Bombay High Court
Smt Prabhavati Jagdish Patil Thr. Poa ... vs Smt. Bhimabai Shankar Thakur And Ors. on 12 November, 2025
2025:BHC-AS:48714
Neeta Sawant 904-WP-2444-2020(1).docx&GROUP-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2444 OF 2020
Alongwith
APPEAL FROM ORDER (ST.) NO. 5879 OF 2020
WITH
INTERIM APPLICATION (ST.) NO. 6164 OF 2024
WITH
INTERIM APPLICATION (ST.) NO. 97228 OF 2020
WITH
INTERIM APPLICATION (ST.) NO. 97226 OF 2020
WITH
INTERIM APPLICATION NO. 3728 OF 2020
Alongwith
WRIT PETITION NO. 1447 OF 2024
WITH
INTERIM APPLICATION NO. 7157 OF 2024
Smt. Prabhavati Jagdish Patil,
through CA Ravindra Jagdish Patil ....Petitioner
: Versus :
Smt. Bhimabai Shankar Thakur
and Ors. ....Respondents
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Mr. Chandrakant Joshi with Mr. A.C. Joshi, for the Petitioner/Appellant.
Mr. Kailas S. Dewal with Mr. Yash Dewal, for Respondent No.1 in WP-
2444-2020, legal heirs of Respondent Nos.1 and 4 in WP-1447-2024
and for Respondent No. 4 in AOST-5879-2020
Mr. Gautam Jain i/b Mr. M.J. Bhatt for Respondent Nos.5 to 7 in AOST-
5879-2020 and Respondent No.6 in WP-1447-2024.
Ms. Sulbha D. Chipade AGP for Respondent State in WP-2444-2020.
CORAM : SANDEEP V. MARNE, J.
DATED : 12 NOVEMBER 2025.
Oral Order:
1) The challenge in the two Writ Petitions and the Appeal from
Order are as under :
WRIT PETITION NO. 2444 OF 2020 :
2) In this Writ Petition, order passed by the Hon'ble Minister
(Revenue) dated 27 August 2014 has been challenged. By that order, the
Hon'ble Minister has set aside the order passed by the Additional
Commissioner dated 8 May 2014 and Mutation Entry No.614.
WRIT PETITION NO. 1447 OF 2024 :
3) In this Writ Petition, Petitioner has challenged order dated 14
February 2022 rejecting the prayer for impleadment of State of
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Maharashtra, Thane Municipal Corporation, Collector-Thane and Mr.
Mohan Rane-office bearer of Om Sai Vinayak (Vidhan Mandal Officer
Employees)Co-op. Hsg. Soc. Ltd. as parties to the Suit. Petitioner has also
challenged order dated 28 April 2022 by which the application seeking
clarification of order dated 14 February 2022 has been rejected.
APPEAL FROM ORDER (ST.) NO. 5879 OF 2020 :
4) In this Appeal filed under the provisions of Order XLIII Rule
1 of the Civil Procedure Code, 1908 (the Code) Appellant has challenged
order dated 27 July 2020 passed by the Trial Court dismissing the
Application for temporary injunction at Exhibit-98 filed in Regular Civil
Suit No. 524/2007.
5) By administrative order dated 21 November 2022 passed by
the Hon'ble Chief Justice, the two Writ Petitions and the Appeal from
Order are directed to be heard by Court having assignment to decide Writ
Petitions arising out of orders passed by the Civil Courts.
6) It would be necessary to make a very brief reference to the
factual background in which the two Writ Petitions and Appeal from
Order arise. The Petitioner in two Writ Petitions, who is also the Appellant
in the Appeal from Order, has instituted Regular Civil Suit No. 524/2007
in the Court of Civil Judge Senior Division, Thane. Her case as pleaded in
the plaint is that one Mahadev Sitaram Thakur was the owner of five
agricultural land described in Schedule-A. It is claimed that he was holding
four agricultural lands mentioned in Schedule-B as a protected tenant. The
four agricultural lands described in Schedule-C were owned by one
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Jankibai Khandya. Bhau Govind Thakur was the owner in respect of the
