Bombay High Court
Kirti Gaurav Builders And Developers ... vs Shri Madhukar Joma Wadekar And Others on 7 October, 2025
2025:BHC-AS:43684
Neeta Sawant CRA 999 OF 2014 FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.999 OF 2014
Kirti Gaurav Builders and Developers Pvt Ltd ....Applicant
: Versus :
Shri Madhukar Joma Wadekar and Ors. ....Respondents
___________________________________________________________
Mr. Prasad K. Dhakephalkar, Senior Advocate with Mr. Kishor Patil, Mr.
Amol Mhatre and Ms. Sonal Dabholkar, for Applicant.
Mr. Saurabh Oka for Respondent No.1.
Mr. Sanjiv Sawant i/b Mr. Abhishek P. Deshmukh, for Respondent Nos.1(ii)
to 1(v).
Ms. Shilpa Talhar, AGP for State-Respondent Nos.2 to 5.
___________________________________________________________
CORAM: SANDEEP V. MARNE, J.
DATED: 7 OCTOBER 2025.
JUDGMENT :
1) Applicants have invoked revisionary jurisdiction of this Court
under Section 115 of the Code of Civil Procedure, 1908 (the Code) for
taking exception to the order dated 7 August 2014 passed by Joint Civil
Judge, Senior Division, Thane, deciding the preliminary issue of
jurisdiction in the affirmative, holding that the Court has jurisdiction to try
and entertain the suit.
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2) Brief facts leading to the filing of the Revision Application are
that Respondent No.1-Late Madhukar Joma Wadekar has instituted
Regular Civil Suit No. 583 of 2003 seeking declaration that sale permission
dated 9 January 1995 issued by the Sub-Divisional Officer, Thane (SDO) is
illegal and unlawful and not binding on the Plaintiff. He has also sought
declaration that permission for Non-Agricultural (NA) use of the land
issued on 20 May 1995 is also illegal. Plaintiff has accordingly sought
declaration in respect of any other permission granted by any other
authority based on sale permission and NA permission as illegal. Plaintiff
has sought a mandatory injunction for cancellation, revocation and
termination of sale permission and NA permission granted by the
Collector and SDO. Plaintiff/Respondent No.1 has pleaded in the Plaint
that Applicant No.1 Kirti Gaurav Builders and Developers Private Limited
have secured ceiling order dated 30 May 1990 based on Power of Attorney
of Plaintiff and others and that the said Ceiling Order is bogus, unlawful,
illegal, false and fabricated. That while securing Ceiling Order, names of
12 bogus persons were inserted and the order was procured by taking into
consideration the shares of 56 persons, 12 out of whom are bogus, who are
not in existence. That bogus Power of Attorney is created in the name of
such 12 bogus persons on the basis of which illegal ceiling permission is
procured by Applicant No.1. It is further case of Plaintiff that Applicant
No.1 made application to SDO for sale permission by reflecting names of
such 12 bogus persons and therefore, sale permission granted on 9 January
1995 is illegal. That NA permission is secured on 20 May 1995 based on
sale permission dated 9 January 1995. Plaintiff has accordingly sought
declaration of sale permission and NA permission to be illegal.
3) Defendants No. 5, 6 and 7 in the suit, who are applicants
herein, filed Application at Exhibit-68 under Order XIV, Rule 2 of the
Code for framing of preliminary issue relating to jurisdiction. The
Application was rejected by the Trial Court by order dated 5 November
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2011. Applicants challenged order dated 5 November 2011 by filing Writ
Petition No. 1360 of 2012. By consent of the parties, order dated 5
November 2011 was set aside directing the Trial Court to frame the issue of
jurisdiction by following the mandate of Order XIV, Rule 2(2) of the Code.
4) Accordingly, the Application at Exhibit-68 was reheard by the
Trial Court. By impugned order dated 7 August 2014, Trial Court
proceeded to frame the issue of jurisdiction and proceeded to decide the
same against the Applicants by holding that the Court has jurisdiction to
entertain, try and decide the suit.
5) Applicants have filed the present Revision Application
challenging the order dated 7 August 2014. By order dated 3 August 2015,
this Court has stayed the proceedings of Regular Civil Suit No. 583 of
2003.
