1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 114 OF 2008 IN WRIT PETITION NO. 276 OF 2008 1. Mrs. Mangala w/o Sharad Mutha, Age : 53 Years, Occu. : Business, R/o 83, Maniknagar, Pune-Nagar Road, Ahmednagar. 2. Sharad S/o Mansukhlal Mutha, Age : 57 Years, Occu. : Business, R/o 83, Maniknagar, Pune-Nagar Road, Ahmednagar. 3. Smt. Leelabai W/o Ratilal Lodha, Age : 65 Years, Occu. : Household, R/o 3728, Shahaji Road, Ahmednagar. 4. Vijay S/o Ratilal Lodha, Age : 48 Years, Occu. : Business, R/o 3728, Shahji Road, Ahmednagar, 5. Pradip S/o Ratilal Lodha, Age : 48 Years, Occu. : Business, R/o 3728, Shahji Road, Ahmednagar. 2 6. Dr. Prakash S/o Kanihyalal Kankaria, Age : 48 Years, Occu. : Doctor, R/o Surya Clinic, Maniknagar, Ahmednagar,. 7. Dr. Sudha W/o Prakash Kankaria, Age : 46 Years, Occu. : Doctor, R/o Surya Clinic, Maniknagar, Ahmednagar. 8. Sharad S/o Manakchand Gundecha, Age : 62 Years, Occu. : Business, R/o Chandan Estate, Maniknagar, Nagar-Pune Road, Ahmednagar. 9. Arvind S/o Manakchand Gundecha, Age : 55 Yeas, Occu. : Business, R/o Chandan Estate, Maniknagar, Nagar-Pune Road, Ahmednagar. 10. Dhanesh S/o Paoptlal Gandhi, Age : 49 Years, Occu. : Business, R/o Chandan Estate, Maniknagar, Nagar-Pune Road, Ahmednagar. 11. Prakash Dhanraj Munot, Age : 62 Years, Occu. : Agril., 12. Smt. Chhaya Prakash Munot, Age : 57 Years, Occu. : Household, No. 11 and 12 R/o Satta Colony, Ahmednagar, Dist. Ahmednagar. 3 13. Indumati w/o Ashok Parakh, Age : 52 Years, Occu. : Household, 14. Abhay S/o Ashok Parakh, Age : 30 Years, Occu. : Business, No. 13 and 14 R/o Manik Nagar, Ahmednagar. .. .. .. Petitioners (Orig. Petitioners) Versus 1. The State of Maharashtra through its Secretaries, Departments of Revenue and Forests, as well as Law & Judiciary, M.S., Mantralaya, Mumbai. 2. The Collector, Ahmednagar, Ahmednagar. 3. Hasan Babu Zarekari, Age : 50 Years, Occu. : Business, R/o Burudgaon. 4. Shri Venugopal Nandlal Dhoot, Age : 51 Years Occu. : Business, R/o Gangapur Ginning Compound, Station Road, Ahmednagar. 5. Mahadu Narayan Pawar, Deceased through His Legal Heirs. 4 5-A. Balwant Mahadu Pawar, Age : 45 Years, Occu. : Agriculture, 5-B. Smt. Anusaya Mahadu Pawar, Age : 71 Years, Occu. : Household, 5-C. Smt. Asha Ganesh Pawar, Age : 47 Years, Occu. : Household, 5-D. Rahul Ganesh Pawar, Age : 23 Years, Occu. : Education, 5-E. Smt. Kusum Vinayak Pawar, Age : 44 years, Occu. : Household, 5-F. Nitin Vinayak Pawar, Age : 24 Years, Mentally retarded, 5-G. Vithal Vinayak Pawar, Age : 21 Years, Occu. : Education, 5-H. Mrs. Priyanka Vinayak Pawar, Age : 16 Years, Mentally retarded, Respondent Nos 5-F and 5-H are mentally retarded represented through their Legal guardian mother i. e. Applicant No. 5-E. All R/o Shiv Krupa, Ahmednagar, Dist. Ahmednagar. .. .. .. Respondents (Orig. Respondents) 5 Shri R. R. Mantri, Advocate for the Appellants. Shri K. G. Patil, A. G. P. for Respondent Nos. 1 and 2. Shri R. N. Dhorde, Advocate h/f Shri R. L. Kute, Advocate for Respondent No. 3. Shri A. S. Bajaj, Advocate for the Respondent No. 4. Shri V. D. Hon, Advocate for Respondent Nos. 5(A) to 5(H). CORAM : P. V. HARDAS & R. K. DESHPANDE, JJ. DATE OF RESERVING JUDGMENT: 02ND JULY, 2009. DATE OF PRONOUNCING JUDGMENT: 22ND JULY, 2009. FACTS 01. The appellants herein claimed themselves to be the successors in- title as well as in possession of the properties survey Nos. 53/1B, 52/1, 52/2, 133 and 46/2 situated at Chahurna (Bk), Taluka and District Ahmadnagar, from the original defendant Nos. 7 & 8 in Special Civil Suit No. 13/1956 decreed on 13.04.1956 by the learned Civil Judge Senior Division Ahmednagar. The appellants are the objectors in Special Darkhast No. 57/1977, to the executability of the decree passed 6 in Special Civil Suit No. 13/1956. The objections raised by the appellants to the executability of the decree are rejected by the Collector, Ahmednagar vide his order dated 24.12.2007 and also by the learned Civil Judge