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2017 Supreme(Bom) 71
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Sanjay Manya Ludrik and Ors. - Petitioners
Versus
Hon'ble Addl. Commissioner Konkan Division and Ors. - Respondents
WRIT PETITION NO. 5614, 5616 OF 2015
Decided On : 18-01-2017
For the Petitioners: Mr. P K Dhakephalkar, Mr. A P Mhatre
For the Respondent: Mr. S.L. Babar, Mr. Prashant Chavan, Navdeep Vora
Headnote:Maharashtra Land Revenue Code, 1966 - Section 149-Mutation entries.-Mutation entries are based on title to property and aspect of possession is totally irrelevant.
Section 149 of the Maharashtra Land Revenue Code is widely worded and takes within its sweep various types of transactions mentioned therein and even "otherwise" of which cognizance is required to be taken by revenue authorities. Hence if a person has a decree in his favour the cognizance of the same is required to be taken by the revenue authorities.
The revenue authorities who have passed orders against the petitioners seem to be swayed by the aspect of possession of the property in question. Insofar as the Mutation Entries are concerned they were based on title the aspect of possession is totally irrelevant. The only fact which is important is the document on the basis of which a party claims title to the property.
In the instant case the petitioners are claiming title to the said lands on the basis of the decree which is in their favour passed by a competent Court which decree, has become final and binding. Insofar as the respondent Nos. 4 to 6 and 8 are concerned, they may oppose the execution of the said decree on such grounds as are available to them and permissible under law which undoubtedly would be considered by the Executing Court. However, the same cannot further delay the mutation of the names of the petitioners in the revenue record.
1. Rule in both the above Petitions, with the consent of the learned counsel for the parties made returnable forthwith and heard.
2. The above Petitions take exception to the orders both dated 27/05/2015 passed by the Secretary and Officer on Special Duty (Appeals), Revenue and Forest Department, Government of Maharashtra (“Secy. & OSD” for short), by which orders the revision applications filed by the Petitioners herein came to be dismissed and resultantly the order dated 25/04/2012 passed by the Additional Commissioner, Konkan Division, came to be confirmed.
3. Since the Writ Petitions involve common facts and raise an identical challenge though concerning different plots of land i.e. in Writ Petition No.5614/2015 the land in issue is Survey No.193 and in Writ Petition No. 5616/2015 the land in issue is Survey No.194 they are heard together however the facts in Writ Petition No.5614 of 2015 would be referred to for the sake of convenience.
4. The Petitioners predecessors are one Manya Loru Ludirk and Parshya Ludrik who purchased the lands in question being Survey Nos.193 and 194 of village Nilemore, Tal. Vasai, Dist. Thane from the original owners one Ichalal Jagmohan Das and Jamna Das Mangal Das. The Petitioners are the heirs of the said Manya and Parshya. After the said purchase, Mutation Entries being Mutation Entry Nos. 648 and 657 came to be made in favour of the predecessors of the Petitioners in respect of the said lands. After the purchase by the Petitioners, it seems that the said property was alleged to be purchased by one Thomas Antony Dis alias Dias in an auction which was held pursuant to the decree passed in Suit No.57 of 1941. It seems that two Mutation Entries being Nos.838 and 2444 were effected in the revenue record in favour of the said Thomas Antony Dis alias Dias. The Petitioners after acquiring knowledge of the said Mutation Entries came to know about the purchase of the said Thomas Antony Dis alias Dias. The Petitioners along with their mother Smt. Ushibai Ludrik filed a suit being Regular Civil Suit No.318 of 1986 for a declaration of title and for injunction. The Defendants therein amongst whom was the said Thomas Antony Dis alias Dias were served, however, they chose to remain absent in the said suit. The Trial Court by the judgment and order dated 22/11/1994 dismissed the said suit. The Petitioners aggrieved by the said dismissal preferred an Appeal being No.54 of 1996 in the District Court at Palghar. The said Appeal came to be allowed by the learned 2nd Additional District Judge, Palghar and resultantly the suit in turn came to be decreed thereby granting declaration in favour of the Petitioners and also granting injunction against the Defendants therein. The Petitioners thereafter have filed execution proceedings being Regular Darkhast No.33 of 2008 which proceedings are pending till date. In the said execution proceedings the Respondent Nos.5 and 6 preferred an application for intervention and also sought rejection of the execution proceedings. The said application was rejected by the Executing Court. However, the Executing Court framed an issue about the possession of the suit property to be decided by the Executing Court. Aggrieved by the order passed by the Executing Court, the Petitioners filed a Writ Petition in this Court being Writ Petition No.9675 of 2012. A learned Single Judge of this Court by order dated 17/12/2014 set aside the order passed by the Executing Court by observing that the Executing Court could not have framed the said issue and thereby go beyond the decree. It seems that pending the execution proceedings the Petitioners herein had preferred an application before the Sub Divisional Officer, Bhiwandi for their names being entered in the revenue record in respect of Survey Nos.193 and 194. The Sub Divisional Officer acted upon the said letter and directed the Tahsildar Vasai to enter the names of the Petitioners in the revenue record. It seems that the Tahsildar in
