Samalochan Ekta Co-Operative Housing Society Ltd. vs Smt. Rekhabai W/O Goverdhan Borkar & Ors.

The present petition came to be filed by the Petitioner-Society against the order of the Additional Commissioner, Nagpur in Revision Application No.23/RTS-64/2013-14 decided on 27.05.2014.

The contention of the Petitioner-Society is that the property in a dispute bearing Kh.No.14/1 and 14/2 of Mouza-Kalamna, Nagpur was originally owned by one Haridas Shivdas Borkar. In the year 1987, by registered sale deed, the property was purchased by the Petitioner-Society. On production of the registered sale deed, the mutation entries were also recorded in the year 1988. Haridas Borkar from whom the property was purchased has never raised any objection on the contrary by issuing him notice, the mutation entries were recorded in favour of the Petitioner-Society.

It is further submitted that said Haridas Borkar was expired in the year 1994. After him, his wife Jamunabai and son Goverdhan also expired. The legal heirs of Goverdhan, after period of 22 years, has filed the proceeding before the Sub-Divisional Officer, Nagpur thereby challenging the mutation entries which are recorded in favour of the Petitioner-Society.

The learned Sub-Divisional Officer, by the order dated 02.05.2012, though recorded the findings in favour of the Petitioner-Society that on the basis of registered sale deed, the mutation entries were recorded in favour of the Petitioner-Society, by holding that as per Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, the permission was required to be obtained. The said permission was not obtained and, therefore, the transaction between Late Haridas Borkar and the society being illegal cancelled the mutation entries which were recorded in favour of the Petitioner-Society.

The Petitioner-Society, therefore, preferred the statutory appeal before the Collector, Nagpur under Section 247 of the Maharashtra Land Revenue Code, 1966. The Petitioner-Society inter alia raised ground that the learned Sub-Divisional Officer entertained the appeal without there being any application for condonation of delay and, therefore, for entertaining such appeal, after a long period of 22 years, is not tenable.

The said proceedings were also contested by the present respondents. After hearing both the parties, the learned Additional Collector, Nagpur decided the proceeding by order dated 07.12.2013. The learned Collector has noted the fact that the respondents in addition to the revenue proceedings has also filed the civil proceedings and same are pending before the competent court of law. As such, the learned Collector has passed the order stating that the order dated 02.05.2012 passed by the Sub-Divisional Officer is confirmed, however, parties should maintain the status-quo till the decision of the pending Regular Civil Suit No.429/2011 and the entries in the revenue record shall be corrected after the decision of the civil suit.

The Petitioner-Society as well as the Respondents both being aggrieved by the said order of the Collector preferred the independent revision before the Additional Commissioner, Nagpur Division, Nagpur. The learned Commissioner, by the impugned order dated 27.05.2014 allowed the revision filed by the respondents and rejected the revision filed by the petitioner. By the impugned order, learned Commissioner issued the directions to the concerned authorities to mutate the name of the legal heirs of Haridas Borkar on 7/12 extract. In other words, the order passed by learned Sub-Divisional Officer is confirmed in the matter.

In this background, the Petitioner-Society approached before this Court by filing the present writ petition. This court by order dated 21.08.2015 has granted stay to the order of the Additional Commissioner which is impugned in the matter. The said order was further modified by order dated 15.07.2016 and by way of interim arrangement, it was directed that the entry which stood in the revenue record on 21.08.2015 when this Court passed the interim order, shall continue in the revenue record and the Tahsildar shall take note of the interim order passed by this Court on 21.8.2015 in the revenue record.

The respondents, who contested the present petition, came with a submission that the learned Sub-Divisional Officer has rightly interpreted the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act and rightly hold that as there was no permission obtained under Section 89 of the said Act, consequently the transaction itself is illegal and as such Commissioner has rightly considered the controversy and, therefore, no need of any interference at the hands of this court in the matter.

The respondent further submitted that in the present case admittedly the civil proceedings are pending before the Civil Court and, therefore, interim arrangement which was made by this court before 15.07.2016 can be kept continue and the petition can be disposed of accordingly by directing the Civil Court to decide the Civil Suit expeditiously.