lands described in Schedule-D. Plaintiff claims that after the death of
Jankibai Khandya, her estate was succeeded by Mahadev Sitaram Thakur,
Bhagibai Bhau Thakur and Sitaram Kamlya. Mahadev Sitaram Thakur
expired 66 years ago leaving behind three sons, Dattu Mahadev Thakur,
Bhaskar Mahadev Thakur and Tukaram Mahadev Thakur. Dattu
Mahadev Thakur was survived by his daughter-Bhimabai Thakur
(Defendant No.1). Tukaram Thakur died unmarried, issueless and
intestate. Bhaskar Thakur was survived by one daughter-Charibai. Plaintiff
claims that she is the daughter of Charibai and that Mahadev Sitaram
Thakur was her maternal great-grandfather. Plaintiff accordingly claims
one-half share in the suit properties. Plaintiff issued notices dated 17 April
2007 and 8 May 2007 calling upon Defendant No.1-Bhimabai Thakur to
effect partition and allot her the share in the suit properties. By reply dated
15 May 2007, Bhimabai Thakur denied the claim of the Plaintiff.
Accordingly, the Plaintiff, through her Constituted Attorney, has instituted
Regular Civil Suit No. 524/2007 in the Court of Civil Judge Senior
Division, Thane for partition and separate possession.
7) It appears that the suit was decreed ex-parte on 8 April 2009.
Consequent to the decree passed in Regular Civil Suit No. 524/2007,
Plaintiff filed an Application before the Revenue Authorities for mutation
of her name in respect of one-half share in the suit properties. Based on ex-
parte decree and the Application preferred by the Plaintiff, Mutation Entry
No. 614 was certified mutating her name in respect of one-half share in the
suit properties. Defendant No.1 filed Misc. Application No. 374/2009
under the provisions of Order IX Rule 13 of the Code for setting aside ex-
parte decree. During pendency of the Misc. Application, Defendant No.1
filed RTS Appeal No. 117/2009 before the SDO challenging Mutation
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Entry No. 614. Taking note of the application filed for setting aside the ex-
parte decree, the SDO allowed the Appeal by order dated 18 March 2011
and set aside Mutation Entry No. 614. Plaintiff filed RTS Appeal No. 208
of 2011 before the Deputy Collector, Thane challenging the order of the
SDO. The Deputy Collector allowed the Appeal of the Plaintiff by order
dated 17 July 2012 and set aside SDO's order dated 18 March 2011. The
Deputy Collector restored Mutation Entry No. 614 subject to the outcome
of Misc. Application No. 374/2009. Defendant No.1 filed Revision before
the Additional Commissioner which was rejected by order dated 8 May
2014. Defendant No.1 thereafter preferred further Revision before the
Hon'ble Minister (Revenue) which has been allowed by order dated 27
August 2014. The Hon'ble Minister has set aside Mutation Entry No. 614.
After delay of 6 long years, the Plaintiff has filed Writ Petition No.
2444/2020 challenging the order dated 27 August 2014 passed by the
Hon'ble Minister.
8) In the meantime, Misc. Application No. 374/2009 preferred
by Defendant No.1-Bhimabai came to be allowed by the Trial Court by
order dated 15 February 2016 and ex-parte decree dated 8 April 2009 came
to be set aside. Plaintiff filed Civil Revision Application No. 311/2016
challenging the order dated 15 February 2016, which came to be dismissed
by this Court by order dated 7 December 2016. This is how the order
setting aside the ex-parte decree has attained finality. Accordingly, the suit
has proceeded further.
9) It appears that Defendant No.1 sold the land bearing Survey
No.100 Hissa No.26A in favour of Defendant No.4-Vihang Enterprises
(Vihang) during pendency of the Misc. Application. Plaintiff has
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accordingly impleaded Defendant No.4-Vihang to the suit. It appears that
Defendant No.4 undertook construction on land bearing Survey No.100
Hissa No.26A and accordingly the Plaintiff filed application at Exhibit-98
seeking temporary injunction against Defendant No.4-Vihang from
carrying out any construction in the suit property. Initially, ad-interim
injunction was refused by the Trial Court by order dated 24 January 2020
which led to filing of Appeal from Order (St.) No.3204/2020 by the
Plaintiff. By order dated 14 July 2020, this Court directed the Trial Court
Judge to decide the main application for temporary injunction.
Accordingly, by order dated 27 July 2020, the Trial Court has proceeded to
reject the application at Exhibit-98 and has refused to grant temporary
injunction in favour of the Plaintiff from injuncting Defendant No.4 from
carrying out construction on land bearing Survey No.100, Hissa No.26A.
The order dated 27 July 2020 is subject matter of challenge in Appeal from
Order (St.) No.5879/2020.
