:1: :1: :1: srp. HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4355 OF 2007. WRIT PETITION NO. 4355 OF 2007. WRIT PETITION NO. 4355 OF 2007. 1. Shantilal K. Shah, Age: 57 years, C/o: Jagdish Agencies, AGra Rd, Opp. Lal Chowky, Kalyan, Dist: Thane. 2. Sanjay Chandrakant Shah, R/o: 1232, Success Chambers, Deccan Gymkhana, Pune. 3. Manohar Achyut Katdare, R/o: 1348, Sadashiv Peth, Pune - 411 030. ..Petitioners. V E R S U S 1. Principal Secretary, Govt. of Maharashtra, Revenue & Forest Dept., Mantralya, Mumbai -32. 2. The Collector, Thane. 3. The Sub Divisional Officer, Kalyan, Dist: Thane. 4. The Tahasildar, Kalyan, Dist: Thane. 5. Kausalyabai Lalchand Bhatiya. 6. Mahesh Lalchand Bhatiya. 7. Naresh Lalchand Bhatiya. 8. Kanchan Lalchand Bhatiya. 9. Nisha Hasanand Waswani. 10. Jyoti Ramesh Bhatiya. Respdt. Nos. 5 to 10 heirs and L.Rs. of late Lalchand Bhatiya. ..Respondents. --- Mr. Girish S. Godbole for the petitioner. Mr. V. N. Tayade for the respondent nos. 5 to 9. Mr. S. R. Nargolkar A.G.P. for the State - respondent nos. 1 to 4. CORAM: S.B.MHASE & S.S.SHINDE, JJ. CORAM: S.B.MHASE & S.S.SHINDE, JJ. CORAM: S.B.MHASE & S.S.SHINDE, JJ. DATE : March 31, 2008. DATE : March 31, 2008. DATE : March 31, 2008. Oral Judgment (Per S.B.Mhase,J.). Oral Judgment (Per S.B.Mhase,J.). Oral Judgment (Per S.B.Mhase,J.). :2: :2: :2: 1. Rule returnable forthwith. Heard both sides. 2. The dispute pertains to the land admeausring 5-acres from Survey No. 35 of village - Kambe, taluka Kalyan District Thane. The total area of the survey No. 35 is 55 acres and 34 gunthas. Out of that, 5 acres land which was allotted to one Lalchand Bhatiya, the predecessor-in-title of the respondent nos.5 to 10 is subject matter of the present writ petiton. 3. It appears that Survey No. 35 was Inam land and the same inam was abolished by the Bombay Personal Inam Abolition Act, 1952. The predecessor- in-title of the petitioner has puchased the said land by sale deed dated 9th October 1987. However the dispute arose in between the Government and the predecessor-in-title of the petitioner in respect of the resumption of the land and therefore the predecessor-in-title of the petitioner filed a suit, being Regular Civil Suit No. 21 of 1961 in the Court of the Civil Judge, Senior Division, Thane seeking declaration that the plaintiff - petitioner is owner of the said land and by way of consequential relief the decree for permanent injunction was sought. However, the said suit was dismissed by the judgment dated 21.11.1962 by the CJSD, Thane. . Being aggrieved and dissatisfied with the :3: :3: :3: said judgment and order the predecessor-in-title of the petitioner filed Civil Appeal 54 of 1963 which was decided by the Extra Assistant Judge, Thane by passing a judgment and order dated 29th July 1968. The said first appeal was allowed and order of the dismissal of the plaintiff’s suit was set aside. The Plaintiffs (Petitioners) were declared to be the owners of the suit property. It was also declared that the lands do not vest in the State Government under Section 7 of the Bombay Peronsal Inam Abolition Act. The Defendant (Government) was permanently restrained from interferring with the plaintiff’s enjoyment of the suit property. 3. The Government being aggrieved and dissatisifed with the said decision preferred second appeal being Appeal No. 193 of 1969 before this High Court. The said appeal was admitted on 7th February 1969 and it was dismissed on 31st August 1976. As against that the Govenrment filed Civil Appeal No. 2565 of 1980 before the Apex Court and the Apex Court dismissed the said appeal on 18th August 1998. Thus, the ultimate result is that the decree passed in favour of the present petitioner in First Appeal No. 54 of 1963 passed by the Extra Assistant Judge, Thane on 29th July 1968 stands confirmed upto the Supreme Court and resultanly there is a decree that the plaintiff - petitoners are the owners of the suit propety and the :4: :4: :4: land does not vest in the Government in view of section 7 of the Bombay Personal Inam Abolition Act, 1952, and the Government is permanently restrained from interferring with the plaintiff’s - petitioner’s enjoyment of the suit property. 