Bombay High Court
Shri. Piraji Rakhmaji Dhobale And ... vs Shri. Baban Dadabhau Dhobale And ... on 11 October, 2022
Bench: C.V. Bhadang
1 WP 5038-21 Judg.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5038 OF 2021
Shri. Piraji Rakhmaji Dhobale and Anr. ..Petitioners
V/s.
Shri. Baban Dadabhau Dhobale and Ors. ..Respondents
----
Mr. Sanjiv Sawant a/w Abhishek Matkar, Malhar Bageshwar i/b
SNEHA S.M. Suryawanshi for the Petitioners.
NITIN
CHAVAN Mr. Sachin Kadam for Respondent nos. 6 to 8 and 10.
Digitally signed
by SNEHA NITIN
Mr. A.B. Avhad with Mahesh Rawool for Respondent Nos. 1 to
CHAVAN
Date: 2022.10.11
16:06:45 +0530
5, 11 to 13.
Mr. P.P. Pujari, AGP for the Respondent No.19/State.
----
CORAM : C.V. BHADANG, J.
DATE : 11 OCTOBER 2022
:JUDGMENT:
. Rule made returnable forthwith. The learned counsel for
the Respondents waive service. By consent of parties, petition is
heard finally.
2. The challenge in this petition, is to the order dated
19.07.2017 passed by the learned Additional Commissioner,
Pune Division, Pune in RTS (Revision) No. 249 of 2016. By the
impugned order, the learned Additional Commissioner has
confirmed the order dated 30.05.2016 passed by the Additional
Collector, Pune in RTS Appeal No. 101 of 2013 and the order
Sneha Chavan page 1 of 7
1 WP 5038-21 Judg.doc
dated 28.01.2013 passed by the learned Sub-Divisional Officer
(SDO) in RTS Appeal No. 25 of 2013.
3. The brief facts are that the Petitioners (Plaintiffs) had filed a
suit being RCS No. 145 of 1989 against the Respondents for
partition/separate possession and injunction etc. before the
learned Civil Judge, Junior Division at Ghodegaon, District
Pune. The Trial Court decreed the suit by a Judgment and
Decree dated 30.12.1996 declaring that the Petitioners were
having ½ share in the suit property and directing the partition of
the share by metes and bounds. Certain other reliefs of
injunction etc. were also granted. The Respondents (original
defendants) feeling aggrieved, challenged the said decree in Civil
Appeal No. 463 of 1997. The learned District judge at Pune
dismissed the Appeal on 2.5.2001 which was carried by the
Respondents (original defendants) before this Court in Second
Appeal No. 442 of 2005. This Court by an order dated
19.12.2007 has dismissed the Second Appeal, which has not been
carried any further. Thus, the decree for partition has attained
finality.
4. The Petitioners/decree holders filed Execution proceedings
bearing SR No. 3 of 2005 before the learned Civil Judge Junior
Division at Ghodegaon. It appears that the suit property being a
revenue paying property, a precept was sent to the Tahasildar,
Sneha Chavan page 2 of 7
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who by an order dated 18.05.2005 passed an order for possession
and the possession has been delivered as per the said decree of
partition. Pursuant to the said order, a Mutation Entry (ME) No.
1719 was sanctioned in respect of the partition of the suit land in
respect of Gat No. 441 (part) situated at Jarkarwadi, Taluka
Ambegaon, District Pune.
5. The first Respondent filed RTS Appeal No. 25 of 2013
challenging ME No. 1719 entry which was infact based on the
order dated 16.05.2008 passed by the Tahsildar in pursuance of
the execution of the partition decree.
6. The Sub-Divisional Officer by order dated 28.01.2013 has
set aside the order passed by the Circle Officer by which ME No.
