Bombay High Court
Namdev Mahadu Jambhulkar And Ors vs State Of Maharashtra Thr Ministry ... on 10 August, 2023
Bench: N. J. Jamadar
2023:BHC-AS:22826
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO.2298 OF 2022
WITH
INTERIM APPLICATION NO.18932 OF 2022
WITH
INTERIM APPLICATION NO.18931 OF 2022
Namdev Mahadu Jambhulkar and Others ...Petitioners
vs.
The State of Maharashtra and Others ...Respondents
Ms. Prachiti Deshpande, for the Petitioners.
Mr. Surel Shah i/b. Mr. Chaitanya Nikte, Mr. Hitanshu Jain and Mr.
Prajit Sahane, for Respondent Nos. 3 to 10.
Mr. C.D. Mali, AGP for the State.
CORAM : N. J. JAMADAR, J.
RESERVED ON : JUNE 15, 2023
PRONOUNCED ON : AUGUST 10, 2023
-------------
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for the parties, heard finally.
2. This petition assails the legality, propriety and correctness of
an order passed by the Tahsildar, Mulshi (Poud), Dist. Pune in HNO/
257/SAR/05/2011 dated 10th December, 2021 directing rectification
of mutation entry No. 8744 to the extent of deleting the survey No.
233/2A/1 from the perview of the said mutation.
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3. Though the litigation has a checkered history with multiple
rounds of litigation before the revenue authorities and the Civil
Courts and this round in effect being the third round of substantive
proceedings before this Court yet the background facts necessary
for the determination of this petition can be stated as under:
3.1 Agricultural land bearing survey No. 233 admeasuring 22
Acre and 23 R situated at Hinjewadi, Tal. Mulshi, District Pune was
held by the More family. Ganpat Jambhulkar, the predecessor in
title of the petitioners, claimed to have purchased an area
admeasuring 11 Acre and 11.50 Gunthas out of the said land
bearing survey No. 233 from one Mr. Ganpat More under a
registered Sale Deed dated 20th April, 1960. M. Entry No.1568 came
to be certified carving out survey Nos. 233/1 and 233/2 and
mutating the names of Ganpat Jambhulkar to survey No.233/1 and
name of Bhiva More to survey No. 233/2, each admeasuring 11
Acre and 11.5 R.
3.2 Asserting that, without notice to the predecessor in title of the
petitioners, vide mutation entry No. 1802, the area of the survey
No. 233/1 (the subject land) came to be reduced to 7 Acres and 21 R
from 11 Acres and 11.5 R. The petitioners preferred Revision
Application No. PTI/WS/318/2001 before the Collector, Pune. By a
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judgment and order dated 22nd July, 2002, the Additional Collector
was persuaded to allow the revision thereby setting aside the
mutation entry No. 1802 and restoring mutation entry 1568,
primarily on the ground that in the intervening period the Civil
Courts had adjudicated the dispute and returned a finding that the
Sale Deed dated 20th April, 1960 executed in favour of the
predecessor in title of the petitioners was not fabricated and void.
3.3 The said adjudication was made in Regular Civil Suit No. 238
of 2000 instituted by Baban More and Pandurang More, the
successors in interest of Bhiva More, in whose name survey No.
233/2 had been mutated under mutation entry No. 1568. Baban
and Pandurang More approached the Civil Court with a case that
they were the absolute owners and in exclusive possession of the
entire survey No. 233 admeasuring 22 Acre and 23 Gunthas. The
alleged vendors of Ganpat Jambhulkar had no concern with More
family. The petitioners-defendants in the said suit falsely claimed to
have acquired ownership over the subject land on the basis of
fabricated and false Sale Deed dated 20th April, 1960. Thus they
prayed for a declaration that the said Sale Deed was void and
consequential relief of injunction.
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3.4 By a judgment and order dated 31st March, 2021 the said suit
came to be dismissed. An appeal preferred thereagainst by Baban
More and Pandurang More, being Civil Appeal No. 459 of 2001, also
came to be dismissed by the learned IIIrd Extra Joint District Judge
by a judgment and order dated 11th October, 2004.
