Bombay High Court
Ramesh Alidas Chawla And Anr vs Shantilal Zaverchand Jain Ors on 13 December, 2023
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2023:BHC-AS:37299
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1300 OF 2022
1. Ramesh Alidas Chawla
Aged 75 years,
2. Sagar Ramesh Chawla
Aged 35 years
Both adults, Occupation: Business
Having address at 201/202,
Jamuna Darshan, Natakwala Lane,
Borivali (West), Mumbai - 400 092. ...Petitioners
Vs.
1. Shantilal Zaverchand Jain
Proprietor of M/s. Varsha Export
Age-Adult, Occupation: Business
Address- Varsha Building, 13,
Adarsh Society, Ramchandra
Lane Extension, Malad (West),
Mumbai - 400 064
2. Bilal Rasool Patel
Age: Adult, Occupation: Business,
Residing at Kashi-Mira,
Mira Bhayander Road,
Opposite Raees Hotel,
Bhayander (East), District-Thane
3. Additional Commissioner,
Konkan Division
4. Additional Collector,
Thane
5. Sub-Divisional Officer,
Thane
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6. Tehsildar,
Thane
7. The State of Maharashtra
Through Minister for Revenue ....Respondents
...
WITH
INTERIM APPLICATION NO.13183 OF 2023
IN
WRIT PETITION NO.1300 OF 2022
Juber Ayyub Asamdi & Anr. ....Applicants
IN THE MATTER BETWEEN
Ramesh Alidas Chawla & Anr. ....Petitioners
V/S
Shantilal Zaverchand Jain & Ors. ....Respondents
...
Mr. Chandraprakash K. Tripathi for the Petitioners.
Mr. Suryajeet P. Chavan with Ms. Vishakha Shelar i/b M/s. One Legal Bay
LLP for Respondent No.1.
Mr. P.P. Pujari, AGP for the Respondent Nos.3 to 7State.
...
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : DECEMBER 08, 2023.
PRONOUNCED ON : DECEMBER 13, 2023.
JUDGMENT:
1 Rule. Rule is made returnable forthwith. By consent of the learned
Counsels appearing for the parties the Petition is taken for final hearing
and disposal.
2 Petitioners are aggrieved by Order passed by the Sub Divisional
Officer, Thane (SDO) in RTS Appeal No.148 of 2018 filed by Respondent
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No.1 directing removal of their names from revenue records by setting
aside Mutation Entry No.2183. Petitioners' Appeal before the Additional
Collector, Thane, first Revision before the Additional Commissioner
(Konkan) and second Revision before Minister-Revenue, are rejected.
The Orders passed by SDO, Addl. Collector, Addl. Commissioner and
Minster-Revenue are under challenge in the present Petition.
3 Facts of the case are that the land bearing Survey No.152, Hissa
No.2, admeasuring 610 square meters, and Survey No.152, Hissa No.3,
admeasuring 580 square meters, situated at village Ghodbundhar, Taluka
and District Thane (land), is the subject matter of Petition. Petitioners
purchased the land from Respondent No.2-Bilal Rasool Patel by virtue of
registered Deed of Conveyance dated 15 October 2011. On the strength of
the said registered sale deed, names of the Petitioners came to be
mutated to the record of rights of the land vide Mutation Entry No.2183,
certified on 26 February 2012.
4 Respondent No.1 claims that by unregistered sale deed dated 27
April 1995, he purchased the land and that since the sale deed was
unregistered, a declaration was executed and registered on 12 September
2007.
