1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 3398 OF 1998 *** Smt. Anjanabai D/o Jagdeorao & wife of Sadashiv Suryawanshi, Age: Major, Occu.: Agriculture and household, R/o Majara (Kh), Tq. Hadgaon, Dist. Nanded. ... PETITIONER. Versus 1. The State of Maharashtra. Copy to the served on Govt. Pleader, High Court of Judicature of Bombay, Bench at Aurangabad. 2. The Additional Commissioner, Aurangabad Division, Aurangabad. 3. The Additional Collector, Nanded. 4. Sub Divisional Officer, Kinwat, Dist. Nanded. 5. The Tahsildar, Hadgaon, District: Nanded. 6. Sahebrao S/o Ramchandra Suryawanshi, Age: major, Occu.: Agriculture, R/o Kanjara (Kh) Tq. Hadgaon, Dist. Nanded. 7. Raju S/o Ganpatrao Lavand, Age: 25, Occu. Agri., R/o Koigaon, Tq. Hadgaon, Dist. Nanded. 9. Meerabai W/o Rangrao Chavan, Age: , Occ. Agri. R/o Wadgaon, (Bk), Tq. Hadgaon, Dist. Nanded. ... RESPONDENTS *** 2 Mr. S. B. Ghatol Patil, Advocate for the Petitioner. Mr. D. R. Korde, A.G.P. for the Respondent/ State Authorities. Mr. V. D. Patnoorkar, Advocate for Respondent No.6. Mr. S. R. Bagal, Advocate for Respondent Nos.7 and 8. *** CORAM: B. P. DHARMADHIKARI, J. DATED:- 5th APRIL, 2011. ORAL JUDGMENT: 1. Heard learned Advocate Shri Ghatol Patil for the Petitioner, Advocate V. D. Patnoorkar for Respondent Nos.6, Advocate Shri S. R. Bagal for Respondent Nos.7 and 8 and learned A.G.P. Mr. Korde for Respondent Nos.1 to 5. 2. Impugned order is passed by Additional Commissioner, Aurangabad on 30th June, 1998 allowing revision filed under section 257 of Maharashtra Land Revenue Code preferred by present Respondent No.6. 3. Shri Ghatol Patil has, after narrating facts in brief, contended that the ownership of deceased husband of Petitioner viz. Sadashiv was never in dispute and relationship of Petitioner as his wife was also not in dispute. Hence, after his death, property has 3 been rightly mutated in the name of his wife/ petitioner. Belated objection raised almost after thirty years by Respondent No.6 staking claim to suit property is, therefore, unsustainable. He contends that the remedy of civil Court used by Additional Commissioner to throw out the claim of petitioner is in fact required to be invoked by Respondent No.6. 4. He further contends that Petitioner is now about 80 years of her age and as she is not physically fit to manage cultivation, she sold the property in dispute to her relatives viz. Respondent Nos.7 and 8. Those respondents are managing the suit field and are maintaining her. He invites attention to orders dated 13th July, 2011 passed by this Court in Civil Application NO.3221 of 2000 protecting possession of the petitioner. He also states that apart from Respondent Nos.7 and 8 there are other purchasers to whom the property has been sold by separate sale deeds. 5. Shri Bagal is supporting the arguments of petitioner. 6. Learned A.G.P. for Respondent Nos.1 to 5 also supports the order of Additional 4 Commissioner. According to him, as some complicated questions arise, the Additional Commissioner has rightly found that parties must be left free to get the same resolved through civil Court. 7. Shri Patnoorkar states that the alleged decree obtained in 1960 was never implemented or acted upon. It remained a paper decree and for the first time, after death of her husband in 1991, petitioner tried to obstruct possession of Respondent No.6 and also tried to obtain mutation in her favour. He argues that right from the year 1960 till 1991-92 the property was under ownership of and in cultivation of Respondent No.6. In this view of the matter, he supports findings of Additional Commissioner. 8. After hearing respective counsel, I find that filing of a suit by husband of petitioner through his mother (guardian) in 1960 and obtaining a consent decree in that suit on 30th November, 1960 is admitted position. The suit property was, therefore, declared to be property belonging to said Sadashiv and in his possession. The 5 relationship of petitioner with said Sadashiv is not disputed by anybody and said Sadashiv expired in 1991. After his death, petitioner attempted to obtain mutation of her name against suit fields and then the dispute started. 9. Records also show that Sadashiv was insane and, therefore, in 1960 suit, he was represented by his mother as his next fried. In this situation, after his death, when his widow wanted her name to come on record, it is difficult, at this stage, to accept that Sadashiv or present petitioner were not in possession from 1960 till then. 10. Admittedly, today the petitioner is in possession and Respondent No.6 is out of possession. 11. Hence, the status of decree obtained in 1960, its alleged implementation or non- implementation, the credibility of revenue records from 1960 till 1991-92 and thereafter, are the various questions which need to be answered. The questions also require evidence to be adduced. As there is a decree in favour of deceased husband of petitioner and 6 relationship of petitioner and her husband is not in dispute, it is clear that it is Respondent No.6 who has to file appropriate suit in the matter. However, considering subsequent developments i.e. sale deeds executed by Petitioner in favour of her so called close relatives it is necessary to direct the petitioner and purchasers from her, not to create any third party interest and not to encumber suit property till such suit is filed by Respondent No.6. 12. Needless to mention that impugned order, which has the effect of deleting name of petitioner from revenue records, is unsustainable. The said order dated 30th June, 1998 is hereby quashed and set aside. However, it is made clear that this shall not prejudice consideration of controversy. in any way, by civil Court. 13. Respondent No.6 is given time till 30th of June, 2011 to file such suit as he may be advised before competent forum for redressal of his grievance. Till then, neither the petitioner nor Respondent Nos. 7 and 8 or other purchasers from her, shall create any 7 third party interest or other encumbrances on the suit property to the prejudice of claim of Respondent No.6. 14. Writ petition is thus partly allowed. Rule is made absolute accordingly. No costs. 15. In view of final disposal of the writ petition, nothing further survives in Civil Application No.11771 of 2009 and the same stand disposed of accordingly. [B.P.DHARMADHIKARI, J.] Dated:05/04/2011. ans/3398 8 WRIT PETITION NO.: 3398 OF 1998 Date of decision: 05th APRIL, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE B. P. DHARMADHIKARI. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial ... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE