Sheikh Rafique Sheikh Gulab Nabi and Ors vs Divisional Commissioner, Amravati Division and Ors

Heard.

Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel for the respective parties.

By way of this Writ Petition the petitioners seek to quash and set aside the judgment and order dated 25.10.2021 passed by the Additional Commissioner, Amravati Division, Amravati, in Revision Application No. 102/RTS-64/Shelud/2017-18, whereby the revision application filed by the petitioners was dismissed, thereby confirming the order dated 27.07.2017 passed by the Additional Collector, Buldhana, in the appeal preferred by Respondent Nos.5 to 7.

The factual matrix of the case is that one Gulab Sheikh Abdulla was the original owner of the subject property admeasuring 4.70 HR out of 5.10 HR in Survey No. 128, situated at Mauza Chikhli, District Buldhana. Upon the demise of Gulab Sheikh Abdulla, the subject property came to be mutated in the names of petitioner Nos. 1 to 6 vide Mutation Entry No. 1399 dated 04.09.2009. The names of respondent Nos. 5 to 7 and petitioner No. 7 were excluded on the premise that they had relinquished their right, title, and interest in the subject property by executing a relinquishment deed dated 05.10.1991.

Subsequently, a dispute arose between the parties challenging the mutation entries as well as the relinquishment deed. For convenience, the prior history of the litigation is set out in the table below:

By the impugned order dated 25.10.2021, the Additional Commissioner, Amravati Division, dismissed the Petitioners' revision application, thereby upholding the order of the Additional Collector, Buldhana, directing the recording of the names of Respondent Nos. 5 to 7 in the revenue record and making necessary corrections in Mutation Entry No.1399.

Heard Shri Syed Ahmed, learned counsel for the petitioners, Shri A.M. Chandekar, learned counsel for respondent No. 7, and Smt M.A. Barabde, learned Assistant Government Pleader (AGP) for respondent Nos. 1 to 4.

Learned counsel for the petitioners submitted that respondent Nos. 5 to 7 preferred the appeal before the Sub-Divisional Officer, Buldhana (Respondent No. 3) on 24.08.2015, challenging the mutation entry dated 04.09.2009 after an inordinate delay of six years, that too without preferring an application for condonation of delay. It was contended that this vital aspect was completely overlooked while passing the impugned order. He further submitted that since the Regular Civil Suit is sub judice, the revenue authorities ought to have awaited the outcome of the civil proceedings.

Lastly, he submitted that any right, title, or interest of respondent Nos. 5 to 7 in the subject property stood extinguished upon the execution of the relinquishment deed dated 05.10.1991, which has not been challenged before the competent Civil Court. To substantiate his submissions, learned counsel placed reliance on the order passed by this Court in Writ Petition No. 5478 of 2016 and the judgment in Balkrishna Sadashiv Thakur and Others v. Prabhakar Sadashiv Thakur and Others, 2021 SCC OnLine Bom 176.

Per contra, the learned counsel for Respondent No.7 supported the impugned order passed by respondent No.1. In support of his submissions, he placed reliance on Malhar s/o Balkrushna Kulkarni and Others v. Divisional Commissioner and Others, 2024 DGLS (Bom.) 2785 and Gurudassing Nawoosing Panjwani v. State of Maharashtra and Others, 2016 (1) RCR (Civil) 258.

I have considered the contention canvassed by the learned counsel for the respective parties. As can be seen from the record and as has been vehemently argued by Shri Ahmed, learned counsel for the petitioners that right from inception, the petitioners herein have objection regarding maintainability of the proceedings on the ground of limitation. Even though the Sub Divisional Officer has dismissed the appeal filed by the respondents, the same is on merits and the question of limitation has not been dealt with specifically. The Additional Collector while allowing the appeal has also not taken into consideration the fact that the appeal itself was not maintainable being barred by limitation. Furthermore, there is nothing on record to show that the Commissioner in revisional jurisdiction has adverted to that ground.

Shri A. M. Chandekar, learned counsel for respondent No.7 submits that there is an alternate remedy in the form of further revision before the State Government. But has been rightly pointed out by the learned counsel for the petitioners that this Court vide judgment dated 19/12/2019 in Writ Petition No.5478/2016 (Shri Abdul Shahid S/o Abdul Khalik Patel vs. Shri Abdul Rab S/o Abdul Mabud Patel and ors.) has categorically held that further revision as contemplated under Section 257 of the Code of Civil Procedure, 1908 could not be an alternative efficacious remedy to non-suit the petitioners. As has been rightly pointed out by the learned counsel for the petitioners this Court in Balkrishna Sadashiv Thakur (supra), this Court has held that in absence of an application for condonation of delay and in absence of an order thereon, the order passed on the main application would be without jurisdiction.

Taking overall view of the matter, I am of the considered opinion that the order does not take into consideration the said fact and therefore is without any jurisdiction. The fact however remain that the application for mutation filed by the respondents was decided on its own merits.

In that view of the matter, following order is passed :

With these directions, the writ petition is partly allowed and disposed of. Rule accordingly. No order as to costs.