CRA 240/2004 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 240/2004 1 Vinayak Krishnarao Botwe, Age : 37 years, Occu. Service. 2 Chandrakant s/o Krishnarao Botwe, Age : 32 years, Occu. Service, 3 Mrs. Vaishali w/o Balkrishna Kale, Age : 27 years, Occu. Household All R/o 10, Nilayam society, Sajjanwadi, Mulund (east), Mumbai. 4 Mrs. Ashalata w/o Shrikant Rajhans, Age : 37 yeas, Occu. Service, R/o Plot No. 18, Rajnagar, Shahnoorwadi, Dargah Road, Aurangabad. ...Applicants. Versus 1 Vasant s/o Sitaram Shivpuri, Age : 60 years, Occu. Nil, R/o Jai Galli, Paithan,Dist. Aurangabad. 2 State of Maharashtra, (Formal party) ...Respondents. Shri Sharad V. Natu, Advocate for applicants. Shri V.I. Thole, Advocate for respondent no.1 absent. CORAM : A.V. NIRGUDE, J. Date : 15th February, 2011. ORAL JUDGMENT:- 1 This revision is challenging the order dated 4th September, 2004 passed by V th Adhoc Additional District Judge, Aurangabad in Miscellaneous Civil Appeal No. 15/2002. The respondent was the appellant before lower Court. He had challenged CRA 240/2004 2 the judgment and order passed by Civil Judge (Senior Division), Aurangabad in Miscellaneous Civil Application requiring judicial enquiry No. 112/1996 dated 29/08/2001 refusing to grant succession certificate to him. 2 The facts leading to the litigation are as under. The respondent filed a petition for grant of succession certificate on the ground that he is the only nearest relative of one Pralhad Vishnu Shivpuri who had died on 16th December, 1976. He said that the amount of Rs.15,305/- is lying deposited in the Tahsil office of Paithan and the deceased Pralhad was entitled to receive the amount. So, in order to receive the amount, the respondent sought the succession certificate. The applicants opposed the application saying that the respondent had no concern with the amount. They pointed out that the amount was deposited as Eksala lavani (yearly cultivation fee) in respect of certain land. This land they said, was a Atiyat Inam granted to the predecessor of deceased Pralhad. They stated that the Atiyat Court held that they are the successor of deceased Pralhad in respect of the land. 3 The learned Civil Judge accepted this contention and refused to grant succession certificate to the respondent. The learned District Judge however held that on facts the respondent is the close relative of deceased Pralhad and so he should be given the succession certificate. The learned District Judge in so many words agreed to the preposition that it is the Atiyat Court and is the competent authority to decide question about the succession, in respect of the Atiyat Inam. The learned District Judge even recorded in her judgment that the applicants were declared as successors of deceased Pralhad after due inquiry by the Atiyat Court. She further CRA 240/2004 3 noted that the appeal against the said decision is pending. However, she erroneously concluded that since the appeal was pending against the judgment and order passed by the Atiyat Court, the same was not final but instead of waiting for the appellate authority to decide the question which was squarely within their jurisdiction, the learned District Judge erroneously gave her finding on facts that the respondent is the nearest relative of deceased Pralhad and so was entitled to the succession certificate. The learned District judge could not have decided as to whether the applicants or the respondent is the successor of the deceased Pralhad. Because the subject matter, the amount lying in the Tahsil office is directly related to the Inam land. The Atiyat Court exclusively had jurisdiction to decide the issue of succession and so either the learned District Judge should have waited for the outcome of the appeal filed against the judgment and order of the Atiyat Court or should have directed the parties to abide by the out come of the appeal for the purpose of claiming the amount. 4 I am told across the Bar that when the learned District Judge delivered the judgment in year 2004, the appeal against the Atiyat Court was not even pending. I am told that way back in 2001 the appeal was dismissed and the order of Atiyat Court was confirmed by the appellate authority namely Maharashtra Revenue Tribunal. I am also told that the respondent was party to this appeal being the appellant. I am also told that the appellant did not carry the matter further. In view of the finality of the decision delivered by the Atiyat Court in respect of the succession of deceased Pralhad that too in respect of the land which had given rise to the amount involved in this case, the respondent has no right to claim the succession certificate. CRA 240/2004 4 The revision should therefore, succeed. ORDER a) The revision application stands allowed. b) The impugned order dated 4th September, 2004 passed by Vth Adhoc Additional District Judge, Aurangabad in Miscellaneous Civil Appeal No. 15/2002 is set aside. c) The order passed by the trial Court in M.A.R.J.I. No. 112/1996 dated 29/08/2001 refusing to grant succession certificate to the respondents stands confirmed. d) In view the disposal of C.R.A., Civil application No. 0383/2009 stands disposed of. [A.V. NIRGUDE, J.] ts k/ok