In the present matter, the challenge before this court is of the order passed by the Additional Commissioner, Nagpur dated 27.05.2014. Therefore, this court is testing the order only to the extent, whether the Commissioner has rightly exercised his jurisdiction while passing the impugned order or not.

In the present matter, admittedly the mutation entries were recorded in favour of the Petitioner-Society in the year 1988. During the lifetime of Haridas Borkar, who expired in the year 1994, never objected the mutation entries which are recorded in the revenue record. So also his wife Jamunabai and son Goverdhan, during their lifetime, never objected the mutation entries which were recorded in the name of the Petitioner-Society.

It is pertinent to note that the legal heirs of Goverdhan, after a period of 20 years, raised a grievance that Haridas Borkar was an illiterate person and petitioner-society fraudulently get registered the sale deed in their favour. Therefore, the transaction which was taken place by keeping in dark to the Haridas Borkar are requires reconsideration in the matter.

The learned Sub-Divisional Officer, while deciding the appeal without considering the delay, has entertained the appeal and furthermore has added the ground in this impugned order that the permission under Section 89 of the The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act was not obtained at the time of execution of the sale deed and, therefore, the entire proceeding is illegal.

It would be pertinent to note that under the Provisions of the Maharashtra Land Revenue Code, the powers which are provided to the revenue authorities are under Section 149 of the Code is only to the extent that if any person acquiring any property by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, if reported orally or in writing, then in that case, the Revenue Officer is required to record such entry in the revenue record. If there is a dispute between the parties about the mutation entries, then he can record such entry by exercising the powers under Section 150 of the Maharashtra Land Revenue Code. The Code nowhere empowers the authority to go into the merits of the transaction or decide the validity of transaction. In appeal nor in revision, Revenue Authority cannot decide the validity of registered document, therefore, considering the provisions of the Maharashtra Land Revenue Code, the learned Sub-Divisional Officer by exceeding his powers decided the validity of the transactions which were held in the year 1987-88 between Haridas Borkar and the Petitioner-Society. Hence, on this count alone, the impugned orders passed by Revenue Authorities are liable to be quashed and set aside.

It is further pertinent to note that there was a delay of 22 years in filing the proceeding before the Sub-Divisional Officer. The learned Sub-Divisional Officer did not touch to that aspect while deciding the appeal. So also the learned Collector as well as the Commissioner did not dealt with the issue of delay which was specifically raised by the appellant in appeal before the Collector and in revision before the Commissioner, Nagpur.

In the present case, it is further pertinent to note that between the parties, the Civil Suit is pending before the learned Civil Judge, Senior Division, Nagpur. In the said proceeding, the respondent has challenged the sale deeds which are executed by Haridas Borkar in favour of the Petitioner-Society. The said proceedings are independent in nature and the Civil Court will have to decide on its own merits. It is also well settled position of law that if the civil proceedings are decided in either way, then on the basis of the decision of the Civil Court, the mutation entry can be recorded accordingly by the parties. Therefore, merely because the civil proceedings which are filed by the respondent, the mutation entries which were existing since 1988 cannot be disturbed in the present case. At the most, the respondents can be granted liberty to invoke the powers under Section 150 of the Maharashtra Land Revenue Code by requesting to Revenue Officer to record the pendency of the proceeding before the Civil Court and accordingly, the entries of disputed case can be recorded by the Revenue Officer.

In my considered opinion, the learned Sub-Divisional Officer has committed illegality by entertaining the proceeding after a period of 22 years period. Furthermore, the learned Sub-Divisional Officer has no authority to decide the validity of the transaction which was taken place between Haridas Borkar and the Petitioner-Society. The said issue can only be decided by the Civil Court independently. Therefore, the Revenue Authorities including Additional Commissioner, Nagpur in the present matter has committed manifest error by upholding the order of Sub-Divisional Officer in the matter. Therefore, interference of this Court is necessary. Accordingly, the following order is passed :

O R D E R

The petition stands disposed of accordingly.