Concord Co-operative Housing Society vs Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 285

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sarang V. Kotwal, J.
Concord Co-operative Housing Society and others - Applicants
Versus
Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat and others - Respondents
Civil Revision Application No. 285, 406 of 2022, Writ Petition No. 6701 of 2022, Writ Petition (Stamp) No. 13161 of 2022, Interim Application No.17880 of 2022 In Civil Revision Application No. 285 of 2022, Interim Application No.30238, 17863 of 2022 In Writ Petition No.6701 of 2022, Interim Application No.30237, 17861 of 2022 In Writ Petition [St] No.13161 of 2022, Interim Application No.3302 of 2023 In Civil Revision Application No.406 of 2022
Decided On : 25-04-2023

Advocates:
Advocate Appeared:
For the Applicant :Mr. G.S. Godbole, Senior Advocate i/b. Shivraj R. Patne, a/w. Shon Gadgil
For the Respondent:Mr. R. D. Soni i/b. Karan Parmar, Mr. Virag Tulzapurkar, Senior Advocate i/b. Hitanshu Jain, Mr. Surel Shah, Advocate i/b. Chaitanya Nikte, Mr. Mayur Khandeparkar, Advocate i/b. Sumedh Ruikar

Headnote:
MRTP Act - Section 2(7) - Code of Civil Procedure, 1908 - Order XXI Rule 2 - Section 54 - Actual Possession - Questions of law - Claim to be legal heirs - Challenged - Sale in execution - Sale certificate - Civil Suit - Partition and separate possession - Whether decree is taken to be preliminary or final - Held, It cannot be overlooked that at present some construction is made on suit properties and many flat purchasers have paid their hard earned money for purchasing flats - In fight for ownership of land they are unfortunately getting adversely affected - Fortunately both sides have shown sensitivity to issue - Submitted that there is still sufficient open land available and therefore Collector can effectively make partition without affecting structure - In this not necessary to make any further comment except expressing hope and trust that Collector at an appropriate stage will keep interest of flat purchasers in his mind in giving effect to precept sent to him - It is clarified that Collector shall act in accordance with law by following due procedure - Petition Disposed of.

JUDGMENT :

1. All these matters are decided by this common judgment because all the parties agree that all these matters involve common questions of law and are based on the common history regarding the facts and the disputed facts. In all these matters, notices were issued for final disposal. All the parties were duly served with such notices and learned Counsel appearing before me agree that the matters can be decided finally at this stage.

2. I have heard Shri G.S. Godbole, learned Senior Counsel for the Applicants in CRA No.285/2022, Shri S. M. Gorwadkar, learned Senior Counsel for the Petitioner in WP No.6701/2022, Shri Anil Anturkar, learned Senior Counsel for the Petitioner in WP(St) No.13161/2022, Shri R. D. Soni, learned counsel for the Applicant in CRA No.406/2022, Shri Virag Tulzapurkar, learned Senior Counsel, Shri Surel Shah, and Shri Mayur Khandeparkar, learned counsel , for the respective contesting Respondents.

3. C.R.A. No.285/2022 is preferred by Concord Co-operative Housing Society and its Chairman & Treasurer. The society claims to be the owner of the property.

4. Writ Petition (Stamp) No.13161/2022 is filed by Venkatesh Landmark, through its Partners, who are developing the property by making construction on the property.

5. C.R.A. No.406/2022 is filed by Yashcon Urban Development LLP, through its Partner. The Applicant claims to be owner of a part of the subject properties.

6. Writ Petition No.6701/2022 is filed by one of the members of the Concord Co-operative Housing Society.

7. The contesting Respondents, in all these matters, claim to be the legal heirs of one Amedmal Indrabhan Bhatewada. In all these matters, the Applicants/Petitioners have challenged the order dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division, Pune in Civil Misc. Application No.1658/2021. In C.R.A. No.285/2022, further prayers are made for permission to file certain documents which were not available at the time of passing of the impugned order in the Court of 10th Jt. Civil Judge, Senior Division, Pune.

Subject properties :

8. The dispute is about the following properties :

a] Land bearing Survey No.214, Hissa No.1/1 admeasuring 00 Hectare 97 Ares + pot kharaba 0 Hectare 02 Ares, assessed Rs.0.94, situated at village Lohegaon, Taluka– Haveli, District–Pune.

b] Land bearing Survey No.214, Hissa No.1/4 admeasuring 1 Hectare 15 Ares, assessed Rs.1.06/-, situated at village Lohegaon, Taluka–Haveli, District–Pune.

(Both these properties together are hereinafter referred to as ‘the subject properties’).

9. Brief history and facts :

i. The subject properties were originally owned by one Bapu Kashiba Devkar. He died on 27.3.1939. After that, those subject properties were held by his heirs Shankar Bapu Devkar and Kisan Bapu Devkar. Their names were entered by Mutation Entry No.1942.

ii. Amedmal filed Small Causes Suit No.4658/1935 against Shankar Bapu Devkar for recovery of money. The suit was decreed.

iii. Darkhast No.560/1937 was filed by Amedmal for executing the decree in Suit No.4658/1935, in which half undivided share of Shankar was attached and was put up for sale in execution.

iv. On 19.12.1939, Amedmal Bhatewada purchased Shankar’s share in the subject properties in the Court auction. His name was added in the Other Rights column in the record of rights by Mutation Entry No.2027, but, it was without possession.

v. On 20.1.1940, the sale was confirmed by the Executing Court and the Sale Certificate No.65/1940 was granted to the decree holder Amedmal.

vi. On 1.9.1940, Mutation Entry No.2027 was made on the basis of the sale certificate and Amedmal’s name was recorded in Other Rights column.

vii. In 1944, Amedmal Bhatewada filed a suit for partition bearing Civil Suit No.955/1944 against Shankarao Devkar and Kisan Devkar (hereinafter referred to as ‘the said suit’).

viii. The suit was decreed vide the judgment and order dated 27.10.1945 (hereinafter referred to as ‘the said decree’). By the said decree, Amedmal Bhatewada was declared to