1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1084 OF 1991 Dnyandeo Rambhau Kshirsagar Age 40 years, Occu. Agri., R/o Village Pedgaon, Tq. Shrigonda, Dist: Ahmednagar ... Petitioner. Versus 1) Smt. Tarabai W/o Dattu Kshirsagar, Age 45 years, Occu. Agri., R/o Pedgaon, Tq. Shrigaonda, District : Ahmednagar. 2) Smt. Suman Vithal Gholap, Age 35 years, Occu. Household, R/o 1354, Bankar Wada, Before Pune Municipal Corporation, Shivaji Nagar, Pune-5. ... Respondents. -------- Shri. A.B. Gatne, Advocate for the petitioner. Shri. S.V. Natu , advocate, for the Respondent Nos. 1 & 2. -------- CORAM: S.S. SHINDE, J. DATE: 13th JANUARY, 2010 ORAL JUDGEMENT : 2 1) This Writ Petition is directed against the judgment and order dated 28-01-1991 passed by the Additional Commissioner, Nashik Division, Nashik in revision application No. 367 of 1988. Brief facts as narrated in the petition are as under :- 2) There was a joint family consisting of three brothers namely Dattu, Dnydeo and Tukaram. The Gut No. 62, 515 and 38 situated at Pedgaon, Tq. Shrigonda, District Ahmednagar were their ancestral property. The Dattu is the husband of the present respondent No. 1 and Dnyndeo is the present petitioner. After death of their father Rambhau, the said property Gut No. 62,515 and 38 were mutated in the name of Dattu being head of the joint family as Karta. The mutation entry was effected in the village record of rights on the application filed by the Dattu himself to the Talathi. 3 3) It is the case of the petitioner that, the property Gut No. 62 is the subject matter of the present dispute. In the year 1988, Gut number of the lands in Village Pedgaon are changed and Gut No. 62 is renumbered as Gut No. 63. However, as the Lower Courts below referred the said property as Gut No. 62 only, the property in dispute refer as Gut No. 62 for the sake of convenience in this Writ Petition also. 4) It is the case of the petitioner that, his brother Dattu was the Karta of the joint family, subsequently died on 27-01-1979 and on that basis the present respondent No. 1 tried to get recorded her name and name of her children, as only heirs of deceased Dattu, however, the petitioner took objection to it and accordingly the names of the present petitioner No. 1 and petitioner and other brother Tukaram were mutated as joint owners and possessors of the said properties including Gut No. 62 to the extent of 1/3rd share each respectively. The said mutation 4 entry is bearing No. 408 dated 24-01-1979, which is still existing and unchanged. 5) It is further case of the petitioner that, inspite of mutation entry No. 408, showing respondent No. 1 is owner only to the extent of 1/3rd share, respondent No. 1 Tarabai executed sale-deed dated 17-04-1979 in favour of the respondent No. 2 in respect of entire land. It is further case of the petitioner that, being owner of only 1/3rd sahre she has no right or title and interest to sale out entire gut number. So also, the respondent No. 1 Tarabai being guardian of the minors who are having their interest and share in the 1/3rd share of Tarabai, being property ancestral, has no right to sale out the gut No. 62 in favour of the respondent NO. 2. However, in spite of all these admitted facts, the respondent No. 1 executed the sale deed for the entire land Gut No. 62 in favour of respondent No. 2. It is further case of the petitioner 5 that, on the basis of such sale-deeds the name of the respondent No. 2 was entered in the record of rights of Gut No. 62 as owner and possessor by the Awal Karkun. The said is entry No. 520. It is further case of the petitioner that, being aggrieved by the entry No. 520, the petitioner preferred a R.T.S. Appeal bearing No. 50 of 1981 in the Court of Assistant Collector, Parner, Dist. Ahmednagar. The Assistant Collector, Parner allowed the appeal, after hearing both the parties, and directed concerned authority to show the name of the respondent No. 2 in other rights column of Gut No. 62. Being aggrieved by the decision of the Assistant Collector, Parner, the respondent No. 2 preferred second R.T.S. Appeal No. 52/1986 before the Collector, Ahmedngar. The said appeal came to be dismissed, therefore, the respondent field revision before the Additional Commissioner (Revenue), Nashik Division, Nashik. 