1719 was confirmed and directed deletion of the part reserved for
resettlement of the project affected persons. The Additional
Collector by a Judgment and Order dated 30.05.2016 has
dismissed the Appeal confirming the order passed by the learned
SDO. The learned Additional Collector also directed that
necessary action be taken subject to any order passed by the
Competent Civil Court below Exh. 64 in Civil Suit No. 368 of
2009. In short, ME No. 1719 was required to be corrected after
deleting the area reserved for acquisition for the resettlement of
the project affected persons.
Sneha Chavan page 3 of 7
1 WP 5038-21 Judg.doc
7. The Petitioner feeling aggrieved challenged the same before
the Additional Commissioner in Revision Application No. 249 of
2016 which has been dismissed on 19.07.2017. Hence, this
petition.
8. I have heard learned counsel for the parties. Perused
record.
9. The learned counsel for the Petitioners has submitted that
the decree had attained finality till this Court when the second
appeal was dismissed and the ME No. 1719 was recorded as per
order passed in the execution Proceedings for Execution of the
partition decree. It is submitted that the Respondents
(defendants) had raised a contention in the second appeal that
the suit property cannot be partitioned as the same has been
included in a beneficial zone. It is submitted that this Court had
refused to accept said contention in paragraph 3 of the order as
the said contention was not raised before the courts below. It is
submitted that the revenue authorities therefore, could not have
directed modification of the mutation entry no. 1719 which is
contrary to the decree passed in the civil suit as confirmed by this
Court.
10. It is submitted that even otherwise the inclusion of a part of
the land in a beneficial zone for resettlement of the project
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affected persons cannot have any bearing on the partition of the
property as Government would be required to pay the
compensation to the party on whose share the said portion/part
would fall.
11. The learned counsel for the private Respondents has
submitted that the contention based on the suit property being
included in a beneficial zone was not accepted by this Court only
on the ground that the said contention was not raised before the
courts below. It is submitted that there is an order passed by the
Divisional Commissioner on 05.02.2005 in an application filed
by Sakharam Dhobale, Dadabhau Dhobale, Maruti Dhobale and
others under Section 48(1) of the Land Acquisition Act. 1894
and Section 22 of the Maharashtra Project Affected Persons
Rehabilitation Act, 1986. He has therefore, supported the
impugned order.
12. The learned AGP was asked to take specific instructions
whether the acquisition for the project affected persons has been
proceeded with or completed. The learned AGP today has
submitted that the acquisition has not been completed and no
award has been passed.
13. I have considered the submissions made. The modification
of ME No. 1719 is ordered only on the ground that a part of the
Sneha Chavan page 5 of 7
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land has been included in the beneficial zone/reservation for
acquisition for resettlement of the project affected persons. It can
be seen that such a ground was raised in the second appeal, which
has been negatived. The reason for not accepting the said
contention will not be decisive, once it is found that this Court
had refused to accept the said contention.
14. Thus in my considered view, the learned counsel for the
Petitioners is right that it was not open for the revenue authorities
to direct the modification of ME No. 1719 (which entry was
taken in the execution proceeding of a partition decree as
confirmed by this court).
15. That apart there is also no material to show that the land
has actually been acquired. The reservation for acquisition
appears to be prior to 1998 and as per the statement made on
behalf of the State, there is no award passed as such till today.
Even assuming that the land is reserved for such acquisition, is
not sufficient to direct such modification as ultimately whichever
party is allotted the said part of the land(as the land is partitioned
by metes and bounds) would be entitled for compensation.
16. Looked from any angle, the impugned order cannot be
sustained. The petition, therefore, succeeds. The petition is
accordingly allowed. The impugned orders passed by the Sub-
Sneha Chavan page 6 of 7
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Divisional Officer, the Additional collector and the Additional
Commissioner, Pune Division, Pune are hereby set aside. The
Mutation Entry No. 1719 is hereby restored.
Rule is made absolute in the aforesaid terms with no order
as to costs.
C.V. BHADANG, J.
Sneha Chavan page 7 of 7
