Bombay High Court
Navnath Sahebrao Gaikwad vs Bhausaheb Dnyanoba Gaikwad And Ors on 11 March, 2025
2025:BHC-AS:12260
Sonali Mane 31-WP-2801-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2801 OF 2024
Navnath Sahebrao Gaikwad ... Petitioner
Versus
Bhausaheb Dnyanoba Gaikwad and Ors ... Respondents
Mr. Vaibhav R. Gargade for the Petitioner.
Mr. Chaitanya Nikte a/w Prajit Sahane, Ms. Sakshi Thombre,
Mr. R. Kate & Mr. Swapnil Sangale for Respondent No.1.
Mr. P.G. Sawant, AGP for Respondent-State.
CORAM : SANDEEP V. MARNE, J.
DATE : 11 MARCH 2025.
ORAL JUDGMENT:
1) Rule. Rule made returnable forthwith. With the consent
of the learned counsel appearing for parties, the Petition is taken for
hearing and disposal.
2) The Petition challenges Order dated 4 October 2023
passed by the Hon'ble Minister (Revenue) allowing the Revision
Application filed by Respondent No.1 and setting aside the order
dated 13 November 2019 passed by the Additional Commissioner,
Digitally
signed by
Pune Division. The Additional Commissioner had dismissed the
MANE
MANE SONALI
SONALI DILIP
DILIP Date:
2025.03.17
14:42:21
+0530
Revision Application preferred by Respondent No.1 by order dated
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13 November 2019 and had confirmed the order passed by the
Additional Collector, Pune on 16 January 2019. The Additional
Collector, in turn had partly allowed the Appeal preferred by
Respondent No.1, but had refused to set aside the order passed by
Sub Divisional Officer (SDO) dated 5 March 2018, by which
Mutation Entry No. 10384 was directed to be modified and name of
Petitioner was directed to be mutated in respect of land
admeasuring 0H 11.5 R.
3) Facts of the case, in brief, are that Bala Gaikwad had
two sons Rama and Goma. Goma's wife was Anusaya and it is claim
of Anusaya that she had one half share in land bearing Gat No.
1294. Land bearing Gat No.1294 admeasured 23 R. and Anusaya
claimed 50% share therein equivalent to 11.5 R. On the other hand,
the heirs of Rama believed that Anusaya had already filed a suit for
partition and had secured her share in various other lands, which
did not include land bearing Gat No. 1294 and accordingly claimed
100% share in respect of land bearing Gat No. 1294. Under her
belief that she is the owner land admeasuring 11.5 R., Anusaya
executed sale deed dated 22 September 1999 in favour of the
Petitioner. It appears that based on the sale deed dated 22
September 1999, Mutation Entry No. 4555 was attempted to be
effected on 5 January 2000 recording the name of Petitioner in
respect of land admeasuring 11.5 R. purchased vide sale deed dated
22 September 1999. It appears that Circle Officer refused to certify
the said entry by order dated 5 August 2000 on the ground that
name of Anusaya was never mutated to the concerned land. It
appears that cancellation of Mutation Entry No. 4555 was never
questioned by the Petitioner. However, the Petitioner got his name
mutated once again to land admeasuring 11.5 R. on 15 January
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2015 vide Mutation Entry No. 10329. Despite existence of sale deed
dated 22 September 1999 by which Petitioner had purchased land
admeasuring 11.5 R. and despite certification of Mutation Entry No.
10329 on 15 January 2015, Respondent No. 1 took the risk of
entering into sale deed dated 6 April 2015 from the heirs of Rama by
which Respondent No.1 purchased entire Gat No. 1294 admeasuring
23 R. Without canceling Mutation Entry No. 10329, first Mutation
Entry No. 10384 was certified on 7 April 2015 mutating the name of
Respondent No.1 in respect of entire are admeasuring 23 R. of Gat
No. 1294. After mutation of the name of Respondent No.1 vide
Mutation Entry No. 10384 on 7 April 2015, the Circle Officer
proceeded to cancel Mutation Entry No. 10329 in respect of the
Petitioner vide order dated 29 June 2015. Petitioner got aggrieved
by certification of Mutation Entry No. 10384 and filed appeal before
the Sub Divisional Officer under provisions of Section 247 of the
Maharashtra Land Revenue Code, 1966. The SDO proceeded to
allow the Appeal and directed modification of Mutation Entry No.