5 Respondent No.1 has instituted a Special Civil Suit No.545 of 2015
against Petitioners and Respondent No.2 in the Court of Civil Judge
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Senior Division, Thane, for a declaration that he is the owner of the land
by virtue of sale deed dated 27 April 1995 and declaration dated 12
September 2007. He has also sought the relief of declaration of Deed of
Conveyance dated 15 October 2011 executed in favour of Petitioners to
be fraudulent, illegal and void. During pendency of the suit, Respondent
No.1 filed RTS Appeal No.148 of 2018 before the Sub Divisional Officer,
Thane, challenging Mutation Entry No.2183 dated 26 February 2012 by
which the names of Petitioners were mutated to the record of the rights
of land. By order dated 15 December 2018 delay in filing the Appeal was
condoned. The Sub Divisional Officer therefore proceeded to pass order
dated 5 February 2019 allowing the Appeal filed by Respondent No.1 and
directed cancellation of Mutation Entry No.2183. Petitioners filed RTS
Appeal No.49 of 2019 before the Additional Collector, Thane which came
to be rejected by Order dated 13 September 2019. Petitioners filed First
Revision before the Additional Commissioner, Konkan, which also came
to be rejected by Order dated 6 March 2020. Petitioners thereafter
preferred Second Revision before the Minister-Revenue, which came to
be rejected by Order dated 31 December 2020. Aggrieved by the Orders
passed by the Sub Divisional Officer, Additional Collector, Additional
Commissioner and Minister-Revenue, Petitioners have filed the present
Petition.
6 Mr. Tripathi, the learned counsel appearing for the Petitioners
would submit that no right, title or interest is created in favour of
Respondent No.1 by virtue of unregistered Sale Deed allegedly executed
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in the year 1995. That the declaration is a unilateral document executed
by Respondent No.1, which cannot have the effect of registering the
unregistered Sale Deed. On the contrary, the Petitioners have purchased
the suit property through registered Conveyance Deed dated 15 October
2011. That Mutation Entry No.2183 was correctly effected by taking a
note of registered Conveyance Deed executed in favour of the Petitioners.
That after execution of registered Conveyance Deed dated 15 October
2011, Petitioners are in continuous undisturbed possession of the land in
question. That the Petitioners have filed Writ Petition No.7695 of 2015
seeking removal of encroachment on the land through Mira Bhayander
Municipal Corporation in which this Court gave various directions to the
Municipal Corporation.
7 Mr. Tripathi would further submit that Respondent No.1 had
earlier filed Regular Civil Suit No.385 of 2009 against the original vendor
which came to be dismissed for want of prosecution. That he has now
instituted Special Civil Suit No.545 of 2015 seeking declaration of
ownership on the basis of unregistered Sale Deed and registered
Declaration. That he has also challenged the Conveyance Deed executed
in favour of the Petitioner. That until the suit is decided right, title and
interest of the Respondent No.1 and in question cannot be established.
That during pendency of the suit, there was no necessity for the SDO to
entertain belated Appeal filed by Respondent No.1 for the purpose of
disturbing the mutation entry effected in the year 2012. That the Orders
passed by the Sub Divisional Officer, Additional Collector, Additional
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Commissioner and Minister-Revenue, suffers from non-application of
mind. That Respondent No.1 made false statements before the Sub
Divisional Officer that he acquired knowledge of effecting of mutation
entry on 11 July 2018 when infact the suit was already instituted by him
in the year 2015 to challenge Petitioners' Conveyance Deed. He would
pray for setting aside the Orders passed by the various authorities.
8 Per contra, Mr. Chavan, the learned counsel appearing for
Respondent No.1 would oppose the Petition and support the Orders
passed by the Revenue Authorities and the State Government. He would
submit that delay in filing the Appeal was already condoned by the Sub
Divisional Officer by order dated 15 December 2018, which has attained
finality and that therefore Petitioners cannot raise the issue of delay.
That Respondent No.1 has acquired right, title and interest in respect of
the land in question by way of a prior document in the form of Sale Deed
and registered Declaration of 2007. That it was the duty of the revenue
authorities to take cognizance of the registered document under Section
154 of the Maharashtra Land Revenue Code (MLR Code) for effecting
mutation entry in the name of Respondent No.1. That since the document
in favour of Respondent No.1 is executed at prior point of time,
subsequently executed Conveyance Deed in favour of the Petitioners
would not have the effect of conferring any title on them.
9 Mr. Chavan would further submit that this Court need not intervene
in the concurring findings recorded by three Revenue Authorities as well
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as by the State Government after taking into consideration the entire
facts of the case. That the rights and entitlements between the parties
would ultimately be decided by the Civil Court and therefore till such
determination, the Orders passed by the Revenue Authorities and State
Government are required to be sustained.