3.5 An endevour was made to assail the said decree in a Second
Appeal before this Court. Since there was delay, an application for
condonation of delay bearing Civil Application No. 799 of 2006 in
Second Appeal (St.) No. 9327 of 2006 was filed. However, the said
application came to be dismissed as withdrawn vide order dated
16th February, 2008.
3.6 In the intervening period, Baban and Pandurang More had
assailed the order passed by the Additional Collector in Revision
Application No. PTI/WS/318/2001 setting aside mutation entry No.
1802 and restoring mutation entry No. 1568.
3.7 In Revision Application No. PTI/WS/318/2001 by a judgment
and order dated 13th June, 2005 the Addl. Commissioner, Pune
allowed the revision by setting aside the order of the Addl. Collector.
Resultantly, mutation entry No. 1802, whereby the area of the
subject land came to be reduced to 7 Acre 21 R, came to be restored.
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3.8 The petitioners challenged the said order in Writ Petition No.
9127 of 2005. By a judgment dated 26 th February, 2015 this Court
allowed the petition holding, inter alia, that the Additional
Commissioner was not at all justified in setting aside the order
passed by the Additional Collector and in the process the Additional
Commissioner had misread or misinterpreted the judgment and
decree dated 31st March, 2001 passed by the Civil Court and the
judgment and decree dated 11th October, 2004 passed by the First
Appellate Court.
3.9 In the meanwhile, respondent Nos. 3 to 10 claimed to have
purchased various parcels of agricultural land out of survey No.
233/2 under diverse Sale Deeds aggregating to 15 Acre and 9 R.
The respondents No. 3 to 10 preferred an application being Civil
Application No. 827 of 2015 in the above disposed Writ Petition No.
9127 of 2005 seeking recall of the order dated 26 th February, 2015
and also restrain the petitioners herein from creating third party
interest and/or causing obstruction to peaceful possession of the
agricultural land bearing survey No.233/2 admeasuring 15 Acre
and 9 R.
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3.10 By an order dated 8th July, 2015 this Court clarified that the
said order in Writ Petition No. 9127 of 2005 pertained to survey No.
233/1. The application preferred by respondent Nos. 3 to 10 was in
respect of survey No. 233/2 and thus no case was made out to recall
the order dated 26th February, 2015.
3.11 It would be contextually relevant to note that when an
apprehension was expressed on behalf of respondent Nos. 3 to 10
that on the strength of the said order dated 26 th February, 2015 the
petitioners were seeking to interfere with the possession of the
applicants over the lands bearing survey No. 233/2, this Court
clarified that it was always open to the applicant to resort to proper
civil proceedings for the protection of their alleged rights. It was
reiterated that the order dated 26 th February, 2015 was in respect
of entries in the record of right pertaining to the land survey No.
233/1.
3.12 In pursuance of the order passed by this Court, the revenue
authorities effected mutation entry No. 8744 and both survey Nos.
233/1 and 233/2A/1 were thereunder mutated in the name of the
petitioners.
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3.13 It seems, instead of invoking the remedies before the Civil
Court, the respondents No. 3 to 10 approached the Tahsildar,
Mulshi for review of the said order in survey No. 8744.
3.14 By an order dated 14th September, 2015 the Sub Divisional
Officer, Maval-Mulshi Sub Division, directed the Tahsildar to review
the proceeding in mutation entry No. 8744, in exercise of the
powers under section 258 of the Maharashtra Land Revenue Code,
1966 (the Code).
3.15 In Writ Petition No. 10831 of 2015 the petitioners
unsuccessfully challenged the said direction to review. By an order
dated 29th October, 2015 this Court declined to entertain the
petition as remedy of statutory appeal was available under the
Code, 1966.