Senior Division, Ahmednagar by his order dated 07.01.2008. The appellants preferred writ petition No. 276/2008 under Article 226 and 227 of the Constitution of India before learned Single Judge challenging the aforesaid orders. The said writ petition is dismissed by the learned Single Judge, in motion hearing by his order dated 12.06.2008, against which, the instant Letters Patent Appeal has been filed. Basically two questions are required to be decided in this appeal : (1) Regarding the maintainability of Letters Patent Appeal. (2) The merits of the matter challenging the orders passed by the Collector on 24.12.2007 and by the Civil Court on 07.01.2008. 02. The facts in detail giving rise to the instant appeal are as under : One Maheboob Zarekari was the owner of survey Nos. 46/2, 47/6, 48/6, 53/1B, 133/3, 52/1, 52/2, 131, 50/4 situated at Chahurna (Bk), Taluka and District Ahmednagar and the house property bearing No. 5106 City Survey No. 4097 Ward No. 12, Ahmednagar. Said Maheboob Zarekari died on 19.05.1948 leaving behind him his widow Mamulabee and a daughter Chotibee. The property was then mutated 7 on 13.07.1948 in the name of widow Mamulabee. On 27.07.1949 Mamulabee executed gift deed in respect of survey Nos. 47/6, 48/6 and 50/4 in favour of one Babu Sagulal Itare @ Zarekari. On 13.04.1953, Mamulabee executed registered sale deed in favour of one Sakharam Mahadev Misal in respect of survey No. 52/2. On 12.11.1953, Mamulabee sold property survey No. 53/1B by registered sale deed to one Ramchandra Gopinath Misal. Again on 23.09.1953, Mamulabee executed another sale deed in favour of Sakharam Misal in respect of survey No. 52/1. 03. On 13.04.1957 Chotibee filed Special Civil Suit No. 13/1956 for partition and separate possession in respect of the properties owned by her father Maheboob Zarekari. In the said civil suit Mamulabee was joined as defendant No. 1 and the other persons to whom Mamulabee transfered survey Nos. 46/2, 131, 47/6, 48/6, 52/1, 53/1B and 133/3 were also joined as defendant Nos. 2 to 9. Babu Sagulal Itare @ Zarekari was joined as defendant No. 2 as survey No. 47/6, 48/6 and 50/4 were transfered to him by way of gift by Mamulabee. The defendant No. 3 Khandu Ramu Phulsaunder and defendant No. 4 Laxman Ramu Phulsaunder purchased survey No. 131 and some portion of survey No. 46/2 and hence were joined as defendant Nos. 3 and 4 respectively. One Raghunath Pandit purchased survey No. 46/6 from defendant No. 2 and was joined as defendant No. 5 in the suit. Rev. Dr. Bhaskar Diwale 8 purchased survey No. 48/6 from defendant No. 2 and hence was joined as defendant No. 6. Sakharam Misal purchased survey No. 52/1 and 52/2 from defendant No. 1 and, was therefore, joined as defendant No. 7. Ramchandra Misal purchased survey No. 53/1B and Laxman Bhosale purchased survey No. 133/3 and, hence, were joined as defendant Nos. 8 and 9 respectively. 04. During the pendency of the said Special Civil Suit plaintiff/Chotibee executed registered sale deed dated 25.05.1957 by which she sold her 3/4 th share in the land survey Nos. 47/6, 48/6, 53/1B, 133/3, 52/1 and 52/2 to one Mahadu Narayan Pawar, who subsequently joined in the said special civil suit as plaintiff No. 2. Thus the Chotibee and Mahadu were the plaintiff Nos. 1 and 2, whereas, Mamulabee was defendant No. 1 and the other purchasers were defendant Nos. 2 to 9. 