6) It is further case of the petitioner 6 that, while said revenue proceedings were going on between the parties, the present petitioner on his behalf and on behalf of minors of Dattu of respondent No. 1 filed suit bearing RCS No. 196/1979 in the Court of Civil Judge Junior Division, Shrigonda, initialy is for injunction restraining the respondent No. 1 from selling out the land and subsequently, by amendment or declaration that the sale deed is null and void. It is the case of the petitioner that, in the said suit, in the deposition of respondent No. 1 she admitted that she is no concerned with the share allotted to the plaintiff / petitioner and defendant No. 2 as per oral partition and partition has been effected between the brothers. However, in respect of this suit the said suit has been dismissed on ground that petitioner is never been appointed and effected as a guardian of minors etc. The Additional Commissioner, Nashik Division, Nashik was pleased to reverse the decision of the Collector, Ahmednagar and 7 Assistant Collector, Parner and confirmed the decision of Awal Karkoon confirming certifying the mutation entry No. 520 entering the name of the respondent No. 2 in ownership and in cultivation column. It is the case of the petitioner that, Commissioner has allowed the revision only on the ground that the Civil Judge Junior Division, Shrigonda has dismissed the suit of the petitioner. It is further case of the petitioner that, the Regular Civil Appeal is filed by the present petitioner challenging the judgment and order passed by the Civil Judge Junior Division, Shrigonda. 7) The learned counsel appearing for the petitioner has tendered a copy of judgment and order dated 28-08-1987 passed by the Additional District Judge, Ahmednagar in Regular Civil Appeal No. 124 of 1990 which was filed by the present petitioner challenging the order passed by the C.J.J.D., Shrigonda on 01-02-1990. The said copy of the judgment and order passed by the 8 Additional District Judge, Ahmednagar is taken on record. On the basis of said copy of judgment and order, the learned counsel appearing for the petitioner contended that, the sale-deed executed by respondent No. 1 Tarabai in favour of Respondent No. 2 Suman herein dated 17-04-1979 is held to be not binding on the interest of plaintiff No. 1 as well as Defendant No. 2 to the extent of 1/3rd share each. By way of said judgment and order, the defendant No. 3 is injuncted by permanent decree from causing any interference and obstruction in the possession of the plaintiff and defendant No. 2 over all Gut No. 62. Therefore, the learned counsel would submit that the Additional Commissioner, Nashik Division, Nashik allowed the revision filed by the respondent No. 2 only on the ground that, the C.J.J.D., Shrigonda in RCS No. 196 of 1979 has held against the present petitioner. According to the learned counsel, since the Additional District Judge, Ahmenagar has set aside the judgment in R.C.S. No. 196 of 1979 and decided 9 the appeal in favour of the present petitioner, the order passed by the Additional Commissioner, Naasik Division, Nashik deserves to be set aside. 8) The learned counsel appearing for the respondent has not disputed the judgment and order passed by the Additional District Judge, Ahmednagar in RCA No. 124 of 190 dated 28-08-1997. 9) I have heard learned counsel appearing for the petitioner and respondent at length, perused the petition and annextures thereto, it appears that this Court heard this Writ Petition for admission on 09-01-1992 and issued Rule and interim relief as prayed in the petition. It further appears that during the pendency of the Writ Petition, the R.C.A. No. 124 of 1990 filed by the present petitioner has been allowed by the Additional District Judge, Ahmednagar. On careful perusal of the judgment and order passed by the Additional Commissioner, Nashik Division, Nashik, 10 it is clear that the Additional Commissoner, allowed the Revision filed by the respondent No. 2 merely on the ground that, R.C.S. No. 196 of 1979 preferred by the petitioner herein came to be rejected. Since the order in R.C.S. No. 196 of 1979 is set aside in R.C.A. No. 124 of 1990, the view taken by the Additional Commissioner, while allowing the revision needs to be set aside. Therefore, in my considered view, in view of the judgment and order in R.C.A. No. 124 of 1990 passed by the Additional District Judge, Ahmednagar judgment and order passed by the Additional Commissioner, Nashik Division, Nashik in revision requires to be quashed and set aside. Hence, rule made absolute in terms of prayer clause ‘A’. The impugned judgment and order dated 28-01-1991 passed by the Additional Commissioner, Nashik Division, Nashik is quashed and set aside, the Writ Petition is allowed and disposed of. 10) Civil Application if any would not 11 survive, in view of the disposal of the main Writ Petition. (S.S.SHINDE, J.) sdm/wp83.92 12