3.16 The petitioners endeavour to assail the direction to review the
decision to mutate entry No. 8744, did not succeed upto the State
Government as by an order dated 4 th March, 2022 in
RTS/3421/2053/PK.224/J-5, the Minister (Revenue) dismissed the
Revision Application.
3.17 Upon review, the Tahsildar, Mulshi, by the impugned order
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was persuaded to rectify mutation entry No. 8744 to the extent that
the land bearing survey No. 233/2A/1 be deleted from the effect
and operation of the said mutation entry. The Tahsildar was of the
view that the order passed by this Court in Writ Petition No. 9127 of
2005 was in respect of survey No. 233/1 only and it did not govern
survey No. 233/2 and, therefore, the parcel of land bearing sub
survey No. 233/2A/1 carved out of survey No. 233/2, could not
have been mutated in the name of the petitioners vide mutation
entry No. 8744.
3.18 Being aggrieved, the petitioners have invoked the writ
jurisdiction.
4. I have heard Ms. Prachiti Deshpande, learned counsel for the
petitioners, Mr. Surel Shah, the learned counsel for respondent Nos.
3 to 10 and Mr. Mali, learned AGP for respondent Nos. 1 and 2. The
learned counsel took the Court through the pleadings, affidavits
filed in support of, and in opposition to, the petition and the
material on record.
5. Ms. Deshpande, the learned counsel for the petitioners
strenuously submitted that the impugned order manifests an intent
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on the part of the revenue authorities to overreach the order
passed by this Court in Writ Petition No. 9127 of 2005. Ms.
Deshpande urged with a degree of vehemence that the validity of
the Sale Deed in favour of the predecessor in title of the petitioners
having been conclusively determined by the Civil Court, it was not
open for the revenue authorities to take refuge under the untenable
claim that the earlier proceedings pertained to survey No. 233/1
only. The fact that the predecessor in title of the petitioners had
purchased ½ portion of survey No. 233 is evidenced by a registered portion of survey No. 233 is evidenced by a registered
Sale Deed and an endevour to challenge the legality and validity
thereof failed up to this Court and yet for more than 60 years,
despite existence of a registered instrument and orders passed by
the Civil Court, the petitioners are made to run from pillar to post
for correct entries in the revenue record and, therefore, this is a fit
case to exercise the extraordinary writ jurisdiction, submitted Ms.
Deshpande.
6. Mr. Shah, the learned counsel for respondent Nos. 3 to 10
countered the submissions on behalf of the petitioners with equal
tenacity. It was submitted that the petitioners have an efficacious
statutory remedy before the authorities under the Code, 1966.
Thus, there is no reason to entertain the petition.
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7. On merits, Mr. Shah would urge that, the petitioners have
resorted to a boggie of revenue authorities overreaching the orders
of Civil Courts. On a close scrutiny, according to Mr. Shah, it
becomes abundantly clear that the Tahsildar was justified in
passing the impugned order. In fact, this Court had clarified in Civil
Application No. 827 of 2015, that the challenge in Writ Petition No.
9127 of 2005 was restricted to survey No. 233/1 yet, while
certifying mutation entry 8744, the Tahsildar had unjustifiably
included survey No. 233/2A/1 which indisputably formed part of
survey No. 233/2. That being the position, according to Mr. Shah, if
the petitioners are aggrieved by the impugned order, they have
their remedies before the authorities under the Code, 1966 or the
Civil Court. Thus, there is no exceptional circumstance which would
warrant exercise of extraordinary writ jurisdiction, especially in
the face of efficacious statutory remedy, submitted Mr. Shah.
8. I have carefully considered the submissions canvassed
across the bar.
9. To begin with, I am fully mindful of the fact that the impugned
order passed by the Tahsildar is amenable to further challenge
before the authorities under the Code, 1966. Undoubtedly, the
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remedy is statutory. It can be definitely urged that the petitioners
have an efficacious alternate statutory remedy. At the same time, it
needs to be emphasized that the existence of an alternate
efficacious remedy, by itself, does not preclude the Court from
exercising the writ jurisdiction as ultimately it is a self-imposed
restraint. I am also conscious of the fact that the existence of a
statutory remedy of an appeal is a factor which ordinarily and
invariably dissuades the Court from exercising the writ jurisdiction.