05. On 13.09.1957 the Trial Court i. e. the learned Civil Judge Senior Division, Ahmednagar passed decree in favour of plaintiff No. 1 Chotibee to the extent of her 7/8 th share in the suit house and the suit land survey No. 50/4. A decree was passed in favour of plaintiff No. 2 Mahadu to the extent of 7/8 th share in the suit lands survey Nos. 47/6, 48/6, 53/1B, 133/3, 52/1 and 52/2. A decree was also passed in favour of defendant No. 1 Mamulabee to the extent of 1/8 th share in the house and suit lands survey Nos. 46/2, 47/6, 131 and 50/4. The suit was 9 further decreed in favour of defendant No. 6 to the extent of 7/8 th share in the suit land survey No. 48/6, in favour of defendant No. 7 Sakaram to the extent of 1/8 th share in the suit land survey No. 52/1 and 52/2, in favour of defendant No. 8 Ramchandra to the extent of 1/8 th share in the suit land survey No. 53/1B and in favour of defendant No. 9 to the extent of 1/8 th share in the suit land survey No. 133/3. Further inquiry into the mesne profit was also ordered under Order XII Rule 18 of Civil Procedure Code and it was directed that the plaintiff Nos. 1 and 2 and the defendant Nos. 1, 6 to 9 be put in to separate possession of their respective shares as declared by the judgment and order. The names of defendant Nos. 3 and 4 were ordered to be deleted from the suit. 06. Being aggrieved by the aforesaid judgment and decree passed by the Trial Court, the original defendant Nos. 7 and 8 preferred separate appeals before this Court. The appeal filed by the defendant No. 7 Sakharam Mahadeo Misal was registered as First Appeal No. 78/1958, whereas, the appeal filed by the Ramchandra Gopinath Misal was registered as First Appeal No. 79/1958. This Court delivered the common judgment and order in both the appeals, on 24th September, 1963. The decree passed by the Trial Court was confirmed, however, there was some modification made in the decree, which according to original defendant Nos. 7 and 8, protected their possession on the basis of equitable partition. However, the plaintiffs/decree holders disputed 10 this claim made by the original defendant Nos. 7 and 8. This Court in its judgment above, also framed two issues regarding status of tenant, claimed by the defendant Nos. 7 and 8 and directed the lower Court to refer the same to the Mamlatdar, for determination. The reference to this dispute shall be made in the later part of this judgment, while dealing with the contentions of the parties. Thereafter, on the application for speaking to minutes filed in aforesaid First Appeals, this Court passed an order dated 09.02.1963, clarifying certain position and issuing directions. 07. On 23rd December, 1963, the decree passed by the Trial Court in Special Civil Suit No. 13 of 1956 was amended in the light of judgment and order dated 24.09.1963 passed by this Court in the aforesaid two appeals and on the application for speaking to minutes, passed on 09.10.1963. The plaintiffs filed Special Darkhast No. 06/1965 for execution of the modified decree, however, there is dispute about the papers of Special Darkhast No. 06/1965 being lost. The plaintiff No. 1 Chotibee died on 02.10.1966. Thereafter, on 13.04.1977 Special Darkhast No. 57/1977 was filed by the legal representatives of plaintiff No. 1 along with the plaintiff No. 2 Mahadu Narayan Pawar. 08. During the pendency of the Special Darkhast No. 57/1977, the plaintiff No. 2 Mahadu Narayan Pawar assigned his rights under the 11 decree in favour of one Hussan Babu Zarekari in respect of his share in lands survey No. 47/6, 48/6, 53/1B, 133/3, 52/1 and 52/2 by executing a deed of assignment dated 01.10.1981. On 22.10.1981, the defendant No. 3 and 4, who were deleted from the suit by an order of the Trial Court, filed an application Exh. 14 praying for deletion of survey No. 131 and 46/2 of Chahurna (Bk) from Special Darkhast No. 57/1977. On 23rd October, 1981, the defendant Nos. 7 and 8 filed application Exh. 17 in Special Darkhast No. 57/1977 for deletion of lands survey No. 52/1 and 52/2 alleging that as per the modification of the decree done by this Court in First Appeals No. 78/1958 and 79/1958, the whole survey Nos. 52/1 and 52/2 were to be assigned to the share of defendant No. 1 by way of equitable partition. Similarly a pursis (Exh. 21) was also filed by Hassan Babu Zarekari on 16.11.1981, for substituting his name, in place of plaintiff No. 2/decree holder No. 2 Mahahu Narayan Pawar, on the basis of deed of assignment dated 01.10.1981. Similarly, on the same day i. e. on 16.11.1981, the plaintiff No. 2/decree holder No. 2 Mahadu Narayan Pawar also filed application (Exh. 22) for deleting his name in Special Darkhast No. 57/1977. 