10 I have considered the submissions canvassed by the learned
counsel appearing for the rival parties and I have also perused the
records of the case.
11 Petitioners and Respondent No.1 claim right, title and interest in
the land in question on the strength of documents executed in their
favour. So far as the Petitioners are concerned, title in the property is
claimed on the strength of registered Conveyance Deed dated 15 October
2011 executed by Respondent No.2-Bilal Rasool Patel. On the strength of
said registered Conveyance Deed, Mutation Entry No.2183 was effected
mutating the names of Petitioners to the record of rights of the land. On
the contrary, Respondent No.1 claims that the land was sold to him vide
unregistered Sale Deed dated 27 April 1995 executed by Premlata Mehra,
Rajkumar Mehra and Manoj Mehra with the consent of Mukesh Mehra
and Chetan Mehra. Respondent No.1 claims that he was put in possession
of the land and he was occupying the warehouse/shed constructed
thereon and paying taxes to Mira Bhayander Municipal Corporation. It is
further claimed by Respondent No.1 that Bilal Rasool Patel was
disturbing possession of Respondent No.1, on account of which
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Respondent No.1 filed Regular Civil Suit No.385 of 2009 before Civil
Judge Junior Division, Thane, against Respondent No.2. He further claims
that Respondent No.2 apologized for his conduct and therefore
Respondent No.1 did not prosecute the suit further which came to be
dismissed for default. It appears that Respondent No.1 has executed a
unilateral Declaration stating that he has purchased the land in question.
The said Declaration came to be registered on 12 September 2007. It is
on the strength of the unregistered Deed dated 27 April 1995 and
registered Declaration dated 12 September 2007 that Respondent No.1
claims right, title and interest in the land.
12 Respondent No.1 has instituted Special Civil Suit No.545 of 2015
with following prayers:
"31. The plaintiff therefore prays:
(a) That this Hon'ble be pleased to declare that the Sale deed dated
27/04/1995 r/w. declaration dated 12/09/2007 duly registered with
registrar of assurance under the Indian Registration Act is a valid and having
binding effect upon the defendants, their servants, agents or any person
claiming through them in respect of the suit property described as Survey
No.152, Hissa No.2, adm area 728 Sq. Yd, equivalent to 807 Sq. Mtr and
bearing Survey No.152. Hissa No.3 adm. area 885 Sq Yd., equivalent to 581 Sq.
Mtrs aggregating to 1401 Sq. yds equivalent to 1188 Sq. Mtrs in the
Registration District and Sub District Thane, along with shed adm. 101'.5 x
54'.8 bearing House No.393 on plot being Survey No.152 Hissa No.2 & 3.
(b) The this Hon'ble Court be pleased to declare deed of conveyance dated
15/10/2011 executed by the defendant no.3 in favour of the defendant no.1
& 2 is a fraudulent, illegal, shame & bogus document in respect of the suit
property i.e. Survey No.152, Hissa No.2, adm area 728 Sq. Yd, equivalent to
807 Sq. Mtr and bearing Survey No.152. Hissa No.3 adm. area 885 Sq Yd.,
equivalent to 581 Sq. Mtrs aggregating to 1401 Sq. yds equivalent to 1188 Sq.
Mtrs in the Registration District and Sub District Thane, along with shed adm.
101'.5 x 54'.8 bearing House No. 393 on plot being Survey No. 152 Hissa No.2
& 3 and the same be cancelled and quashed.
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(c) That this Hon'ble Court by its mandatory order & direction direct the
defendants, their servants, agents or any person claiming through them to
remove themselves from the suit property i.e. Survey No.152, Hissa No.2, adm
area 728 Sq. Yd, equivalent to 807 Sq. Mtr and bearing Survey No.152. Hissa
No.3 adm. area 885 Sq Yd., equivalent to 581 Sq. Mtrs aggregating to 1401 Sq.
yds equivalent to 1188 Sq. Mtrs in the Registration District and Sub District
Thane, along with shed adm. 101'.5 x 54'.8 bearing House No.393 on plot
being Survey No. 152 Hissa No.2 & 3.