10. The legal position is well neigh settled. The existence of an
alternative remedy is one of the limitation on the exercise of writ
jurisdiction. Yet, it is a self-imposed limitation. There are exception
to the rule of alternative remedy where High Court would be
justified in exercising the writ jurisdiction, namely, where the
statutory authority has not acted in accordance with the provisions
of the enactment in question, or in defiance of fundamental
principles of judicial procedure, or has resorted to invoke the
provisions which are not in existence or where an order has been
passed in total violation of the principles of natural justice.
11. In the case of State of H.P. and Others vs. Gujarat Ambuja
Cement Limited and Another1 a three Judge Bench of the Supreme
1 (2005) 6 Supreme Court Cases 499.
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Court exposited the law as under:-
17] We shall first deal with the plea regarding
alternative remedy as raised by the appellant State.
Except for a period when Article 226 was amended by
the Constitution (Forty-second Amendment) Act, 1976,
the power relating to alternative remedy has been
considered to be a rule of self imposed limitation. It is
essentially a rule of policy, convenience and discretion
and never a rule of law. Despite the existence of an
alternative remedy it is within the jurisdiction of
discretion of the High Court to grant relief under
Article 226 of the Constitution. At the same time, it
cannot be lost sight of that though the matter relating
to an alternative remedy has nothing to do with the
jurisdiction of the case, normally the High Court should
not interfere if there is an adequate efficacious
alternative remedy. If somebody approaches the High
Court without availing the alternative remedy provided
the High Court should ensure that he has made out a
strong case or that there exist good grounds to invoke
the extraordinary jurisdiction.
12. In the case of Commissioner of Income Tax and Others vs.
Chhabil Dass Agarwal2, the legal position was expounded as under:-
11] ....... It is settled law that non-entertainment of
petitions under writ jurisdiction by the High Court
when an efficacious alternative remedy is available is
a rule of self-imposed limitation. It is essentially a
rule of policy, convenience and discretion rather than
a rule of law. Undoubtedly, it is within the discretion
of the High Court to grant relief under Article 226
despite the existence of an alternative remedy.
However, the High Court must not interfere if there is
an adequate efficacious alternative remedy available
to the petitioner and he has approached the High
Court without availing the same unless he has made
out an exceptional case warranting such interference
or there exist sufficient grounds to invoke the
extraordinary jurisdiction under Article 226.
12] The Constitution Benches of this Court in K.S.
Rashid and Sons vs. Income Tax Investigation
2 (2014) 1 Supreme Court Cases 603.
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Commission, AIR 1954 SC 207; Sangram Singh vs.
Election Tribunal, Kotah, AIR 1955 SC 425; Union of
India vs. T.R. Varma, AIR 1957 SC 882; State of U.P.
vs. Mohd. Nooh, AIR 1958 SC 86 and K.S.
Venkataraman and Co. (P) Ltd. vs. State of Madras,
AIR 1966 SC 1089 have held that though Article 226
confers a very wide powers in the matter of issuing
writs on the High Court, the remedy of writ absolutely
discretionary in character. If the High Court is
satisfied that the aggrieved party can have an
adequate or suitable relief elsewhere, it can refuse to
exercise its jurisdiction. The Court, in extraordinary
circumstances, may exercise the power if it comes to
the conclusion that there has been a breach of
principles of natural justice or procedure required for
decision has not been adopted.
13. In the case of Radha Krishan Industries vs. State of Himachal
Pradesh and Others3 after a survey of the previous precedent on the
maintainability of the Writ Petition in the face of an alternative
remedy, the Supreme Court culled out the principles of law as
under:-
27] The principles of law which emerge are that :
27.1 The power under Article 226 of the
Constitution to issue writs can be exercised not only
for the enforcement of fundamental rights, but for any
other purpose as well.
