1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2346 OF 2002 WITH CIVIL APPLICATION NO 6778 OF 2006 Shaikh Mustafa Shaikh Chand Age 65 years, Occ. Agriculture R/o. Bharadi, Tq. Sillod, District Aurangabad ...Petitioner Versus 1 Shri Yadav Chandrabhan Chathe, Age major, occ. Business, R/o. Wadod Chataha, Tq. Sillod, District Aurangabad 2 State of Maharashtra Through Government Pleader High Court, Bench at Aurangabad ...Respondents ..... Mr. Mohd. Mustafa Ahmed Momin, advocate for the petitioner Mr. Balaji Shinde h/f Mr V.P. Latange, advocate for respondent No. 1 Mr. K.J. Ghute Patil, AGP for respondent No.2 ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 08.10.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 14.10.2009 OF JUDGMENT JUDGMENT:- 1 This writ petition is filed challenging that order dated 31.8.2001 passed by the Additional Commissioner, Aurangabad in Case. No. 2 98/ROR/Rev.Pt.R/134 2. The background facts of the case are as under;- There is dispute regarding the cultivation column in the year 1988-89 in respect of Gat No. 106 to the extent of 70 R which was submitted by the Talathi Wadod-Chatha, Taluka Sillod, District Aurangabad, before the Tahsildar Sillod by letter dated 13.1.1989. The notices were issued by the Naib Tahsildar and after hearing both the parties, the said authority by order dated 12.12.1989 directed to enter the name of the respondent in cultivation column in the year 1988-89. The petitioner herein filed appeal before the S.D.O. The S.D.O. Sillod, by is order dated 29.11.1994 upheld the decision of the Naib Tahsildar. The petitioner further filed appeal before the Additional Collector, Aurangabad, who also dismissed the appeal on 31.7.1996 by upholding the judgment and order passed by the S.D.O. Being aggrieved by the order passed by the Additional Collector, a review was filed before the Additional Commissioner, Aurangabad. The Additional Commissioner, Aurangabad also held against the petitioner. Hence this writ petition. 3 Learned counsel appearing for the petitioner submitted that 3 there is clear record which demonstrate that the entires in the revenue record are continuously in the name of the petitioner. It is further submitted that the petitioner is absolute owner of the property and he has not sold the land to Sampat Yashwanta and therefore, there is no question of Sampat Yashwanta of selling the land to Chandraban Yadav. It is further submitted that when Nathu Yashwanta approached the Talathi, his claim was rejected. The consolidation Officer also rejected the claim of Nathu Yashwanta on 16.3.1977. The authorities below failed to consider that from 1967-1977 and from 1977 to 1989 there is conclusive evidence that Sampat Yashwanta, so called purchaser from the petitioner in the year 1967 having no entry in the 7x12 extract from 1977-1989 It is further submitted that Chandrabah Yadav did not approach to the Tahsildar. It is further submitted that all authorities have not properly appreciated the contention of the petitioner that 7x12 extract entires in the 7x12 extract from 1967-77 and from 1977-89 are continuously in the name of the present petitioner. It is further submitted that the authorities below have considered the case by prejudice mind. It is further submitted that since the petitioner approached th the criminal court by way of filing criminal case against Talathi who illegally and wrongly entered the name of Chandrabhan Yadav in the revenue record and therefore, the Talathi being a subordinate of the Officers who decided the case of the petitioner, the higher authorities have tried to shelter the said Talathi. 4 The counsel further submitted that in the year 1988 Sampat Yashwant in collusion with Talathi have made entry in the revenue record. Learned counsel further submitted that the revenue authorities have not decided in favour of the respondent on the basis of any record or on the basis of the sale deed duly proved through Civil Court and passed the impugned orders on presumptions and assumptions. Learned counsel further submitted that after consolidation scheme was implemented there was no scope for the authorities to interfere and change the revenue entires. In 1976 itself the Consolidation scheme was implemented. Learned counsel further invited my attention to the provisions of Section 9 and 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. Learned counsel therefore, wold submit that the petitioner has never sold the land to the respondent and therefore, there was no question of any revenue entries in the name of the respondent. The authorities below have totally failed to appreciate the case and there is no any declaration by any civil court in favour of the respondent and therefore, the impugned judgment and order passed by the authorities below are requires to be set aside. 4 Learned counsel appearing for the respondent No.1 has invited my attention to the orders passed by the authorities below and submitted that the land was sold in the year 1967 itself. Thereafter the 5 Consolidation scheme was implemented and inadvertently by mistake though earlier name of the respondent’s father was shown in the revenue record, after consolidation scheme only the name of the petitioner was shown. Learned counsel submitted that the respondent is putting his claim on the basis of the sale deed. Learned counsel submitted that all authorities have concurrently on facts held in favour of the respondent and therefore, in view of the concurrent findings of the facts any interference in writ jurisdiction is unwarranted. 