( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 304 OF 1993 Mhatarji s/o Raoji Sonwane, R/o Bharadi, Tq. Sillod, District Aurangabad. PETITIONER VERSUS 1. Raoji s/o Amrata Sonwane, R/o Bharadi, Tq. Sillod, District Aurangabad. 2. Rukhminibai w/o Maruti Pandav, R/o Andhari, Tq. Sillod, District Aurangabad. 3. Additional Commissioner, Aurangabad. 4. The State of Maharashtra through the Collector, Aurangabad. RESPONDENTS ..... Mr. V.D. Hon, advocate holding for Mr. P.B. Shirsath, advocate for the petitioner. Mr. D.R. Korde, A.G.P. for the respondents No. 3 and 4. None for the respondents No. 1 and 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th June, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns judgement ( 2 ) and order dated 3rd September, 1992, rendered by learned Additional Divisional Commissioner, Aurangabad in revision petition No. 1991/REV/R/14. By that judgement, the learned Additional Divisional Commissioner dismissed the revision petition filed by the present petitioner and confirmed the order of learned Additional Collector, Aurangabad, passed in Case No. 1987/Appeal/MLRC/34. 2. The petitioner challenged mutation entry No. 465 recorded in name of the respondents No. 1 and 2. The petitioner’s contention was that the mutation entry could not have been recorded in absence of any partition. He alleged that the mutation entry was recorded on basis of a fictitious kararnama. He alleged that he was in possession of land Gut No. 192, admeasuring 0 Hectares 29 Ares, out of which 11 Ares area was sold by him in favour of Smt. Saraswati Shikshan Mandal. He further asserted that he was separately cultivating the lands including land Gut No. 192 on basis of partition which was effected a way back. The Naib Tahsildar recorded the name of deceased Amrata, through whom the respondents No. 1 and 2 are claiming their rights. The appeal preferred by the petitioner was allowed by the learned Assistant Collector vide order dated 22nd February, 1987. The ( 3 ) Additional Collector, however, reversed the findings while deciding appeal case No. 1987/Appeal/MLRC/34. The learned Additional Commissioner confirmed the said order. Hence, the petition. 3. Heard learned counsel Mr. V.D. Hon, holding for Mr. P.B. Shirsath, advocate, for the petitioner. None appeared for the respondents No. 1 and 2. The learned A.G.P. supported the impugned judgement. 4. I have gone through the judgements of the learned Assistant Collector, Additional Collector and the Additional Divisional Commissioner. The mutation entry does not create any title or rights. It may be mentioned that the mutation entry No. 465 was certified on basis of a partition deed (kararnama). The alleged kararnama is the main plank on basis of which deceased Amrata Mhasu Sonwane, who was uncle of the petitioner, claimed certain rights. It was contention of deceased Amrata Sonwane that he had brought up the petitioner. It appears that a part of the land Gut No. 192 was acquired by the P.W.D. and a part of the land is in possession of Smt. Saraswati Shikshan Mandal. The Educational Institution runs a school in that portion of the land. The clinching question is ( 4 ) whether the petitioner entered into an agreement dated 2nd March, 1983 whereby he gave possession of the remaining land to the deceased uncle i.e. Amrata Mhasu Sonwane. 5. The so called agreement is unregistered document. The agreement was not duly proved by deceased Amrata Mhasu Sonwane. No attesting witness was examined, nor said Amrata corroborated execution of the document in question. The joint family properties, including land Gut No. 192, were divided between deceased Amrata and father of the petitioner. According to deceased Amrata, there took place dispute about possession of the land Gut No. 192 and, therefore, in the year 1983, a compromise took place between the petitioner and himself. He alleged that 18 Ares area was allotted to his share and, therefore, a kararnama was reduced into writing on 2nd March, 1983. In fact, these issues about due execution of the document and mutual agreement, legal effect thereof and actual possession of said Amruta in respect of separate 18 Ares area should have been left for decision of the Civil Court. The learned Assistant Collector noticed that the kararnama does not show visible thumb impression of the petitioner. Though this finding is recorded on perusal of the kararnama, yet, erroneously the learned Additional Divisional ( 5 ) Commissioner came to the conclusion that the learned Assistant Collector had not considered the relevant kararnama and the other documents. In fact, it was necessary to locate how much area was acquired by the P.W.D. and how much area was left out after such acquisition and transfer of the 11 Ares area in favour of Smt. Saraswati Shikshan Mandal. It appears that the petitioner transferred said 11 Ares area in favour of Smt. Saraswati Shikshan Mandal and that such alienation was not challenged by deceased Amrata. The entire dispute before the Revenue Tribunal was of civil nature. There was no warrant for granting the mutation entry No. 465 whereby the continuous revenue entries appearing in name of the petitioner had been changed. The view taken by the Assistant Collector was reasonable and based on material. The parties could be relegated to the civil Court in view of the peculiar fact situation. The learned Additional Divisional Commissioner appears to have committed patent error while maintaining the order of the learned Additional Collector though he reached conclusion that the learned Additional Collector did not ascribe proper reasons in support of the order. This aspect is quite clear in as much as the learned Additional Divisional Commissioner observed : ( 6 ) “The claim of the revision applicant about the wrong interpretation by the Additional Collector of the provisions of the Indian Evidence Act with respect to burden of proof for the partition deed is correct. The reasoning given by the Additional Collector is not proper. But the decision given by him deserves to be upheld. In conclusion, the revision application fails in proving the impropriety, originality in the order of the Additional Collector.” Perusal of the impugned judgement and order shows that the learned Additional Divisional Commissioner accepted contention of the petitioner that there was no satisfactory proof regarding partition in respect of land Gut No. 192. Once it was found that such internal partition was not duly proved and the unregistered document was not admissible in evidence, the proper course was to direct the parties to approach the civil Court in order to establish their rights and title. 6. For the reasons aforestated, I am inclined to hold that the impugned judgement and order is unsustainable in the eye of law. Hence, the petition is allowed. The impugned judgement and order is set aside. The parties are at liberty ( 7 ) to approach the civil Court in order to establish their rights, title and claim in respect of the land in question. The mutation entry No. 465 is accordingly set aside. Rule is made absolute accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp304-93