27.2 The High Court has the discretion not to
entertain a writ petition. One of the restrictions placed
on the power of the High Court is where an effective
alternate remedy is available to the aggrieved person.
27.3 Exceptions to the rule of alternate remedy
arise where (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part
III of the Constitution; (b) there has been a violation of
the principles of natural justice; (c) the order or
3 (2021) 6 Supreme Court Cases 771.
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proceedings are wholly without jurisdiction; or (d) the
vires of a legislation is challenged.
27.4 An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily,
a writ petition should not be entertained when an
efficacious alternate remedy is provided by law.
27.5 When a right is created by a statute, which
itself prescribes the remedy or procedure for enforcing
the right or liability, resort must be had to that
particular statutory remedy before invoking the
discretionary remedy under Article 226 of the
Constitution. This rule of exhaustion of statutory
remedies is a rule of policy, convenience and
discretion.
27.6 In cases where there are disputed questions
of fact, the High Court may decide to decline
jurisdiction in a writ petition. However, if the High
Court is objectively of the view that the nature of the
controversy requires the exercise of its writ
jurisdiction, such a view would not readily be
interfered with.
14. The moot question which, crops up for consideration is
whether, in the facts and circumstances of the case, this Court
would be justified in exercising the writ jurisdiction despite the
existence of an alternate statutory remedy ? An answer may
warrant answers to further questions: Are the facts so glaring and
exceptional ? Are the issues concluded by prior determination
between the parties ? Whether relegating the petitioners to the
remedies under the Code, 1966 would further perpetuate injustice ?
Answers to these questions would bear upon the necessity of
exercise of writ jurisdiction.
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15. First and foremost, un-controverted facts: 1) It is
incontrovertible that the subject land originally formed part of
survey No. 233. 2) The carving out of survey No. 233/1, 233/2 out
of survey No. 233 vide mutation entry No. 1568 dated 30 th June,
1960 is incontestible, though the exact area of survey No. 233/1
and 233/2 is at the heart of the controversy. 3) Indisputably, the
respondent Nos. 3 to 10 claimed through Baban and Pandurang
More, the successors in interest of Bhiva More whose name was
mutated to survey No. 233/2 vide mutation entry No. 1568. 4) The
facts that the predecessor in title of respondent Nos. 3 to 10 had
instituted the suit claiming absolute ownership and exclusive
possession over the entire survey No. 233 and had, inter alia,
sought a declaration that the Sale Deed dated 20 th April, 1960
executed in favour of the predecessor in title of the petitioners was
void and the said suit and appeal there against came to be
dismissed are incontestible. 5) The thrust of the claim of
respondent Nos. 3 to 10, or for that matter their predecessors in
title, is based on mutation entry No. 1802, whereby the area of
survey No. 233/1 came to be reduced to 7 Acre and 31 R. 6) It is
recorded in the orders that no record of certification of mutation
entry No. 1802 was forthcoming.
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16. In the backdrop of the aforesaid rather incontrovertible facts,
the petitioners claim hinges upon the area of the land which their
predecessors in title acquired under the registered Sale Deed dated
20th April, 1960 as that is the primary source of title. The registered
Sale Deed dated 20th April, 1960 described the property transferred
thereunder as Northern side agricultural land, out of survey No.
233, admeasuring 11 Acre and 11 Gunthas. The land was also
described with reference to the boundaries. The vendors remaining
land was shown to situate towards the Southern side. Thus, in the
Sale Deed, the land, which was sold thereunder, was described both
with reference to area and boundaries. In the face of the registered
Sale Deed, the submission that the Sale Deed does not describe the
area of the land transferred thereunder with sufficient clarity to
identify the alienated land could not have been countenanced and
does not merit countenance.