09. Although, the executing Court passed an order on 21.12.1981 below Exh. 14 deleting survey Nos. 46/2 and 131 from Special Darkhast No. 57/1977 and also passed another order on 21.12.1981 below Exh. 17 directing the Collector to allot survey No. 52/1 and 52/2 to the share of 12 defendant No. 1 in the proposed partition, did not pass any orders on the applications Exh. 21 and 22 filed for substituting the name of Hassan Babu Zarekari in place of decree holder No. 2 Mahadu Narayan Pawar or deleting the name of decree holder No. 2 from Special Darkhast No. 57/1977. The matter remained pending before the executing Court. On 22.11.1983 one Shaikh Ahmad claiming to be the legal representative of the plaintiff No. 1/decree holder No. 1 filed an application Exh. 26 for joining certain persons as parties to the Special Darkhast No. 57/1977. Notices were thereon issued to the concerned parties proposed to be joined as defendants/non applicants in Special Darkhast No. 57/1977. Amongst those proposed parties some are the appellants now in this appeal. 10. The decree holder No. 2 Hassan Babu Zarekari filed writ petition 1788/1988 before this Court challenging order dated 27th April, 1987, passed on Miscellaneous Application No. 97/1984 by the Second Joint Civil Judge Senior Division, Ahmednagar, rejecting the application for making reference to the Mamlatdar for deciding whether defendant No. 7 and 8 are the tenants in the suit land survey No. 52/1, 52/2 and 53/1B. It was prayed that if upon the decision being rendered that the defendant Nos. 7 and 8 are not the tenants, then the applicant be put in actual possession of 7/8 th share in the aforesaid lands, and accordingly, the Collector be directed. It was further prayed that necessary amendments 13 be made in the Special Darkhast No. 6/1965 and Special Darkhast No. 57/1977. In this petition the decree holder No. 2 Hassan Babu Zarekari joined some of the appellants as respondents, apart from the original defendants were also joined as respondents in the said writ petition. The said writ petition was ultimately dismissed as infructuous and was disposed of as such on 12.04.1990. 11. The Special Darkhast No. 57/1977 was pending for execution, on 09.03.1998 the executing Court passed an order below Exh. 21 which was a pursis filed under the signature of Hassan Babu Zarekari an assignee of decree from plaintiff No. 2/decree honder No. 2 Mahadu Narayan Pawar, for deletion of the name of Mahadu Narayan Pawar and for substituting his name. However, according to the decree holders no order was passed on Exh. 22 an application which was filed by Mahadu Narayan Pawar for deletion of his name. On 10.04.2002 the decree holder No. 2 Hassan Babu Zarekari moved an application under Section 47, 54 of Civil Procedure Code, read with Section Order XXI Rule 35 of Civil Procedure Code and Section 151 of Civil Procedure Code Exh. 99 praying therein that the decree holder may be put in possession of the lands under decree namely survey Nos. 52/1, 52/2, 133/3, 47/6, 48/6 and 53/1B, etc. immediately. It was alleged that all these properties except land survey No. 53/1 have been converted to non agricultural lands and, therefore, it is not now necessary to send the decree to the Collector for 14 effecting partition. It was alleged that the defendant No. 7 and 8 have absolutely no existing interest in any of the suit properties, as the same have been illegally disposed of by them. It was further alleged that layouts have been prepared of lands in question and on some part of it, buildings have also been constructed. It was alleged that there is no question of making reference to the tenancy Court and accordingly prayer was made. There was no order passed on this application and it remained pending. 