10) In the meantime, Plaintiff realised that land bearing Survey
No.100, Hissa No.26B was handed over by Defendant No.1-Bhimabai to
the Government on which a building for constructing flats for government
employees was proposed. Accordingly, Plaintiff filed applications at
Exhibits-86 and 87 seeking impleadment of the State Government as party
to the Suit. By order dated 26 February 2019, the applications at Exhibits-
86 and 87 came to be rejected holding that the State Government was not a
necessary party to the suit for partition. Plaintiff apparently did not
challenge the order dated 26 February 2019 before the higher forum.
Instead, Plaintiff was advised to file one more application at Exhibit-141
on 25 September 2020 for joining the State Government, Thane Municipal
Corporation, Collector-Thane and Mohan Rane, office bearer of Om Sai
Vinayak (Vidhan Mandal Officer CHSL) as parties to the Suit. By referring
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to the order passed on 26 February 2019, the applications at Exhibits-86
and 87, the Trial Court proceeded to reject the application at Exhibit-141
by order dated 14 February 2022. Plaintiff filed application at Exhibit-185
seeking clarification of the order dated 14 February 2022 which has been
rejected by the Trial Court by order dated 28 April 2022. Orders passed by
the Trial Court on 14 February 2022, and 28 April 2022 are subject matter
of challenge in Writ Petition No.1447 of 2024.
11) It appears that Defendant No.4-Vihang created further rights
in land bearing Survey No. 100, Hissa No.26A in favour of JVM Spaces,
who actually constructed the building(s) on the land. Plaintiff has
impleaded JVM Spaces as party Defendants to the suit.
12) I have heard Mr. Joshi, the learned counsel appearing for the
Petitioner in the two Writ Petitions and for the Appellant in Appeal from
Order. He would submit that the State Government is a necessary party to
the Suit as land bearing Survey No.100, Hissa No.26B has been
erroneously handed over by Defendant No.1-Bhimabai ignoring the
position that the Plaintiff also has one-half share in the said land. That
unauthorized construction is being carried out on the said portion of the
land without the consent of the Plaintiff. He would further submit that
Defendant No.1 has committed fraud on the Government Authorities
while handing over land bearing Survey No.100, Hissa No.26B by filing a
false Affidavit. So far as prayer for impleadment of State Government,
Municipal Corporation, Collector-Thane and office bearer of the Society
etc. are concerned, Mr. Joshi would submit that mere rejection of earlier
applications at Exhibits-86 and 87 cannot be a ground for the purpose of
rejecting subsequent application at Exhibit-141. That the principle of res-
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judicata does not apply when Defendant No.1 has committed fraud. He
would also rely upon judgment of this Court in Haroon Rashid Nizamuddin
Umatiya Versus. Jivatlal Putapshi1 in support of his contention that
composite suit is maintainable against government authorities in respect of
their illegal actions and against private persons for partition.
13) So far as land bearing Survey No.100, Hissa No.26A is
concerned, he would submit that Defendant No.1 has illegally sold the said
portion of land in favour of Defendant No.4 who has created further rights
in the said land in favour of JVM Spaces who is now impleaded as
Defendant Nos.47 to 49 in the Suit. He would further submit that neither
Vihang nor JVM Spaces have any right to carry out any construction in
land bearing Survey No.100, Hissa No.26A. That in the development
agreement executed in favour of Vihang, Defendant No.1 herself has
admitted that Plaintiff has share in the development agreement. Mr. Joshi
would further submit that that there are ample documents on record to
indicate that Plaintiff has a share in the suit properties. That Defendant
No.1 is illegally dealing with the suit property during pendency of the suit
and third party rights are being created. That therefore the Trial Court
Judge ought to have granted injunction to restrain the Defendants from
carrying out construction or creating third party rights in the suit property.
He would rely upon judgment of the Apex Court in State of Himachal
Pradesh Versus. Keshav Ram2 in support of his contention that revenue
entries do not create title.
14) So far as Writ Petition No. 2444/2020 is concerned, Mr. Joshi
would submit that the Minister, Revenue has erred in setting aside
1 2003 (4) BCR 346
2 1996 (7) SC 450
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Mutation Entry No.614 ignoring the position that Plaintiff has one-half
share in the suit properties. That Mutation Entry was certified by the
Revenue Authorities after being fully satisfied about share of Plaintiff in
the suit properties. That mere filing of Misc. Application for setting aside
ex-parte decree could not have been a reason for setting aside Mutation
Entry No.614.
15) On above broad submissions, Mr. Joshi would pray for setting
aside the impugned orders challenged in the two Writ Petitions and
Appeal from Order.
