1 AO 84/2006. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.84 OF 2006 Vishwambhar s/o Narharrao Patil Age: 62 Yrs., occu. Agril. r/o Farsi Galli, Osmanabad. - APPELLANT (orig.plaintiff) VERSUS 1) The State of Maharashtra Through the Collector, Osmanabad. 2) Sub Divisional Officer, Osmanabad, Sub Divisional Office, Osmanabad. 3) The Tahsildar, Osmanabad,Tehsil Office, Osmanabad. 4) Harischandra s/o Poma Rathod (Dead) (deleted as per the Court’s order dt. 23.2.2007) 5) Dagadu Yemaji Rathod, Age:Major, occu. Agril. r/o as above. 6) Govind Jaising Rathod, Age:Major, occu. & r/o as above. - RESPONDENTS (orig.Defendants) ***** Mr.Santosh G.Chapalgaonkar, Advocate for Appellants; Mr.VB Ghatge,AGP for Respondent Nos.1 to 3; Mr.RP Bhumkar, Adv. for Resp.No.5; Mr.PR Baraskar, Adv. for Respondent No.6. 2 AO 84/2006. CORAM : K.U.CHANDIWAL,J. DATE : 3rd DECEMBER,2010. ORAL JUDGMENT : 1) Heard extensively. On 12th April, 2007, the Appeal from Order was admitted with interim relief in terms of prayer clause (C). 2) The appellant(original plaintiff) feels aggrieved by order of remand recorded in Regular Civil Appeal No.13/2000 by learned District Judge, Osmanabad, upsetting the judgment and decree in Special Civil Suit No.195/1996. 3) A Substantial question of law between the parties would be, - “Whether the learned District Judge was swayed away by non-filing of written statement by the State as defendant and erroneously treating Rs.22,000/- as 1/4th of sale price, when actually it was Rs.18,000/- ? 4) The submissions illustrate that Respondent Nos.4 to 6 were shown as owners of the agricultural property and their failure to pay non-agriculture (NA) cess to the Government invited in getting the property attached and it was put on auction. The plaintiff/appellant was an auction purchaser, deposited 1/4th amount before the revenue authorities. Since there was 3 AO 84/2006. no sale certificate, he moved Special Civil Suit No.185/1996, seeking declaration to the effect that he be declared as purchaser of the suit land in auction held on 3.6.1993 by the defendant no.3 by confirming the auction sale in his favour. Non-prosecution by the State and consent recorded by the owner yielded in decreeing the suit, as stated above. The apathy from State authorities in casually attending the matter calls for an action against them. Learned Collector, Osmanabad to do the needful. 5) The State woke up from slumber and felt that it erred in not prosecuting the matter in right perspective and mistakenly faced the decree referred to above. 6) It was informed that as per the revenue entries, referred in 7/12 extract (Exhibit-3), the suit property was shown to be owned by the original defendant nos.4 to 6 (Respondents nos.4 to 6 herein). The revenue record was produced before the learned Judge, illustrating that from Survey No.98, on 3.6.1993, 13 acres of land was sold/put on auction in favour of the plaintiff/appellant for a consideration of Rs. 72,000/- to meet the arrears of cess amounting to Rs.18,696/-. The reference of deposit of Rs. 22,000/- was confusing. 7) The learned Judge of the first Appellate court found that the plaintiff asserted to have 4 AO 84/2006. deposited an amount of Rs.22,000/- to the Tahsildar, however, such receipt was not produced. He informed, when a specific question was put, whether such receipt is with the Tehsil office or with Collector office, such receipt was not called nor shown to the court . 8) The learned District Judge in paragraph 10 of his order elaborately recorded in context of Order XXI, Rule 85 of CPC the mandatory compliances warranted for depositing the amount of sale price, was apparently wanting. The learned District Judge also found that the State authorities did not prosecute the matter deligently and hence desired that there should be a written statement from the State and also evidence from both the parties. 9) Today during the course of hearing, CA No.12871/2009 moved by 42 persons claiming that they are the purchasers of the property from Respondents Nos.4 to 6/original owners way back in 1983, is also heard. Their purchase was under a valid layout. It is informed, the property owned by the intervenors was put on auction without any communication/notice to them and intervention is sought. 10) Without adverting to the merits of intervention application, it is illustrative that there was sale-deed in favour of the intervenors by original owners (Respondent Nos.4 to 6) way 5 AO 84/2006. back in 1983. However, non-reflecting the same in revenue records by itself will not dilute rights prevalent of the said purchasers. This aspect has not been taken into consideration at any stage, probably, as the intervenors were not represented nor were arrayed as parties in the original proceedings. 11) I do not see any reason to implead intervenors in the appeal. The intervenors/applicants are at liberty to move the learned Judge in Special Civil Suit No.185/1996 to implead them as party and it will be independently dealt with by the learned Judge. The intervention application is disposed of. 12) Now, reverting to the basic lacunae in the evidence recorded by the learned Judge of the first instance and non-compliances of the statutory requirements, the learned first Appellate court was within the realm to remand the matter. The learned first Appellate Court did not exceed in exercise of his powers while remanding the matter, else the decree could have added a may-hem to the miseries of real owners. There is no error on his part and the substantial question of law, posed herein above, is answered against the appellant/plaintiff. 13) In the result, the order under challenge does not call for any interference. Appeal from Order dismissed. No costs. 6 AO 84/2006. 14) Heard. The parties to maintain status quo in relation to the suit property till 13th January, 2011. It is clarified, the observations made in this order are prima facie in nature. sd/- (K.U.CHANDIWAL) JUDGE bdv/ Authentic copy (BD VADNERE,PS)