12. The plaintiff No. 2/decree holder No. 2 Mahadu Narayan Pawar filed writ petition No. 1597/2002 before this Court on 15.02.2002, claiming direction to the respondent No. 2, the Collector Ahmednagar, to effect partition and actually separation of shares as provided under Section 54 of Civil Procedure Code in the matter of Special Darkhast No. 57/1977 referred by the learned Civil Judge Senior Division, Ahmednagar and to report accordingly to the executing Court within specified time. It was further prayed that Civil Judge Senior Division, Ahmednagar be directed to dispose of Special Darkhast No. 57/1977, expeditiously. In this writ petition appellant Sharad Premraj Mutha and Anandram Chandmal Munot were joined as intervenors as per order dated 12.07.2004 passed on Civil Application No. 5077/2004 in the said writ petition. However, there was no order passed on the application for intervention filed by the appellant No. 1 Mrs. Mangla Sharad Mutha. 15 This Court by its judgment and order dated 12.07.2004 directed the Civil Judge Senior Division, Ahmednagar to transmit the Special Darkhast immediately to the Collector, Ahmednagar for execution in accordance with law. The Collector was personally directed to execute the decree, instead of transmitting it to subordinate officers and to complete the proceeding within a period of one year and to report the compliance to this Court. In para 7 of the said judgment, this Court observed as under : "Since we are not keeping the petition pending here, all other contentions which the parties are eligible to raise, may raise them in the execution proceedings before the Collector. We make it clear that the Collector may adjust the equities to the extent of they are possible to be adjusted." 13. That on 12.08.2004 the learned Civil Judge Senior Division, Ahmednagar transmitted Special Darkhast No. 57/1977 to the Collector Ahmednagar for execution. On 13.11.2004, the Collector called report from the Tahsildar in respect of the issues of tenancy framed by this Court in First Appeal Nos. 78/1958 and 79/1958. On 13.04.2005 the Tahsildar submitted his report, in substance holding that the defendant Nos. 7 and 8 have surrendered their tenancy rights in the year 1952 in respect of survey Nos. 52/1, 52/2 and 53/1B and since then their tenancy has come to an end. This order of the Tahsildar was challenged in 16 appeal under Section 247 of Maharashtra Land Revenue Code before the Sub Divisional Officer, Ahmednagar by one Vishawas Dattatraya Athare, the Court Receiver, by filling Tenancy appeal No. 01/2005 to which all the original defendants and their successors/legal representatives were joined as respondents/non applicants. The said appeal was dismissed by an order dated 24.07.2006, by the learned Sub Divisional Officer, Ahmednagar holding that in view of the order passed by this Court to effect partition it is not possible to issue notices to several parties and decide the appeal. 14. It seems that on 13.09.2005 the appellant No. 1 filed application for recall of the order passed in writ petition No. 1597/2002 by this Court on 12.07.2004 which was dismissed by this Court. Against this order also Special Leave Petition was preferred before the Apex Court and the same was also dismissed. The appellants/objectors, thereafter, moved an application dated 07.12.2005 before the Collector raising several objections to the executability of the decree and sending the matter back to the Civil Court for correction of decree. According to the objectors, who are the appellants before this Court, it was not the correct precept, which was forwarded by the Civil Court to the Collector for execution. According to the appellants/objectors, the Special Darkhast No. 57/1977 contained various properties, which were required to be deleted as per the decree modified by this Court, in 17 aforesaid two first appeals. It was also alleged that the decree was not amended in the light of orders