10384 by directing mutation of name of the Petitioner in respect of
land admeasuring 11.5 R. Though Respondent No. 1 partly
succeeded in his appeal before the Additional Collector vide order
dated 16 January 2019, the Additional Collector did not direct
deletion of name of Petitioner in respect of land bearing Gat No.
1294 but directed Mutation of name of the Petitioner only as a joint
holder. This Divisional Commissioner confirmed the order of the
Additional Collector on 13 November 2019. However, the Hon'ble
Minister has allowed the Revision filed by Respondent No.1 and by
impugned order dated 4 October 2023, has set aside the order
passed by the Divisional Commissioner dated 13 November 2019
and has confirmed the Mutation Entry No. 10384. The order passed
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by the Hon'ble Minister on 4 October 2023 is subject matter of
challenge in the present Petition.
4) I have heard Mr. Gargade, the learned counsel
appearing for the Petitioner and Mr. Nikte the learned counsel
appearing for Respondent No.1. I have gone through the orders
passed by the SDO, Additional Collector, Divisional Commissioner
and the Hon'ble Minister. I have also gone through relevant records
of the case filed alongwith the Petition as well as through the
compilation of documents tendered by Mr. Nikte.
5) In the present case, there appears to be serious dispute
between Anusaya and legal heirs of Rama with regard to share in
land bearing Gat No. 1294. While Anusaya believed that she became
owner of 50% share (11.5 R.) in Gat No.1294, it is the contention of
children of Rama that Anusaya had filed a suit for partition and had
secured shares in other lands, which did not include land bearing
Gat No. 1294. The children of Rama believed that they are the sole
owners in respect of the entire land admeasuring 23 R. at Gat
No.1294. On the basis of her belief of being 50% owner in respect of
land bearing Gat No. 1294, Anusaya executed sale deed dated
22 September 1999 in favour of the Petitioner in respect of land
admeasuring 11.5 R. The children of Rama did not challenge sale
deed dated 22 September 1999 though they firmly believed that
Anusaya did not have any right to execute sale deed dated
22 September 1999. True it is that Petitioner made unsuccessful
attempt of mutation of his name in respect of land admeasuring 11.5
R. through Mutation Entry No. 4555, which was prepared on
5 January 2000, but the Circular Officer refused to certify it vide
decision dated 5 August 2000 on the ground that name of Anusaya
never figured in respect of land bearing Gat No. 1294. Petitioner
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ought to have challenged non-certification of Mutation Entry No.