17. If there was any doubt about the area of land conveyed
under the Sale Deed, the same stood clarified as early as the year
1960. By certification of mutation entry No. 1568, survey No. 233
came to be divided into survey Nos. 233/1 and 233/2 each
admeasuring 11A and 11 R. Up to this point of time, in the least,
there was no controversy as regards the area of the land sold under
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the Sale Deed dated 20th April, 1960.
18. The institution of Regular Civil Suit No. 238 of 2000 by the
predecessor in title of respondent Nos. 3 to 10 seeking declaration
as to absolute ownership over the entire survey No. 233 and that
Sale Deed dated 20th April, 1960 was fabricated and void, and the
outcome thereof, were required to be appreciated in the correct
perspective. In the said suit, the learned Civil Judge settled, inter
alia, an issue that as to 'whether the plaintiff thereunder proved
that the Sale Deed dated 20th April, 1960 executed in favour of the
predecessor in title of the petitioners was fabricated one' and
answered the same in the negative with a categorical finding. As
noted above, the predecessor in title of respondent Nos. 3 to 10
suffered adverse finding before the Civil Court and the first
appellate Court and an endeavour to assail the same remained
abortive as an application for condonation of delay came to be
withdrawn.
19. In the face of this adjudication, it would be rather naive to
accede to a submission that, in the said suit, the Civil Court had not
delved into the question of area of the survey No. 233/1, which was
purchased by the predecessor in title of the petitioners under the
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Sale Deed. Such a submission looses sight of the case of the
predecessor in title of respondent Nos. 3 to 10 that they were the
owners of entire survey No. 233 and the Sale Deed was void.
20. In my view, once the validity of the Sale Deed is adjudicated,
the revenue authorities could not have brushed aside the said
adjudication on the premise that there is no determination as to the
area of land purchased under the Sale Deed. If at all such a
challenge subsists, it can be properly constituted before the Civil
Court and not revenue authorities.
21. That leaves certification of mutation entry No. 1802, on which
the edifice of respondent Nos. 3 to 10's case was sought to be built.
Mr. Shah would urge that the said mutation entry was not
challenged for decades and eventually when the Additional
Commissioner had restored mutation entry No. 1802 and the
petitioners had challenged the same before this Court, the
respondent Nos. 3 to 10 were not impleaded as parties to the Writ
Petition, despite being aware that the properties had changed
hands. It was further submitted that since the entire challenge in
the proceedings before the revenue authorities culminating in Writ
Petition No. 9127 of 2005 was restricted to the area of survey No.
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233/1, vide mutation entry No. 8744, area of a sub division forming
part of survey No. 233/2 could not have been annexed.
22. The aforesaid submissions appear attractive at the first blush.
However, if considered through the prism of entire setting of the
matter, the fragile thread to which respondent Nos. 3 to 10's case
hangs in balance crumbles traceless. The entire case is based on
certification of mutation entry No. 1802 whereby the area of survey
No. 233/1 came to be reduced to 7 Acre and 31 R. As noted above,
the Additional Collector has recorded a categorical finding that
there is no record to throw light on the circumstances under which
mutation entry No. 1802 came to be certified and what was its
basis.
23. At this stage the fact that the properties/ lands were carved
out of survey No. 233 into sub division Nos. 233/1 and 233/2 vide
mutation entry No. 1568 pursuant to registered Sale Deed dated
20th April, 1960 assumes significance. It is not a case of respondent
Nos. 3 to 10, or for that matter their predecessor in title, that there
was any other instrument on the basis of which mutation entry No.
1802 came to be certified. On the contrary, the predecessor in title
of respondent Nos. 3 to 10 had asserted title over the entire survey
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No. 233 and sought declaration against the validity of the Sale Deed
dated 20th April, 1960. This stand dismantles the very edifice of
certification of mutation entry No. 1802.