16) Mr. Dewal, the learned counsel appearing for legal heirs of
Defendant No.1-Bhimabai and for Defendant No.4-Vihang would oppose
the Writ Petitions and Appeal from Order. He would submit that
Mutation Entry No.614 was certified only on account of passing of ex-
parte decree. Now that ex-parte decree is set aside on 15 February 2016
and Civil Revision Application challenging the said order is rejected on 7
December 2016, Mutation Entry No.614 cannot be allowed to survive. So
far as Petitioner's prayer for impleadment of Government and other
Authorities are concerned, Mr. Dewal would submit that Plaintiff did not
challenge the order dated 26 February 2019 passed on applications at
Exhibits-86 and 87 and could not have filed a fresh application for the
same purpose. So far as order passed by the Trial Court on 27 July 2020
refusing temporary injunction is concerned, Mr. Dewal would submit that
the Appeal from Order is now rendered infructuous in view of the fact that
construction of the building is already complete, Occupancy Certificate is
issued and Co-operative Society of flat purchasers is formed. Mr. Dewal
would also place on record copy of order dated 1 October 2020 disposing
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of Writ Petition filed by the Plaintiff challenging Commencement
Certificate dated 27 September 2018.
17) Mr. Jain, the Learned counsel appearing for JVM Spaces-
Defendant Nos.47 to 49 would also oppose the Petitions and Appeal from
order adopting the submissions of Mr. Dewal. He would place on record
copy of Occupancy Certificate dated 15 October 2020 issued by the TMC.
18) I have considered the rival submissions canvassed by the
learned counsel appearing for the parties.
Writ Petition No. 2444/2020:
19) In this Petition, challenge is to the order dated 27 August 2014
passed by the Hon'ble Minister. It must be observed at the very outset that
the Writ Petition suffers from serious delay and laches. The petition
appears to have been filed on 9 April 2019 challenging the order dated 27
August 2014. The petition therefore deserves dismissal only on the ground
of delay and laches.
20) However, even if the aspect of delay and laches is
momentarily ignored, I do not find any serious error in the order passed by
the Hon'ble Minister, Revenue particularly on account of the events that
occurred subsequently. Mutation Entry No.614 was certified only on
account of passing of ex-parte decree dated 8 April 2009 in Regular Civil
Suit No.524/2007. Perusal of Mutation Entry No.614 would indicate that
no other reason is assigned for certification of the same. The ex-parte
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decree has subsequently been set aside by order dated 15 February 2016.
Civil Revision Application No.311/2016 filed by the Plaintiff has been
dismissed by this Court by order dated 7 December 2016. Thus, the
underlying the reason for which Mutation Entry No.614 was certified, no
longer exists. In that view of the matter, there is no warrant for interference
in the order passed by the Hon'ble Minister on 27 August 2014. Writ
Petition No. 2444/2020 accordingly deserves dismissal.
Writ Petition No.1447/2024 :
21) By this Petition, the Petitioner has challenged order dated 14
February 2022 passed on application at Exhibit-141 filed seeking
impleadment of State of Maharashtra, Thane Municipal Corporation,
Collector-Thane and Mohan Rane office bearer of Om Sai Vinayak
(Vidhan Mandal Officer Employees) Co-op. Hsg. Soc. Ltd. as party
Defendants to the Suit. It appears that the reason for impleadment of those
officials is essentially the act on the part of the Defendant No.1-Bhimabai
in handing over the land bearing Survey No.100, Hissa No.26B to the
State Government. The said land was apparently reserved. The land is
utilised for the purpose of construction of houses for government
employees. Plaintiff complains that since she has 50% share in the land so
handed over to the State Government, the act of handing over of said
portion of land or the activity of carrying out any construction thereon is
illegal. It is because of this reason that Plaintiff desired to implead State
Government, Thane Municipal Corporation and officer bearer of the
Society as party Defendants to the Suit. It appears that a similar attempt
was earlier made by the Plaintiff by filing applications at Exhibits-86 and
87 which came to be rejected by order dated 26 February 2019. Plaintiff
did not challenge the said order dated 26 February 2019 and the same has
attained finality. In that view of the mater, Plaintiff could not have filed
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one more application for impleadment of State Government at Exhibit-
141. I therefore do not find any serious error in the order dated 14
February 2022 rejecting the application at Exhibit-141.
22) The second order under challenge in Writ Petition No.1447 of
2024 is passed on 28 April 2022 by which application at Exhibit-185
seeking clarification of order dated 14 February 2022 has been rejected.
Since I have already upheld the order dated 14 February 2022, it is not
necessary to go into the correctness of reasons recorded while passing
order dated 28 April 2022.