6) Mr. Dhakephalkar, the learned Senior Advocate appearing for
Applicants would submit that the Trial Court has failed to record even a
single reason for answering the preliminary issue of jurisdiction in the
affirmative. He would submit that the learned Trial Judge has merely
recorded submissions of counsel appearing for the parties and has failed to
deal with the same by recording his own findings. That the order be
therefore be set aside for failure to record reasons. Without prejudice, he
would submit that there is an express bar under Section 85 of the
Maharashtra Tenancy and Agricultural Lands Act (Tenancy Act) for
maintaining the Suit challenging the order passed by SDO granting Sale
Permission under Section 43 of the Act. That there is a remedy of filing
Revision against the order passed by SDO granting Sale Permission before
Maharashtra Revenue Tribunal. That therefore civil suit cannot be
maintained challenging sale permission dated 9 January 1995. With regard
to NA permission dated 20 May 1995 issued by the Collector, he would
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submit that there are remedies provided in the Maharashtra Land Revenue
Code (MLRC) and that therefore, Civil Suit cannot be maintained qua NA
permission dated 20 May 1995. He would accordingly pray for setting
aside the impugned order passed by the learned Trial Court and would
pray for dismissal of Suit for want of jurisdiction.
7) Per contra, Mr. Sawant, the learned counsel appearing for
Respondent No.1(ii) to 1(v) would oppose the Revision Application
submitting that the impugned sale permission and NA permission are
outcome of stark fraud played by the Revision Applicants. That it is a well
settled position of law that if an element of fraud is involved in
proceedings, revenue or tenancy authorities do not have jurisdiction to
decide those proceedings. In support, he would rely on the judgment of
Apex Court in Horil vs Keshav & Anr1. He would also rely on judgment of
this court in Mohan Dashrath Kolakhe and Ors. vs Maratha Realty Ventures
Ltd and Ors.2 in support of his contention that cases involving allegations
of collusion and fraud cannot be determined by the authorities under the
Tenancy Act and that bar under provision of Section 85 does not apply in
case involving allegation of fraud. He would submit that in the present
case, the Revision Applicants have relied on bogus and fictitious Power of
Attorney of 12 non-existent persons. That the names of such 12 non-
existent persons are deliberately included in the Power of Attorney for the
purpose of securing benefits under the provision of the Urban Land
(Ceiling and Regulation) Act, 1976 (ULC Act). That tenancy or revenue
authorities cannot decide the issue of fraud in the Power of Attorney. That
the sale permission is not challenged by the Plaintiff alleging any error in
the issuance of the same. That the same is challenged on the ground of
fraud played in securing the same. That therefore the Trial Court has
2012 5 SCC 525
Civil Revision Application No. 498 of 2016 decided on 19 August 2023
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rightly upheld its jurisdiction to entertain the suit. He would pray for
dismissal of Revision Application.
8) Rival contentions of parties now fall for my consideration.
9) The Trial Court has decided the preliminary issue of
jurisdiction against the Revision Applicants and in favour of Respondent
No.1-Plaintiff by the impugned order. The decision of preliminary issue of
jurisdiction is made by the Trial Court under provisions of Order XIV Rule
2 (2) of the Code. Under Sub-rule 2 of Rule 2 of Order 14, the Court is
empowered to deal with the Suit in accordance with an issue related to
jurisdiction of the Court or a bar to the Suit created by any law if it is of
the opinion that the Suit can be disposed of on an issue of law only. Order
XIV Rule 2 of the Code provides thus:
2. Court to pronounce judgment on all issues.--
(1) Notwithstanding that a case may be disposed of on a
preliminary issue, the Court shall, subject to the provisions of sub-rule
(2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit,
and the Court is of opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first if the issue
relates to--
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being
in force,
and for that purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determined, and may deal with
the suit in accordance with the decision on that issue.
10) Plaintiff has instituted Regular Civil Suit No. 583 of 2003
seeking following prayers:
a) It be declared that the sale permission dated 9.1.1995 granted by the
defendant No. 4 vide reference No. ID/VI/TNC/SR 248 mentioned is
illegal and unlawful having no force of law behind the same.
b) It be declared that the NA permission dated 20.5.95 bearing reference No.
revenue/Division 1/t-7/NAP/SR/21/95 is illegal unlawful having no
force of law behind the same.
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c) It be declared that any other permission/s granted by any other
authority/s concerned on the basis of the aforesaid sale and NA
permission granted by defendants 4 and 3 respectively are illegal,
unlawful and having no force of law behind the same.
d) The defendants be restrained by an order of permanent perpetual
mandatory injunction of this hon'ble court to cancel, revoke and
terminate the said sale and NA permission granted by defendants 4 and 3
respectively forthwith as the same are prima-facie illegal and unlawful
having no force of law behind the same.
e) Interim relief in terms of paragraph (d) above.
f) Cost of this suit.
g) Such other and further reliefs to which the plaintiff may be found entitled
to the facts stated hereinabove.