24. Mr. Shah placed a very heavy reliance on the observations of
this Court in the order in Civil Application No. 827 of 2015 in Writ
Petition No. 9127 of 2005, to bolster up the submission that this
Court had clarified that the dispute in Writ Petition No. 9127 of
2005 was restricted to survey No. 233/1. The observations of this
Court in paragraphs 2 to 4 are material for the determination of the
controversy and hence extracted below:-
2] Heard the learned counsels for the parties and
perused the record. Admittedly, the applicants were
not arrayed as parties to writ petition no. 9127 of
2005. The record discloses that the reliefs in writ
petition and the consequent order dated 26 February
2015 made therein relates to entries in the Record of
Rights relating to survey no. 233/1. The learned
Senior Advocate appearing for the original petitioners
in writ petition no. 9127 of 2005 once again, asserts
that the petition and the reliefs therein were
concerning property surveyed under no. 233/1. The
civil application, essentially concerns property
surveyed under no. 233/2. Accordingly, it cannot be
said that any fraud was practiced upon this Court in
either instituting the writ petition or obtaining the
order dated 26 February 2015 therein. There is
accordingly, no case made out for recall of the order
dated 26 February 2015.
3] Mr. Warunjikar, the learned counsel for the
applicants however contended that on the basis of the
order dated 26 February 2015, the original
petitioners seek to interfere with the possession of
the applicants to the properties, which are mainly
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described as properties surveyed under no. 233/2.
There is neither any reason nor is this the occasion to
go into or entertain such allegations. This is because,
it is always open to the applicants to take resort to
appropriate civil proceedings for the protection of
their alleged rights. As indicated earlier, the order
dated 26 February 2015 concerns entries in Record
of Rights pertaining to the property surveyed under
no. 233/1.
4] Mr. Warunjikar, made reference to some terms of
compromise dated 22 November 2005, entered into
between the original petitioners in writ petition no.
9127 of 2005 and the applicants. Mr. Warunjikar
contends that the effect of such terms was not
considered whilst making the order dated 26
February 2015. At least prima facie, the compromise
terms appear to relate to property surveyed under
no. 233/2. That apart, it is settled position in law,
which has in fact been reiterated in the order dated
26 February 2015, that mere entries in survey
records are not determinative of title of any of the
parties to the property.
25. To appreciate the import of the aforesaid observations in a
correct perspective, the reasons which weighed with this Court in
allowing the Writ Petition No. 9137 of 2005 also deserve to be noted.
They read as under:-
8] The impugned order made by the Additional
Commissioner is required to be set aside for several
reasons. In the first place, the Additional
Commissioner has not at all seriously gone into the
issue as to the manner in which the original mutation
entry no. 1568 was varied without any notice to the
petitioners. It was submitted that the order by which
said variation was brought about is not even available
in the records of the revenue authorities. Secondly, it
is settled position in law that the revenue entries, per
se, are not determinative of title of the parties to the
property in question. For that purpose, the parties are
required to approach the civil court and obtain
appropriate decrees or orders, with regard to their
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status qua the properties concerned. In the present
case, the respondent nos. 1 and 2 had approached the
Civil Court by instituting civil suit no.238 of 2000.
The Civil Court did not accept the claim of the
respondent nos. 1 and 2. The judgment and decree
made by the Civil Court has attained finality, since
even the second appeal against the same came to be
dismissed. The Additional Collector had the benefit of
a decree of the Civil Court dated 31 March 2001 and
the Additional Collector correctly applied the same
and restored the mutation entry no. 1568. The
Additional Commissioner, though had the benefit of
the judgment and decree dated 31 March 2001 made
by the Civil Court and judgment and decree dated
11October 2004 as made by the Appellate Court,
chose to misread or misinterpret the same. On the
said basis, the Additional Commissioner, has reversed
the Additional Collector. The reversal is patently
incorrect and borders upon perversity. The Additional
Commissioner was not at all justified in observing that
the Additional Collector should have directed the
petitioners to approach the Civil Court with regard to
the validity of the sale deed dated 20 April 1960 or
the genuineness of the vendor Gana Genu More. This
was not at all necessary in the present case,
particularly in the light of categoric findings recorded
in the judgment and decrees of the Civil Courts.