(d) That pending the hearing final disposal of the suit the Registrar/ and
or any officer of this Hon'ble Court be appointed as a Court Receiver of the
suit property i.e. Survey No. 152, Hissa No. 2, adm area 728 Sq. Yd, equivalent
to 807 Sq. Mtr and bearing Survey No. 152. Hissa No. 3 adm. area 885 Sq Yd.,
equivalent to 581 Sq. Mtrs aggregating to 1401 Sq. yds equivalent to 1188 Sq.
Mtrs in the Registration District and Sub District Thane, along with shed adm.
101'.5 x 54'.8 bearing House No.393 on plot being Survey No.152 Hissa No. 2
& 3 with all power as contemplate under Order XL of the Code of Civil
Procedure, 1908 and this Plaintiff be appointed as an agent of the Court
Receiver with further direction to remove the defendants from the aforesaid
suit property and put the Plaintiff in possession of the suit property.
(e) That pending the hearing final disposal of the suit the defendants,
their servants, agents or any person claiming through them be restrained by
an order and injunction of this Hon'ble Court from creating third party
interest in any manner and/or to enter into any agreement for development
purpose in respect of suit property i.e. Survey No.152, Hissa No.2, adm area
728 Sq. Yd, equivalent to 807 Sq. Mtr and bearing Survey No.152. Hissa No.3
adm. area 885 Sq Yd., equivalent to 581 Sq. Mtrs aggregating to 1401 Sq. yds
equivalent to 1188 Sq. Mtrs in the Registration District and Sub District
Thane, along with shed adm. 101'.5 x 54'.8 bearing House No.393 on plot
being Survey No.152 Hissa No.2 & 3.
(f) That pending the hearing final disposal of the Suit the defendants be
ordered and directed to pay compensation in terms of measne profit @ 80/-
per sq. ft per month till the decision of the suit and/or pending the suit the
defendants be ordered and directed to pay measne profit till recovery of
possession.
(g) That ad-interim and interim relief in terms of prayer clause (d), (e) &
(f) be granted.
(h) That the cost of the suit be provided for.
(i) That such other and further reliefs as this Hon'ble court may deem fit
and proper under the fact and Circumstances of the case be granted.'
13 Thus, the claim of Respondent No.1 about his title in the land
would be decided by the Civil Court in Special Civil Suit No.545 of 2015.
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The only issue is whether the Respondent-Authorities ought to have
disturbed Mutation Entry No.2183 certified on 26 February 2012 during
pendency of proceedings before the Civil Court. Here the conduct of
Respondent No.1 in filing RTS Appeal No.148 of 2018 needs to be
considered. He filed the said Appeal on 3 August 2018, by which time he
had already instituted a Special Civil Suit No.545 of 2015. He had
acquired the knowledge of Conveyance Deed executed in favour of the
Petitioners before filing of the suit. He had notice of possession of the
land by Petitioners on 15 February 2014. He admits in the suit that he
was dispossessed from the suit property on 15 August 2015. However
when Respondent No.1 filed RTS Appeal No.148 of 2018 he made a false
representation before the Sub Divisional Officer that he had never
applied for 7/12 extracts and that for the first time he acquired
knowledge upon Mutation Entry No.2183 on 11 July 2018. It is highly
unbelievable that Respondent No.1, who had acquired knowledge about
execution of Deed of Conveyance before 2015 and had noticed
possession by Petitioners in the year 2014 and was admittedly
dispossessed in the year 2015, was unaware of certification of Mutation
Entry No.2183 till 2018.
14 Also of relevance is the fact that Respondent No. 1 was pursuing
Special Civil Suit No.545 of 2015 and had sought interim injunction
therein. Before he could establish his title, why he made an attempt to
dislodge the names of the Petitioners from revenue records by filing RTS
Appeal No.148 of 2018 on 3 August 2018 is difficult to comprehend. It
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must be noted here that the name of Respondent No.1 was never
mutated to the record of rights of the land. Therefore, why he wanted
names of the Petitioners removed from the revenue records by filing
Appeal in the year 2018 is perplexing. In my view, Respondent No.1 could
not have approached revenue authorities seeking deletion of names of
Petitioners from revenue records when his suit seeking title to the
properties was pending since the year 2015. This is more so because
name of Respondent No. 1 was never reflected in revenue records nor is
reflected after deletion of names of Petitioners.
