Bombay High Court
Hemant Vijaykumar Shah vs Smt. Aarti S Desai And Ors on 20 August, 2022
Bench: Nitin W. Sambre
(19)-WP-8866 -21.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Digitally
WRIT PETITION NO. 8866 OF 2021
signed by
BALAJI
BALAJI GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL Date:
2022.08.23
17:58:53
+0530
Shri. Hemant Vijaykumar Shah, ..Petitioner
Versus
Smt. Aarti S. Desai & Ors ..Respondents
Mr. Drupad S. Patil a/w B. G. Ligade, for the Petitioner.
Mr. Tanaji Mhatugade, for Respondent No.1.
Mr. C. D. Mali, AGP for Respondent-State.
CORAM : NITIN W. SAMBRE, J.
DATE : 20th AUGUST, 2022
P.C.
1. Heard.
2. Shivgonda Patil was blessed with three sons.
Ramgonda Patil sold 0.26 R land out of 94 R holding of
Shivgonda Patil to respondent No.1 vide Registered Sale
Deed dated 21st September, 2000. The respondent No. 1
accordingly mutation entry No.967 was effected.
3. Legal heirs of Ramgonda Patil questioned the
aforesaid mutation entry and executed fresh conveyance
to the aforesaid extent i.e. 0.26 R in favour of the
petitioner vide Sale Deed dated 29th January, 2010.
4. In the proceedings relating to challenge to the
mutation entry in favour of respondent No.1 at behest of
BGP. 1 of 4
(19)-WP-8866 -21.doc.
legal heirs of Shivgonda Patil and predecessor-in-title of the
petitioner, SDO vide order dated 21st September, 2002 set
aside the mutation entry on the ground that the transfer is
hit by the provisions of Section 7 of the Prevention of
Fragmentation and Consolidation of Holdings Act, 1947,
which order was confirmed upto Additional Divisional
Commissioner.
5. The order of Additional Divisional Commissioner
at the behest of respondent No.1 was upset by the State
Government in revision on 5th April, 2018. As such, this
petition.
6. Both the counsels have invited attention of this
Court to the Division Bench judgment of this Court in the
matter of Mallu Tatya Suryavanshi Vs. Shripati Rama
Gondhali reported in 1995(1) Mh.L.J. 816. Based on
the aforesaid judgment, contentions of Mr. Drupad Patil,
counsel appearing for the petitioner are, purchase of the
property by the petitioner from the legal heirs of
Ramgonda Patil is post setting aside of mutation entry.
Sale-deed in favour of respondent No.1 in that eventuality,
even if it is held that the transaction in favour of petitioner
is hit by provisions of Section 7, still it has to be held to be
rightly set aside by the Additional Divisional Commissioner.
7. While countering the aforesaid submission counsel
BGP. 2 of 4
(19)-WP-8866 -21.doc.
for the respondent No.1 would urge that the total holding
of Shivgonda Patil was 94 R, out of which after the share of
30 R each was given to Malgonda, Bhimgonda and
Ramgonda, 4 R land was transferred to neighbour, who in
turn sold the same in favour of the respondent No.1 on 19 th
December, 2007. According to him, the holding of
respondent No.1 is 34 R and that being so, he is out of the
clutches of the Provisions of Section 7 of the said Act.
8. Considered the rival claims. Prima-facie it
appears that the sale-deed in favour of the respondent
No.1 even it is hit by Provisions of the Prevention of
Fragmentation Act, whether same can be gone into at the
behest of such person whose own title is under cloud ?
Apart from above, this Court is also required to appreciate
whether the subsequent purchase of 4 R land by
respondent No.1 validates his sale deeds which is claimed
to have been hit by Section 7 of the Act.
9. In view thereof, rule.
10. Mr. Tanaji Mhatugade, waives service for
respondent No.1.
11. AGP waives for respondent/State.
12. Counsel for respondent No.1 in response to
BGP. 3 of 4
(19)-WP-8866 -21.doc.
Court's query on instructions make a categorical statement
that till the petition is decided, no third party interest shall
be created in the property.
13. Statement accepted.
[NITIN W. SAMBRE, J.]
BGP. 4 of 4