Thirdly, the Additional Commissioner was not at all
justified in observing that the Civil Courts decrees do
not state that the petitioners are not in possession of
half portion of the suit property. Such observation,
has possibly been made, without adverting to the
judgment and decrees of the civil courts, which have
since attained finality.
26. A conjoint reading of the aforesaid observations, in my view,
militates against the submission sought to be canvassed on behalf of
respondent Nos. 3 to 10. Undoubtedly, this Court was dealing with
the controversy in respect of certification of mutation entry
pertaining to survey No. 233/1. However, the facts that by mutation
entry 1802, the area of survey No. 233/1 was reduced to 7 Acre and
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21 R from 11 Acre and 11.5 R, as originally certified under mutation
entry No. 1568, and that was at the heart of the controversy, can
not be lost sight of. It is imperative to note that the effect of setting
aside of the order of Additional Commissioner impugned in the Writ
Petition No. 9127 of 2005 by this Court was two-fold. One, setting
aside of mutation entry No. 1802. Two, restoration of mutation
entry No. 1568 whereby an area admeasuring 11 Acre and 11 R was
mutated in the name of predecessor in title of the petitioners
pursuant to a registered Sale Deed. To constrict the determination
in Writ Petition No. 9127 of 2005 would be to miss the wood for the
trees and be oblivious to the obvious i.e. the controversy over which
the parties have been litigating for decades.
27. Converselly, if the impugned order is sustained the parties
would be brought to the same stage, as it obtained, on the day
mutation entry No. 1802 was certified and, resultantly, the entire
proceedings in the intervening period and the outcome thereof
would be rendered nugatory. It is this consequence which persuades
the Court to hold that this case presents an extraordinary situation
where this Court would be justified in exercising the writ
jurisdiction despite the existence of a statutory remedy, lest the
public policy of bringing about a finality to litigation would be a
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casualty. The reasons are not far to seek.
28. A registered instrument, whereunder land has been
conveyed, with sufficient clarity as to its identity, stands. The
challenge to the validity of the registered instrument has been
negatived up to this Court. The record of mutation entry No. 1802
whereby the area of survey No. 233/1 was sought to be curtailed
has not been forthcoming. A challenge to said mutation entry No.
1802 has been upheld by this Court and it was eventually set aside.
Mutation entry No. 1568 stands restored in full measure.
29. In such a situation, to countenance a challenge on the premise
that the subject matter of dispute of all these proceeding was
survey No. 233/1 only, would be to perpetuate an illegality by
allowing the technicalities to score a march over the substantive
justice.
30. If the respondent Nos. 3 to 10 still claim title over a portion of
the land, which the petitioners claim, to have been sold to their
predecessor in title, under the registered Sale Deed dated 20th April,
1960 their remedies are before the Civil Court and not before the
authorities under the Code, 1966. Needless to clarify that in the
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event such proceeding is instituted, it deserves determination on its
own merits and in accordance with law.
31. For the foregoing reasons, the petition deserves to be allowed.
Hence, the following order.
ORDER
1] The petition stands allowed.
2] The impugned order stands quashed and set aside.
3] Mutation Entry No. 8744, as certified pursuant to the order of
this Court in Writ Petition No.9127 of 2005, stands restored.
4] The respondent Nos. 3 to 10 are at liberty to work out their
remedies as available in law before the Civil Court, if they choose to.
5] By way of abundant caution it is clarified that aforesaid
observations are confined to the determination of the legality,
propriety and correctness of the impugned order and in the event
respondent Nos. 3 to 10 institute any proceeding before the Civil
Court, such proceeding be decided on its own merits and in
accordance with law without being influenced by any of the
observations made hereinabove. All contentions of all the parties
are expressly kept open for consideration in such proceeding, if
instituted.
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6] Rule made absolute to the aforesaid extent.
7] In the circumstances, there shall be no order as to costs.
8] In view of the above, the Interim Application(s), stand(s)
disposed.
(N. J. JAMADAR, J.)
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