wp5119-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5119 OF 2011 Shri Maruti Bhaurao Shinde (since deceased through his heirs and Lrs.) 1) A . Gangubai Maruti Shinde & Ors. ... Petitioners. (Org.Applicants) V/s. 1. Shankarsing Dadagir Gosavi & Ors. ... Respondents. --- Mr. Anilkumar Patil for the Petitioners. Mr. Kishor Patil i/by Pramod N. Joshi for the Respondent No.1. Ms. Aparna Vhatkar, AGP for the Respondent Nos. 2 and 3. --- CORAM:- G. S. GODBOLE, J. DATED :- 19th DECEMBER, 2011. P.C. : 1 Heard Mr. Anilkumar Patil for the Petitioners, Mr. Kishor Patil for the Respondent No.1 and learned AGP for Respondent Nos. 2 and 3. 2 Since there is clear error apparent on the face of the record in last paragraph of the impugned order dated 14.02.2011 passed by the Additional Commissioner, Nasik Division, Nasik, without relegating to the Petitioners to an alternate remedy of filing Second Revision wp5119-11.sxw 2 Application under section 257 of the MLR Code, 1966, this Petition is being entertained and decided. 3 Rule. By consent of the parties, Rule is made returnable forthwith. Mr. Kishor Patil, Advocate, waives service on behalf of Respondent No.1 and learned AGP waives service on behalf of Respondent Nos. 2 & 3. 4 Following facts are not in dispute : One Balu Dadagir Gosavi, real brother of Respondent No.1, had filed RCS No. 27/2002 in the Court of learned Civil Judge, Junior Division, Niphad for specific performance of the alleged Agreement for Sale dated 03.10.1984 with a contention that the Agreement was executed for the benefit of the said Balu Dadagir Gosavi (Original Plaintiff in RCS No. 27/2002) and Shankarsing Dadagir Gosavi (Original Defendant in the said Suit) by Defendant No.1 -Maruti Bhaurao Shinde. In the said Suit an Application for temporary injunction was filed below Exh. 5 which was rejected by the learned CJJD, Niphad by Judgment and Order dated 12.02.2002 and it was held that the said Balu or Respondent No.1 Shankarsing were not in possession. Aggrieved by that order, original Plaintiff Balu Gosavi filed Misc. Civil Appeal No.13/2002, wp5119-11.sxw 3 which was dismissed by the learned ADJ, Niphad by order dated 14.12.2004. 5 Thereafter, the Suit was decided on 21.03.2009. The learned 2nd Joint CJJD, Niphad dismissed the Suit by recording a finding that the possession had not been handed over pursuant to the Agreement for Sale. Aggrieved by this, the Plaintiff- Balu and Defendant No.2 have filed Regular Civil Appeal No 56 of 2009 in the Court of the learned ADJ, Niphad in which Application Exh. 5 was filed for interim reliefs, which was dismissed by the learned Adhoc District Judge, 2nd, Niphad by order dated 23rd July, 2009. The said Application is pending. 6 In the meantime, Resident Nayab Tahsildar, Niphad had passed an order dated 29.05.2000 and the name of the Respondent No.1 was directed to be recorded in the cultivation column. This order was challenged by Maruti Bhaurao Shinde by filing RTS Appeal No. 131/2000 before the Sub-Divisional Officer, Niphad which was allowed. Respondent No.1 filed RTS Appeal No. 339/2001, which was dismissed by the Additional Collector, Nasik by order dated 23.07.2002. However, RTS Revision Application No. 221 of 2002 filed by the Respondent No.1 was allowed wp5119-11.sxw 4 by the Additional Commissioner, Nasik Division, Nasik on 16.04.2003. Aggrieved by that order, Maruti Bhaurao Shinde filed the Writ Petition No. 5601 of 2003 which was dismissed by the learned single Judge S.A. Bobde, J. by observing that in accordance with the decision of the Civil Court, the Petitioner- Maruti Shinde would be at liberty to apply for change in the revenue record. It appears that immediately thereafter without waiting for the decision of the Civil Suit, the orders, including the earlier order dated 16.04.2003 passed by the Additional Commissioner were challenged by the deceased Maruti Shinde by filing Appeals and Revision Application under the MLR Code, 1966. By the impugned order dated 14.02.2011, the learned Additional Commissioner, Nasik Division, Nasik has dismissed the Revision Application. A perusal of the last paragraph of the impugned order clearly shows that the learned Additional Commissioner has proceeded on a complete mis-conception of facts about the civil proceeding. In the civil proceeding it has been held that Balu Dadagir Gosavi and Shankarsing Dadagir Gosavi have not proved their alleged possession. The Additional Commissioner has, however, recorded a finding which is exactly contrary to the aforesaid factual aspect of the matter. Hence, on that ground alone this Writ Petition deserves to succeed. wp5119-11.sxw 5 7 Accordingly, the Writ Petition is allowed. The impugned Judgment and Order dated 14.02.2011 in RTS Revision Application No.54 of 2005 is hereby quashed and set aside and the Additional Commissioner is directed to hear and decide the said Application afresh on its own merits. All the contentions of both the parties including the contention of the Respondent No.1 in respect of the maintainability of the fresh proceedings initiated by the Petitioner are kept open. [G. S. GODBOLE, J.]