15. It must also be observed here that SDO has noticed the factum of
pendency of the suit filed by Respondent No.1 but has erroneously
proceeded to entertain the application filed by Respondent No.1. The
SDO has failed to appreciate that by seeking deletion of names of
Petitioners from revenue records, the name of Respondent No.1 was not
to be mutated. The SDO's order dated 5 February 2019 merely directs
removal of the names of Petitioners by setting aside Mutation Entry
no.2183. The said order does not direct mutation of name of Respondent
No.1.
16 Perusal of the order passed by SDO would indicate that the main
reason for setting aside Mutation Entry No.2183 is execution of
documents in favour of Respondent No.1 at prior point of time than the
Petitioners. This is the exact issue which is pending before the Civil Court
and therefore SDO ought to have steered clear of the controversy pending
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before Civil Court. SDO has also recorded finding that there was illegality
in certification of earlier Mutation Entries by which the name of
Respondent No.2-Bilal Rasool Patel was recorded and that therefore
Mutation Entry No.2183 based on document executed by Bilal Rasool
Patel is erroneous. In my view, right, title and interest in the land cannot
be decided merely on the basis of revenue entries especially when civil
suit is pending between the parties.
17 The Additional Collector, Additional Commissioner and Minister-
Revenue, have failed to notice that the Revenue Authorities were
essentially determining the very same issue which is pending before the
Civil Court, which will ultimately decide various issues as to whether the
Respondent No.1 has acquired title in the suit property by virtue of
unregistered document in respect of which unilateral Declaration is
registered in the year 2007. Till such issues are determined, the revenue
authorities ought not to have gone into the issue of supremacy of
documents executed in favour of Petitioners and Respondent No.1.
18 In ordinary course, this Court would not interfere in concurrent
findings recorded by four revenue authorities including the State
Government. However, the manner in which Respondent No.1 filed RTS
Appeal No.148 of 2018 seeking removal of names of Petitioners from
revenue records during pendency of the suit filed by him coupled with
non-mutation of name of Respondent No. 1 consequent to deletion of
names of Petitioners, would be a fit ground for this Court to interfere in
the Orders passed by the revenue authorities.
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19 Reliance by Mr. Chavan on judgment of the Apex Court in Suraj
Bhan and others vs. Financial Commissioner & others, (2007) 6 SCC 186,
far from assisting his case, actually militates against him. In paragraph 9
of the judgment, the Apex Court has held as under:
9. There is an additional reason as to why we need not interfere with that order
under Article 136 of the Constitution. It is well settled that an entry in revenue
records does not confer title on a person whose name appears in record-of-rights. It is
settled law that entries in the revenue records or jamabandi have only "fiscal
purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of
such entries. So far as title to the property is concerned, it can only be decided by a
competent civil court (vide Jattu Ram v. Hakam Singh, (1993) 4 SCC 403 : AIR 1994 SC
1653). As already noted earlier, civil proceedings in regard to genuineness of will are
pending with the High Court of Delhi. In the circumstances, we see no reason to
interfere with the order passed by the High Court in the writ petition.
20 Thus, the revenue authorities must yield to the findings recorded
by Civil Courts. Since the suit between the parties relating to the land is
pending, the revenue authorities ought to have exercised restraint rather
than determining as to whose documents confer better title in respect of
the land.
21 The Writ Petition accordingly succeeds. Order dated 5 February
2019 passed by SDO, Order dated 13 September 2019 passed by
Additional Collector, Order dated 6 March 2020 passed by the Additional
Commissioner and Order dated 31 December 2020 passed by Minister-
Revenue are set aside. The Writ Petition is allowed in above terms. Rule
is made absolute.
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22 In view of the disposal of the Writ Petition, the Interim Application
does not survive and the same is disposed of accordingly.
(SANDEEP V. MARNE, J.)