11) Thus, the Suit challenges permission dated 9 January 1995
granted by SDO under provisions of Section 43 of the Tenancy Act.
Section 43 of the Act imposes a restriction on a tenant purchasing land
under Sections 32, 32F, 32I, 32O, 33C or 43-1D for being sold, gifted,
exchanged, mortgaged, leased or assigned without previous sanction of the
Collector. Section 43 of Tenancy Act provides thus:
43. Restriction on transfer of land purchased or sold under this Act.
(1) No land purchased by a tenant under section 32, 32F, 32I, 32O,
33C or 43-1D or sold to any person under section 32P or 64 shall
be transferred by sale, gift, exchange, mortgage, lease or assignment
* * * without the previous sanction of the Collector. Such sanction
shall be given by the Collector in such circumstances, and subject to
such conditions, as may be prescribed by the State Government :
Provided that, no such sanction shall be necessary where the
land is to be mortgaged in favour of Government or a society
registered or deemed to be registered under the Bombay Co-
operative Societies Act, 1925, for raising a loan for effecting any
improvement of such land:
Provided further that, no such previous sanction shall be
necessary for the sale, gift, exchange, mortgage, lease or assignment
of the land in respect of which ten years have elapsed from the date
of purchase or sale of land under the sections mentioned in this
sub-section, subject to the conditions that,--
(a) before selling the land, the seller shall pay a nazarana
equal to forty times the assessment of the land revenue to
the Government;
(b) the purchaser shall be an agriculturist;
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(c) the purchaser shall not hold the land in excess of the
ceiling area permissible under the Maharashtra Agricultural
Lands (Ceiling on Holdings) Act, 1961; and
(d) the provisions of the Bombay Prevention of
Fragmention and Consolidation of Holdings Act, 1947 shall
not be violated.
(2) Any transfer * * * of land in contravention of sub-section (1)
shall be invalid.
12) In the present case, Application dated 29 December 1994 was
submitted on behalf of the tenants for securing sale permission of the land
under Section 43 of the Tenancy Act. Copy of the application dated 29
December 1994 is not on record. However, from the reference to the
Permission order dated 9 January 1995, it appears that the Application was
made and signed by the Plaintiff Madhukar Joma Wadekar / his Power of
Attorney holder. Plaintiff does not dispute that he had signed and executed
the Power of Attorney. His complaint is that the Power of Attorney
includes names of fictitious persons. Be that as it may. If Plaintiff is
aggrieved by sale permission issued under provisions of Section 43 of
Tenancy Act, he has remedy to file revision before the Maharashtra
Revenue Tribunal under provisions of section 76 of the act which provides
thus:
76. Revision
(1) Notwithstanding anything contained in the Bombay Revenue
Tribunal Act, 1939, an application for revision may be made to the
Maharashtra Revenue Tribunal constituted under the said Act
against any order of the Collector on the following grounds only :-
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue
of law; or
(c) that there was a substantial defect in following the
procedure provided by this Act, which has resulted in the
miscarriage of justice.
(2) In deciding applications under this section the Maharashtra
Revenue Tribunal shall follow the procedure which may be
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prescribed by rules made under this Act after consultation with the
Maharashtra Revenue Tribunal.
13) In the present case, the sale permission dated 9 January 1995
has been issued by SDO in exercise of the power of Collector under section
43 of Tenancy Act. Plaintiff thus had the remedy to file Revision under
section 76 of the Tenancy Act. Section 85 of Tenancy Act provides for bar
of jurisdiction of Civil Court to settle, decide or deal with any question
which is required to be settled, decided or dealt with by Agricultural Lands
Tribunal, Collector or Maharashtra Revenue Tribunal in appeal or revision.
Section 85 of Tenancy Act provides thus:
85. Bar of jurisdiction
(1) No Civil Court shall have jurisdiction to settle, decide or deal
with any question (including a question, whether a person is or was
at any time in the past a tenant and whether any such tenant is or
should be deemed to have purchased from his landlord the land
held by him) which is by or under this Act required to be settled,
decided or dealt with by the Mamlatdar or Tribunal, a Manager,
the Collector or the Maharashtra Revenue Tribunal in appeal or
revision or the State Government in exercise of their powers of
control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the
Maharashtra Revenue Tribunal or the State Government made
under this Act shall be questioned in any Civil or Criminal Court.
