1 W.P. 549/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 549/2011 Harishkumar s/o Namdeo Budhe, Age : 62 years, Occu. Service, R/o Dadh (Bk.), Tq. Rahata, Dist. Ahmednagar. ...Petitioner (Original Applicant) Versus 1 Namdeo s/o Shivram Virkar, Age : Major, Occu. Agril., 2 Chandrakant s/o Shivram Virkar, Age : Major, Occu. Agril. 3 Changdeo s/o Shivram Virkar, Age : Major, Occu. Agril. Nos. 1 to 3 R/o Talegaon Male, Tq. Kopargaon, Dist. Ahmednagar. 4 Jijabai Popat Sarode, Age : Majojr, Occu. Agril., R/o Dahegaon Boka, Tq. Kopargaon, Dist. Ahmednagar. 5 Asarabai Mohan Tagad, Age : Major, Occu. Agril., R/o Talegaon Male, Tq. Kopargaon, Dist. Ahmednagar. 6 Shobha Ramesh Vade, Age : Major, Occu. Agril., R/o Talegaon Male, Tq. Kopargaon, Dist. Ahmednagar. 7 Sunita Macchindra Gade, Age : Major, Occu. Agril., R/o Talegaon Male, Tq. Kopargaon Dist. Ahmednagar. 8 Dhrupadabai Shivram Virkar, Age : Major, Occu. Agril., R/o Talegaon Male, Tq. Kopargaon, Dist. Ahmednagar. ...Deleted. 9 The Talathi, Village Talegaon Mala, Tq. Kopargaon, Dist. Ahmednagar. 10 The Tahsildar, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar. 2 W.P. 549/2011 11 The Sub-Divisional Officer, Sangamner, Dist. Ahmednagar. 12 The Additional Collector, Ahmednagar. 13 The Additional Commissioner,Nasik Division, Nasik. ..Respondents. Mr. Rahul A. Tambe, Advocate for the petitioner. Mr. V.S. Bedre, Advocate for respondents No. 1 to 7. Respondent No. 8 Deleted. Smt. R.K. Ladda, A.G.P. for respondents No.9 to 13. CORAM : A.V. NIRGUDE, J. DATED : 7th July, 2011. ORAL JUDGMENT: 1. Rule. Rule is made returnable forthwith. 2. By consent of learned counsel for both the parties, the petition is taken up for final hearing. 3. Heard. 4. This writ petition takes exception to the order passed by the learned Additional Commissioner, Nasik in R.T.S. Revision Application No. 102/2006 whereby he had confirmed the earlier order passed by revenue officers allowing respondents No.1 to 7’s application. Respondents No. 1 to 7 made an application under section 149 of Maharashtra Land Revenue Code, 1966 for seeking additional entry in revenue record maintained as 7/12 extract of land Gat No. 307/2 belonging to the petitioner. The facts leading to this petition are admitted. The petitioner is owner and possessor of this land. The respondents No.1 to 7 asserted that they have right of preemption, in respect of this land as 3 W.P. 549/2011 against the petitioner, the owner. For asserting such right, they had filed a suit in Civil Court and the petitioner admitted such right and the Civil Court passed a decree on admission. It is thus an admitted fact that the petitioner has admitted that the respondents No.1 to 7 or their predecessor had right of preemption in respect of this land. After obtaining the decree from the Civil Court as mentioned above, the respondents No. 1 to 7 made an application for inclusion of their names in the column of 'other rights' in 7/12 extract of this land. The said application was allowed. The petitioner objected to such entry saying that although he had admitted right of preemption of respondents No.1 to 7, an entry in respect of such right is not permissible to be taken in 'other rights' column. He placed reliance on Explanation 1 of Section 149. Section 149 reads as under. 149.Acquisition of rights to be reported. Any person acquiring by succession, survivorship, inheritance, partition purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord, Government lessee or tenant of the land situated in any part of the State or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the Talathi within three months from the date of such acquisition, and the said Talathi shall at once give a written acknowledgment of the receipt of such report to the person making it. Provided that, where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the Talathi. Provided further that, any person acquiring aright with the permission of the Collector or by virtue of a registered document shall be exempted form the obligation to report to the Talathi. Provided also that, where a person claims to have acquired aright with the permission of the Collector where such permission is required under the provisions of this Code or any law for the time being in force, such person shall on being required by the Talathi so to produce such evidence of the order by which such permission is given as may be required by rules made under this Code. IV of 1882. 4 W.P. 549/2011 Explanation I. The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882. Explanation II. A person in whose favour a mortgage is discharged or extinguished or lease determined, acquires a right within the meaning of this section. Explanation III. For the purpose of this Chapter, the term `` Talathi '' includes any person appointed by the Collector to perform the duties of a Talathi under this Chapter. 5 It is clear that explanation specifically prohibits Talathi to make entry in respect of right of easement or charge not amounting to mortgage etc. to be mentioned in the revenue record. The authorities below simply refused to deal with this objection of the petitioner and reiterated that they would record entry pursuant to the decree of Civil Court. Even the affidavit of the respondent No.10, did not deal with objection raised. The learned advocate appearing for respondents No.1 to 7 still insisted on that the impugned order does not suffer from any illegality but he failed to show me any provision as to how he would justify the impugned entry in the revenue record in any of the columns of 7/12 extract. The advocate appearing for the respondents No.1 to 7 expressed his anxiety that unless his client’s right of easement is not shown in 7/12 extract, subsequent buyer of the land may not recognize the same. I am afraid, this is unfounded apprehension. In view of the decree of the Civil Court, any successor to this land, would be bound by the effect of the decree. The petition should should therefore, succeed. 5 W.P. 549/2011 ORDER The petition is allowed. The judgment and order dated 29/10/2010 passed by the respondent No.13 Additional Commissioner, Nasik in R.T.S. Revision Application No. 102/2006 is set aside. The order dated 22/04/2000 passed by the respondent No. 10, Tahildar in R.T.S. No. 379/2000 is set aside. Rule is made absolute. [A.V. NIRGUDE,J.] ts k/2011/July7/wp549.11/ok