passed below Exh. 14, Exh. 17 dated 21.12.1981 and Exh. 21 on 09.03.1998, by the executing Court. Keeping in view all the objections which were raised, the Collector Ahmednagar forwarded the entire record to the Civil Court under his covering letter dated 21.06.2006, with a request to carry out necessary amendments and corrections in the original decree, as it had become impossible to execute the decree due to various complications. On 22.06.2006 the learned Civil Judge Senior Division, Ahmednagar to whom the said letter was sent passed an order holding that the Court has become functuous officio and as per the order passed in writ petition NO. 1597/2002, the Collector was required to take all suitable steps for executing the decree under Section 54 of Civil Procedure Code. The learned Civil Judge again transmitted the entire record and proceedings to the Collector by observing that it is not possible for him to accept the proceedings unexecuted. 15. Upon receipt of such proceedings from the Civil Court, the Collector passed an order on 25.08.2006, effecting partition of the suit properties and delivering possession to the concerned parties in accordance with law. The statements were prepared by Taluka Superintendent of Land Records, Ahmednagar. By this partition 7/8 th share in all the nine properties and house property was assigned to 18 plaintiff No. 1 and 2, whereas, 1/8 th share in all such properties was assigned to defendant No. 1 and other defendants, as per the decree passed by the Trial Court. 16. Being aggrieved by the aforesaid order of the Collector, several appeals were preferred before the Commissioner, by the persons who claimed themselves to be owner and in possession of the portion of the properties, which were the subject matter of the partition. The learned Additional Commissioner, Nashik Division, Nashik by his common order dated 31.05.2007, remanded the matter back to the Collector for inquiry afresh and decision therein within a period of three months after giving an opportunity to all the parties. It was noted by the Additional Commissioner in his order that the objections raised to the executability of the decree, were required to be decided in the light of various provisions of Civil Procedure Code, more particularly Order XXI Rule 16. The same were not decided and, therefore, the matters were remanded back to the Collector. 17. The legal heirs of plaintiff No. 2/decree holder No. 2 Mahadu Narayan Pawar filed writ petition No. 3636/2007 before this Court in which several appellants/objectors were arrayed as party respondents. This petition was heard and finally decided on 05th September, 2007 by the learned Single Judge of this Court. The said writ petition was 19 dismissed and the order of remand passed by the Additional Commissioner on 31.05.2007, was maintained. It was observed in para 17 of the judgment, that the appeals filed before the Additional Commissioner were maintainable and the objectors were entitled to raise the contentions before the Collector, and the collector was bound to consider the same. The contention that, it was not open for the respondents to raise objections before Collector, was rejected. It was alleged that the decree passed in Special Civil Suit No. 13/1956, as was amended by the judgment and order passed in first appeal Nos. 78/1958 and 79/1958 was required to be executed. It was further held that the orders passed below Exh. 14 and 17, in Special Darkhast No. 57/1977 were also required to be taken into consideration along with the fact that certain lands were declared as slum areas. It was further observed that in view of mandate of Order XXI Rule 16 of Civil Procedure Code, the assignee of the decree was entitled to same conditions, as the decree holder. It was also held that the executing Court on a erroneous premise held that he became functuous officio and refused to issue order or clarify and refer the proceeding to the Collector.