5 I have heard the learned counsel appearing for the respective parties. On careful perusal of the judgment and order passed by the Addiontal Commissioner, it appears that Shri. Gopala Maroti was the original owner of survey number 34/9, admeasuring 3 Acre 28 gunthas. Said Gopala by a sale deed executed and registered at serial number 788 on 7.4.1967 sold the entire land to the petitioner. The petitioner by registered sale deed at Sr. No.868 on 31.8.1967 sold the area of 1 Acre 28 Guntha out of survey No. 34/1 to one Sampat Yashwanta. Accordingly, mutation entry number 463 was taken in favour of Sampat Yashwanta and same appears to have been certified. After death of Sampat, names of his legal heirs i.e. Nathu, Vitthal, Harichand and Bhimrao, all sons and daughters Smt. Anusaya 6 and widow Smt. Renukabai were sought to be mutated by mutation entry number 974. The said entry was sanctioned in the name of Nathu Sampat as manager of joint family keeping rights of the others intact. Four sons of Sampat appear to have stated before the S.D.O. on affidavit that that the land admeasuring 1 acre 28 Gunthas of survey No.34/9 was sold by them to Shri. Yadav Chandrabahn and possession of the same was also given to him. A copy of the document relating to handing over of possession executed by Nathu, Vitthal, Harichand and Bhimrao all sons of Sampat on stamp paper in favour of Shri Yadav Hcnadrabah is on record. The said document mentioned that the land admeasuring 1 acre and 28 guntha of survey No.34/9 has been sold by them and possession thereof also given. 6 Entry was taken in the name of the respondent in the year 1988-89 over area of 70 R out of survey No.34/9 (Gat No.106). It appears that the work of consolidation of land holding was started in the year 1973 and completed in the year 1976. Survey No.34/9 in consolidation, went to form Gat number 106. The petitioner out of this survey No.34/9 admeasuring 3 acres 28 gunthas has sold an area of 1 acre 28 gunthas by sale deed executed and registered on 7.4.1967 to Shri. Sampat Yasnwahta (father of Nathu), mutation seeking to enter name of Shri Sampat was also sanctioned. However, after consolidation the name of the petitioner alone was shown as owner 7 and this contingency it promoted and made the petitioner to take stand, which he has taken during the proceeding. 7 It is relevant to mention that though the Tahsildar rejected the prayer of Nathu to sanction entry entry No. 1177, however, the Tahsildar while rejecting the said prayer held that the Talathi is not empowered to keep the record of consolidation and applicant should seek redressal by preferring appeal to the higher authority. However, the Tahsildar has taken a note that the applicant had applied on the basis of the sale deed for mutation entry. Though the order dated 16.9.1989 passed by the Tahsildar does not grant any relief to Nathu, theTahsildar has recorded that the claim of Nathu is on the basis of the sale deed. In addition to this, the said fact corroborates through the copies of record of rights on record one pertaining to survey number and other pertaining to Gat number and copy of 7x12 extract relating to survey number 34/9 discloses name of petitioner and name of Sampat Yashwanta over 1 acre 28 gunthas replaced by names of sons of Sampat Yashwanta by mutation entry number 974. The copy of 7x12 extract of Gat No.106 discloses name of petitioner alone in the ownership column. No contention as regards how the area of 1 acre 28 gunthas sold by him to Sampat, again came in his name or in other words how he became owner thereof, is put 8 forth by the petitioner. The authorities have recorded the findings that it appears that the respondent is in possession of 1 acre 28 guntha from the time of his father. 8 Therefore, all authorities have held against the petitioner. The findings which are recorded by the authorities below are that the respondent’s claim is based upon the sale deed and further it appears that the respondent is in continuous possession of the suit land to the extent of 1 acre and 28 gunthas. Therefore, there are concurrent findings of facts recorded by the courts below and all authorities below have held against the petitioner. It is an admitted position that this petition is filed under Article 227 of the Constitution of India and no case is made out to exercise extra ordinary writ jurisdiction of this Court. The authorities below on the basis of the evidence on record and rival contentions have taken a plausible view which appears to be a reasonable view and cannot be upset in the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. 9 Therefore, the concurrent findings recorded by the authorities below needs no interference by this Court. On careful reading of the pleadings in the petition and after appreciating the arguments advanced by the counsel for the parties, I do not find any substance to entertain this petition. Hence, writ petition is dismissed. Rule 9 discharged. Interim relief, stands vacated. 10. In view of dismissal of writ petition, civil application No. 6778 of 2006 does not survive and the same is disposed of accordingly. *****