by the respondent Nos. 3 & 4.
9. Though Mr. Bhamburkar, the learned
counsel for the petitioner, urges that the impugned order
dated 17.06.2016, is unsustainable in law in view of the
Will of late Laxmanrao dated 07.10.1988, however,
learned AGP has rightly invited my attention to the
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judgment in Special Civil Suit No. 41/2011 dated
30.12.2015, in which the counter claim as filed by the
respondent No.5, challenging the relinquishment deed
dated 14.07.1983, has been allowed and the
relinquishment deed executed by respondent No.5 in
favour of Laxmanrao, his father has been held to be
inconclusive, illegal and a nullity, which would
consequently adversely affect not only the Will dated
07.10.1988 by Laxmanrao, but also the mutation entry
dated 19.05.2010.
10. Mr. Bhamburkar, learned counsel for the
petitioner submits that the petitioner has challenged the
judgment dated 30.12.2015 in Special Civil Suit No.
41/2011, by way of appeal which is presently pending
before the District Judge, Yavatmal, however according
to the learned counsel for respondent No.5, there is no
stay operating, in view of which the findings have been
rendered by Civil Judge Senior Division, Yavamal in the
judgment dated 30.12.2015 in Special Civil Suit No.
41/2011 still hold the field. The impugned order,
therefore, cannot be faulted with on this ground also.
11. In view of the above, I do not see any merit
in this petition, the same is dismissed with no order as to
costs.
JUDGE
SD. Bhimte