4555 contemporaneously, which he failed to do. For 15 long years
there was a hiatus, where none of the parties took any steps with
regard to the revenue entries. It is only on 15 January 2015 that the
Petitioner thought of having his name mutated to the revenue
records and accordingly Mutation Entry No. 10329 came to be
certified mutating the name of the Petitioner on the basis of sale
deed dated 22 September 1999 in respect of land admeasuring 11.5
R. in Gat No. 1294.
6) Despite being fully aware of the position that sale deed
dated 22 September 1999 was executed in favour of the Petitioner in
respect of land admeasuring 11.5 R. and that name of the Petitioner
was mutated to the revenue records vide Mutation Entry No. 10329,
Respondent No.1 took a calculated risk of executing sale deed dated
6 April 2015 with the children of Rama, whereby he purchased inter
alia the entire Gat No. 1294 admeasuring 23 R. Respondent No.1
was fully aware that Petitioner had already purchased half portion
of Gat No. 1294 on 22 September 1999 and that his name was
mutated on 15 January 2015 in respect of area of 11.5 R., but still
the Respondent No.1 thought of taking a chance and executed sale
deed in his favour on 6 April 2015, which included inter alia the
land purchased by the Petitioner. Without cancellation of Mutation
Entry No. 10329, the Respondent No. 1 persuaded the Revenue
Authorities to certify Mutation Entry No. 10384 on 7 April 2015 by
which name of the Respondent No.1 was mutated in respect of
entire area of 23 R. of Gat No. 1294. Thus two contradictory
mutation entries continued to survive as on 7 April 2015 whereby
name of Petitioner remained on Revenue records in respect of land
admeasuring 11.5 R. through Mutation Entry No. 10329 whereas
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name of Respondent No.1 also mutated to the very same land
admeasuring 11.5 R. through Mutation Entry No. 10384. This
incongruous situation was sought to be cleared by the Sub
Divisional Officer by canceling Mutation Entry No.10329 vide order
dated 29 June 2015.
7) It is contention of Mr. Nikte that Petitioner never
questioned the decision of the Circle Officer dated 29 June 2015 in
his appeal preferred before the Sub Divisional Officer. However, it is
seen that cancellation of Mutation Entry No. 10329 was nothing but
direct consequence of certification of contradictory Mutation Entry
No. 10384. In the peculiar facts of the present case, I am not inclined
to accept technical objection sought to be raised by Mr. Nikte that
failure to challenge decision dated 29 June 2015 would come in the
way of the Petitioner challenging Mutation Entry No. 10384.
8) In my view, the Hon'ble Minister has completely
misdirected himself while reversing concurrent findings recorded by
the Sub Divisional Officer, Additional Collector and the Divisional
Commissioner. The Hon'ble Minister has assumed jurisdiction of the
Civil Court by entering into the title dispute by recording of finding
that Anusaya did not have title in respect of land admeasuring 11.5
R. This finding relating to title is recorded by the Hon'ble Minister
by considering the decree passed in partition suit and orders passed
in the execution application filed by Anusaya. In my view, the
Hon'ble Minister could not have gone into the issue of title of
Anusaya which got transferred in Petitioner's favour vide sale deed
dated 22 September 1999. While deciding validity of mutation
entries made for fiscal purposes, it was beyond the jurisdiction of the
Hon'ble Minister to enter into title dispute between the parties.
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There is serious jurisdictional error committed by the Hon'ble
Minister warranting exercise of extraordinary jurisdiction by this
Court under Article 227 of the Constitution of India.
9) Respondent No.1 has taken a calculated risk of entering
into sale deed dated 6 April 2015 in his favour with his eyes vide
open to the fact that Petitioner had already purchased land bearing
11.5 R. on 22 September 1999. Without seeking cancellation of sale
deed dated 22 September 1999, it is highly questionable whether
Respondent No. 1 could have executed second sale dated 6 April
2015 in respect of the very same land in his favour. If the
Respondent No. 1 believes that Anusaya did not have title in respect
of land admeasuring 11.5 R. for execution of sale deed dated
22 September 1999 in Petitioner's favour, he will have to file Civil
Suit challenging sale deed dated 22 September 1999. What is
essentially done by Respondent No.1 is to circumvent the
requirement of filing a Civil Suit and he has secured a title in his
favour through the order passed by the Hon'ble Minister. In my
view, therefore the order passed by the Hon'ble Minister is clearly
unsustainable and liable to be set aside. It would however be open
for Respondent No.1 to institute a Civil Suit to challenge the sale
deed dated 22 September 1999 and seek declaration of title in
respect of land admeasuring 11.5 R. purchased by the Petitioner.
Such suit shall be decided on its own merits, without being
influenced, in any manner, by any of the observations made by this
Court in the present order.
10) The Petition succeeds accordingly. Order dated
4 October 2023 passed by the Hon'ble Minister (Revenue) is set
aside and the order passed by the Sub Divisional Officer, Additional
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Collector and the Divisional Commissioner are confirmed. Writ
Petition is allowed in above terms. Rule is made absolute. There
shall be no orders as to costs.
[SANDEEP V. MARNE, J.]
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