Explanation.-- For the purposes of this section a Civil Court shall
include a Mamalatdars Court constituted under the Mamlatdars
Courts Act, 1906.
The Sale permission has been granted by SDO in exercise of section
43 of Tenancy Act. The SDO has decided and dealt with the question of
issuance of sale permission under the provisions of Tenancy Act.
Therefore, there is express bar to the jurisdiction of Civil Court under
section 85 of Tenancy Act. In my view therefore, validity of Sale
permission dated 9 January 1995 issued by SDO cannot be called in
question by filing the Civil Suit in the light of bar under section 85 of the
Tenancy Act.
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14) Mr. Sawant has contended that bar under provision of section
85 of Tenancy Act would not apply to the peculiar facts of the present case
on account of allegations of fraud leveled by the Plaintiff in his Suit as
tenancy authorities do not have jurisdiction to rule on the issue of fraud.
Reliance is placed on the judgment of this court in Mohan Dashrath
Kolakhe (supra) in which the plaintiff therein had sought a declaration that
they are bona fide purchasers for value without notice and that the order of
Tahsildar mutating names of defendants therein based on alleged tenancy
rights was illegal. This court observed that the Plaint did not raise any
challenge to the tenancy rights. It is in the light of these facts that this court
held in para 21 and 22 of the judgment as under:
21. The decision in the case of Gulab Lahanu Dorge (supra) clearly
lays down that the Revenue Authority does not get the jurisdiction
to entertain the issue as to declaration of title to the land by virtue
of this proceedings and that it is settled law when the question of
title is raised by the parties, by raising contentions that any transfer
of any land is invalid either in accordance with the provisions of
tenancy Act or the Transfer of Properties Act, 1982, the Civil Court
alone has a jurisdiction to decide the said question. In the decision
of Salim D. Agboatwala (supra), the Apex Court considered the
provisions of Section 85 and 85A of the Tenancy Act. In that case
the relief sought was interalia a declaration that the order of ALT
holding the Defendants therein as deemed purchasers is null and
void and there was direct challenge to the Section 32M certificate.
The Apex Court analysed the provisions of Section 85 and Section
85A of the Tenancy Act and held thus in paragraphs 23 and 24:
"23. If the bar under Section 85(2) was absolute, the Civil
Court would have no option except to dismiss the suit. If the
bar of jurisdiction is absolute, the question of the Civil
Court staying further proceedings in the suit, referring the
issues for the adjudication of the competent authority under
the Act and disposing of the suit after receipt of a decision
from the competent authority, would not arise.
24. The City Civil Court as well as the High Court refused
to follow the procedure prescribed by Section 85-A of the
Act, on the short ground that the same could be invoked
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only in cases where the issues covered by the Act have not
already been settled, decided or dealt with by an authority
competent under the Act to do so. Supporting the view
taken by the Trial Court and the High Court, it is contended
by Mr. Aniruddha Joshi, learned counsel for some of the
contesting respondents that as against the orders passed
under Section 32-G and 32-M, an alternative remedy of
appeal is provided under Clauses (mb) and (n) of Subsection
(1) of Section 74 of the Act. The Collector is the appellate
authority under Section 74. Under Section 76-A, the
Collector even has suo motu power of revision, even in cases
where no appeal has been filed. Section 79 of the Act
prescribes a period of 60 days as the limitation for filing an
appeal or revision. Therefore, it is contended by Mr.
Aniruddha Joshi, learned counsel that a party who suffered
an order from the ALT and who chose not to challenge the
same by way of an appeal or revision for a period of more
than two decades, cannot resurrect his right to avail
statutory remedies, first by filing a suit and then seeking
recourse to Section 85-A. Reliance is placed in this regard by
the learned counsel for the respondent, on the decision of
the Bombay High Court in Vithoba Rama Randive v.
Dhairyasinhrao Bhayasaheb Ghatge."