4. It is not disputed at bar that the Government challenged the decree passed in First Appeal No. 54 of 1963 by filing second appeal No. 163 of 196l in this Court and there was no stay granted by this Court to the said decree even though the second appeal was admitted on 7th February 1969. Equally there was no stay when the matter was before the Apex Court. However, when the second appeal was pending, on 15/5/1973 the Government allotted 5-acres of land out of Survey No. 35 to Lalchand Bhatiya being a freedom fighter and on that basis the name of the allottee - Lalchand Bhatiya was entered into the revenue record. After the death of Lalchand Bhatiya the names of the respondent nos. 5 to 10 have been recorded in the revenue record. However, the fact remains that the decree passed in First Appeal No. 54 of 1963 was operative as against the Government and therefore the Government could not have done anything which will affect the enjoyment of the property by the petitioners. In fact that allotment was made by the Government when the lis was pending between the parties, namely, when the second appeal No. 163 of :5: :5: :5: 1961 was pending before this Court. Therefore, that allotment of the land admeasuring 5 acres in favour of Mr. Lalchand Bhatiya, the predecessor-in-title was only on paper, and since the respondent no.1 - the Government of Maharashtra was having the control in respect of the revenue record they could make mutations in the 7/12 extracts of the land. However, if we take into cosnideration the decree of the first appeallate Court, it appears that the petitoners are declared as owner of the property and they are in possession of the property and the Government was restrained from interferring with the petitioner’s possession of the suit property. Said Mr. Lalchand Bhatiya and respondent nos. 5 to 10 who claim the said property, are ultimately claiming through the Government. And, when it is decided upto Apex Court that the Government does not have title over the suit property, naturally by the allotment which is made by the Government in favour of Lalchand Bhatiya there was no transfer of the interest. Therefore, the respondent nos. 5 to 10 are not entitled to the enjoyment of the said property. Ultimately, the decree passed by the First Appellate Court stands and it is admitted position that it is confirmed upto the Supreme Court. Therefore taking into consideration all these facts and cirucmstances we find that the allotment of 5-acres of land made by the Government of Maharashtra on 15/5/1973 in favour of Mr. Lalchand Bhatiya was improper and illegal because :6: :6: :6: basically the Government does not have the title to transfer the said land and there is a decree of the Civil Court declaring the petitioner as owner of the suit land and the land does not vest in the Government in view of provision of Section 7 of the Bombay Personal Inam Abolition Act, 1952. Therefore, as a result of the grant dated 15/5/1973 in favour of Mr. Lalchand Bhatiya by the Government nothing is transferred to said Mr. Lalchand Bhatiya and therefoer the respondent nos. 5 to 10 do not have any interest in the property. 5. In the result, therefore we find that the petitioner succeeds. Therefore, we declare that the petitioner is owner of the land admeasuring 5 acres out of Survey No.35 which is allotted by the Government vide its order dated 15/5/1973 to said Mr. Lalchand Bhatiya. We hereby prohibit the respondent nos. 5 to 10 from entering into the said land and disturbing the peaceful possession of the petitioners. 6. However, in the facts and circumstances of the case we find it appropriate to observe that the Government may consider the claim of the respondent nos. 5 to 10 and allot them any other land available with the Government in lieu of the land which was allotted to their predecessor in title by order dated 15/5/1973. Writ petition is accordingly disposed of. :7: :7: :7: (S.S.SHINDE, J.) (S.B.MHASE, J.) (S.S.SHINDE, J.) (S.B.MHASE, J.) (S.S.SHINDE, J.) (S.B.MHASE, J.) :2008/sss/...