23) Even otherwise, it appears that the suit is filed seeking
partition of numerous properties. The land bearing Survey No.100, Hissa
No.26B is only a small portion of several properties in respect of which
partition is sought. If the land was indeed reserved and has been handed
over to the State Government, some compensation in respect thereof
would be payable. It would be open for the Plaintiff to claim her share in
the compensation, if so advised. Alternatively, if Plaintiff succeeds in the
Suit, the land bearing Survey No.100, Hissa No.26B can be allotted to the
share of Defendant No.1-Bhimabai. I therefore do not find any reason why
the State Government and other entities need to be impleaded as party
Defendants to the Suit. They have no role to play in partition dispute
between Plaintiff and Defendant No. 1. Their entry in the suit would create
complications in the Suit, As of now, there are already 49 Defendants to
the Suit, and I do not see any reason why more Defendants need to be
added to the suit. It has been 18 long years that the Suit is pending, which
has not progressed even till the stage of framing Issues. I therefore do not
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find any valid reason to entertain Writ Petition No.1447/2024 which also
deserves dismissal.
APPEAL FROM ORDER (ST.) NO. 5879 OF 2020
24) In this Appeal, Plaintiff has challenged order dated 27 July
2020 passed by the Trial Court rejecting the application at Exhibit-98 and
refusing to grant temporary injunction to restrain Defendant No.4-Vihang
from carrying out construction on land bearing Survey No.100, Hissa
No.26A. As observed above, Defendant No.1 has granted development
rights in respect of the land bearing Survey No.100, Hissa No.26A in
favour of Defendant No.4-Vihang who in turn has granted rights in favour
of JVM Spaces-Defendant Nos.47 to 49.
25) The Trial Court has conducted prima-facie enquiry into the
claim of 50% share of the Plaintiff in the suit land. After conduct of such
prima-facie enquiry, the Trial Court has held in para-28 of the order as
under:
28. From the above discussion, this Court concludes that the plaintiff
has prima facie failed established that her maternal great-grandfather
Mahadev Sitaram Thakur, succeeded Jankibai after her death and
hence plaintiff is a co-owner and possessor of the impugned land in
survey no 100/26. The plaintiffs' entitlement to a share in property of
maternal great-grandfather is a triable issue regarding which no
conclusion could be recorded at this stage. From the above pleadings
and documents regarding creation of third party interest in favour of
M/s JVM space, the present application seeking injunction against
defendant no.4, is even otherwise infructuous.
26) Even otherwise, nothing really survives in the Appeal. During
pendency of the present Appeal, the entire construction on the land in
question is complete and Occupancy Certificate is issued by Thane
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Municipal Corporation on 15 October 2020. The flat purchasers have
formed Co-operative Society which is registered on 22 April 2021.
Therefore, no purpose would be served in restraining Defendant No.4 from
carrying out any construction in land bearing Survey No.100 Hissa
No.26A. It also appears that Plaintiff had filed Writ Petition (Lodg.)
No.5500 of 2020 before the Division Bench challenging Commencement
Certificate dated 27 September 2018 which has been dismissed by order
dated 1 October 2020 leaving open remedy for the Plaintiff to prosecute the
Appeal. Review sought in respect of the order dated 1 October 2020 has
also been rejected by order dated 29 January 2021.
27) Considering the above position, in my view, there is no reason
to interfere in the order dated 27 July 2020 and the Appeal must
necessarily fail.
28) Before passing the operative orders in the two petitions and
the Appeal, it must be observed that the suit is pending for the last 18 long
years. The same was decreed ex-parte and the ex-parte decree has been set
aside on 15 February 2016. Even after setting aside of the ex-parte decree,
the suit continues to remain pending for the last 9 long years. If Plaintiff
really has share in the suit properties, it is necessary that she prosecutes the
Suit and gets the same decided in an expeditious manner. It would
therefore be in the interest of the Plaintiff to have the suit decided
expeditiously rather than spending any further time in filing the
applications and getting the same decided.
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29) Accordingly, I proceed to pass the following order :
(i) Writ Petition Nos. 2444 of 2020 and 1447 of 2024 are dismissed.
The pending Interim Application also stands disposed of.
(ii) Appeal from Order (St.) No. 5879 of 2020 is dismissed. All
pending Interim Applications also stand disposed of.
(iii) The Trial Court is requested to expedite hearing of Regular Civil
Suit No. 524/2007 and to make an endeavor to decide the same
as expeditiously as possible.
Digitally
signed by
NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.11.13
19:29:12
+0530
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