Bombay High Court
Shamrao Dattu Patil And Anr vs State Of Maharashtra And Ors on 27 April, 2023
Bench: N. J. Jamadar
2023:BHC-AS:13049
18-wp-1354-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.1354 OF 2022
Shamrao Dattu Patil and Another ...Petitioners
vs.
State of Maharashtra and Others ...Respondents
Mr. Paras Yadav, for the Petitioners.
Mr. Satyajeet Shirke, for Respondent No. 7.
Ms. V.S. Nimbalkar, AGP for the State.
CORAM : N. J. JAMADAR, J.
DATE : APRIL 27, 2023
P.C.:
1. Heard the learned counsel for the parties.
2. The challenge in this petition is to a judgment and order dated
20th October, 2021 passed by the Additional Chief Secretary,
(Revenue) and Special Officer whereby the Revision Application
preferred by the petitioners being RTS-3820/11/Case No.45/J-5A,
Case No. 30(11)2020 came to be dismissed affirming the order
passed by the Additional Commissioner, Pune in RTS No. 115 of
2016 dated 26th September, 2019 which, in turn, had affirmed the
order passed by the Additional Collector, Kolhapur in Second
Appeal No. 9 of 2012 against a judgment and order in BND/A/No. 3
of 2011.
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3. By the judgment and order dated 30 th May, 2012 the Sub
Divisional Officer, Kolhapur Division, Kolhapur had allowed the
application preferred by the respondent No. 7 under section 138 of
the Maharashtra Land Revenue Code, 1966 and directed the
Tahsildar, Karveer to take the possession of 0.02R land bearing
Survey No. 138/12 and handover the same to respondent No. 7 on
the basis of the encroachment which was noticed in the
measurement carried out by the surveyor under MR. No. 3439 of
2003.
4. The learned counsel for the petitioners submitted that
respondent No. 7, while prosecuting the remedies before the
revenue authorities, had instituted a Civil Suit, bearing RCS No. 91
of 2011, before the Civil Judge Senior Division, Kolhapur for
removal of encroachment and delivery of possession of the suit
property. In the said suit respondent No. 7 had preferred an
application for interim injunction which came to be rejected by the
civil Court by order dated 1st March, 2021. It was urged that since
the respondent No. 7 had already instituted a suit for substantive
relief of removal of encroachment and delivery of possession of suit
property, the proceedings could not have been prosecuted before
the revenue authorities.
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5. The learned counsel for the petitioners invited attention of
the Court to the provisions contained in sub section (4) of section
138 of the Maharashtra Land Revenue Code, 1966. Sub section (4)
and (5) read as under:-
138 Effect of settlement of boundary :-
(4) :- Where any person has been ejected or is about to
be ejected from any land under the provisions of sub-
section (2), he may, within a period of one year from
the date of the ejectment or the settlement of the
boundary, institute a civil suit to establish his title
thereto.
(5) Where a civil suit has been instituted under sub-
section (4) against any order of ejectment, such order
shall not be subject to appeal or revision.
6. Drawing an analogy, the learned counsel would urge that
having instituted the suit, the respondent No. 7 could not have
prosecuted the proceedings before the revenue authorities. I am
afraid to accede to this submission.
7. The provisions contained in sub section (4) of section 138
operate in a converse situation. In view of the order passed by the
authorities under the Code, in fact, the petitioners are under a
threat of ejectment from the suit land. Therefore, it was for the
petitioners to invoke the remedy before the civil Court. In any
event, the determination or the settlement of boundaries under
section 138 of the Code is de hors the title to the encroached
portion. The authorities under the Code seem to have committed no
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error in determining the issue which squarely falls within the ambit
of section 138 of the Code.
8. It would, therefore, be appropriate to grant liberty to the
petitioners to institute a suit in respect of allegedly encroached
portion of the land and seek appropriate relief, as envisaged by sub
section (4) of section 138 of the Code.
Hence, the following order.
ORDER
1] The petition stands disposed with liberty to the petitioners to
institute a suit and seek appropriate relief in respect of the subject
matter of the impugned order on or before 30th June, 2023.
2] The order passed by the Revenue Authorities shall not be given
effect, till 30th June, 2023.
3] Petition disposed.
4] No costs.
(N. J. JAMADAR, J.)
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