22. The Apex Court considered the provisions of Section 85(2)
which provides that no order of Mamlatdar or Tribunal etc made
under the Tenancy Act can be called in question in Civil Court and
held that if the bar of jurisdiction is absolute then there is no
question of applicability of Section 85A of Tenancy Act. The Apex
Court also negated the contention of the Respondents therein that
the procedure prescribed by Section 85A can be invoked only in
cases where the issues covered by the Act have not already been
settled. The Apex Court held in the facts of that case that collusion
and fraud are the main planks on which the plaintiffs have built up
their case and cannot be determined by the appellate or revisional
authority under the Act. Applying the law laid down by the Apex
Court to the facts of the present case, the plaintiff in paragraph
no.10 has specifically asserted that the Tahsildar without following
any procedure arbitrarily allowed the application of the defendant
nos.1 to 26. Further in paragraph 14, the plaintiff has asserted that
the order passed in favour of the defendant nos.1 to 26 is totally
illegal, improper and contrary to the provisions under the law and
the order passed by the Tahsildar is totally illegal, improper and
barred by law of limitation. In paragraph 16 (c), it is specifically
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asserted that the defendants have concealed the facts from the
revenue authority and seems to have obtained certificate under 32
M and has played fraud on the Revenue Court and on the Hon'ble
Court.
15) The judgment rendered in Mohan Dashrath Kolakhe (supra) is
peculiar in facts where there was no challenge to the order issued by any
tenancy authority, cannot be applied to the facts of present case.
16) So far as judgment of Apex Court in Horil (supra) is
concerned, the Suit was filed seeking declaration that decree passed by
Assistant Collector in suits filed under sections 176, 177 and 182 of UP
Zamindari Abolition and Land Reforms Act was fraudulent, inoperative
and not binding on them. It was Plaintiff 's case therein that a compromise
was arrived at in the proceedings filed before Assistant Collector based on
fake signatures of the opposite party without serving notice on real
persons. It is in the light of the above facts that the Apex Court ruled in
para 11 and 12 as under:
11. We are of the view that Revenue courts are neither equipped nor
competent to effectively adjudicate on allegations of fraud that has
overtones of criminality and the courts really skilled and experienced to
try such issues are the courts constituted under the Code of Civil
Procedure.
12. It is also well settled that under section 9 of the Civil Procedure Code,
the civil court has inherent jurisdiction to try all types of civil disputes
unless its jurisdiction is barred expressly or by necessary implication, by
any statutory provision and conferred on any other tribunal or authority.
We find nothing in Order XXIII Rule 3-A to bar the institution of a suit
before the civil court even in regard to decrees or orders passed in suits
and/or proceedings under different statutes before a court, tribunal or
authority of limited and restricted jurisdiction.
17) In Horil (supra), maintainability of the suit was questioned
not in view of existence of any statutory bar but in the light of provisions
of Order XXIII Rule 3A of the Code. The judgment is thus clearly
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distinguishable as here, there is express bar under section 85 of the Tenancy
Act.
18) I am therefore of the view that Civil Court doesn't have
jurisdiction to decide the validity of sale permission dated 9 January 1995
or NA Permission dated 20 May 1995.
19) So far as the validity of NA Permission issued by the
Collector on 20 May 1995 is concerned, plaintiff has ample remedies under
the MLRC to challenge the Collector's order. Therefore, the order passed
by collector granting NA permission cannot be called in question by filing
a Civil Suit.
20) The order of the learned Trial Judge is also criticised for
failing to record reasons while passing the impugned order. Though I am in
agreement with Mr. Dakephalkar that adequate reasons are not recorded
while passing the impugned order, I am not inclined to set aside the order
and remand the proceedings for fresh determination only on that count.
The Revision Application is pending for last eleven long years and instead
of remanding the proceedings for fresh consideration, I have proceeded to
decide the correctness of the final conclusion recorded by the learned Trial
Court, even though the reasons recorded for arriving at such conclusion are
not adequate.
21) The Civil Revision Application accordingly succeeds, and I
proceed to pass the following Order:
(i) Order dated 7 August 2014 passed by learned Joint Civil
Judge, Senior Division, Thane in Regular Civil Suit No. 583 of
2003 is set aside.
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(ii) It is held that the Court of the Civil Judge, Senior Division,
Thane does not have jurisdiction to try and entertain Regular
Civil Suit No.583 of 2003.
(iii) Regular Civil Suit No. 583 of 2003 is accordingly dismissed
for want of jurisdiction.
(iv) Dismissal of the suit shall not come in the way of Plaintiff
exercising the remedies under the provisions of Tenancy Act
and MLRC, which proceedings, if initiated, shall be decided on
own merits. All contentions of parties including issue of
limitation are expressly kept open.
22) Civil Revision Application is accordingly allowed and disposed of.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date: [SANDEEP V. MARNE, J.]
2025.10.09
18:08:56
+0530
TUESDAY, 7 OCTOBER 2025
