Bombay High Court
Sushma Nandkumar Dudhewar vs Gulab Pandurang Deshmukh Kalyankar on 5 February, 2020
Author: Rohit B. Deo
Bench: Rohit B. Deo
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wp176220.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1762 OF 2020
Sow. Sushma w/o Nandkumar Dudhewar Petitioner
Versus
Gulab s/o Pandurang Deshmukh & others Respondents
Mr.V.J.Dixit, Senior Counsel i/by Mr.S.V.Dixit, advocate for the
petitioner.
Mr.R.S.Deshmukh, advocate for Respondents No.1 to 4.
Mr.S.W.Munde, AGP for Respondents No.5 & 6.
CORAM : ROHIT B. DEO, J.
DATE : 05th February, 2020. P.C. : 1 The petitioner is the original plaintif who brought suit
seeking declaration, injunction and rectifcation of the sale deed.
2 In short, the contention of the plaintif is that her father purchased land G.No.151 from the father of defendant no.1 and mistakenly, the sale deed referred to land G.No.130.
3 The defendants strongly denied the plaint averments pointing out that since the execution of the sale deed dated 09.03.1998, the mutation done at the instance of the plaintifs refers to the suit property as G.No.130 and not G.No.151. The ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 ::: {2} wp176220.odt contention of the defendants is that is only when the National Highway Authority acquired land G.No.151, that the plaintif set up a false plea of a mistake in the sale deed dated 09.03.1998, since she was lured by the sizable compensation.
4 The plaintif sought an injunctive relief seeking to restrain the defendants from disturbing her possession qua the land, which the plaintif refers to G. No.151. Both the Courts below have concurrently held against the plaintif. Both the Courts below have held that the prima facie record overwhelmingly indicates that the plaintif purchased land G.No.130 and not land G.No.151. The appellate Court dealt with the issue, thus:
"15 Considered rival contentions in the light of documents fled by both sides on record. The four boundaries mentioned in sale deed dated 09-03-1998 and the gift deed dated 17-
11-1998 appears to be the same. To substantiate her case, the appellant herein must show that the four boundaries of the land mentioned in sale deed dated 09-03- 1998 are that of land Gut No.151. For the purpose, the appellant sought to rely on copy of "tonch map". Considered said "tonch map"
in the light of the four boundaries mentioned ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 ::: {3} wp176220.odt in sale deed dated 09-03-1998. In said sale deed, Shiv of Khadkut is hown towards North. However, in tonch map, a road of Khadkut is shown towards north and the Shiv of Khadkut is shown towards East of Gut no.130. In tonch map, towards north side of Gut no.151, a road of Khadkut is shown. Such road is also shown towards north side of Gut no.130.
16 Further, as per said sale deed, towards East, there is remaining land of seller (Pandurang Kalyankar). In tonch map, there are land Gut nos.132 and 133 towards East of land Gut no.151. The appellant however brought nothing on record to show that those land Gut nos.132 and 133 belongs to Pandurang Kalyankar. Further, in said sale deed, towards South, there is land of Gulabrao Pandurang. However, in tonch map, there is land Gut no.150 towards South. The appellant has fled no document on record to show that said land Gut no.150 belongs to Gulabrao Pandurang. In sale deed, towards West, there is Nanded-Ardhapur road. In tonch map, one such road is shown towards West of land Gut No.151. Except it, all other boundaries mentioned in "tonch map" appears to be diferent from that of mentioned in said sale deed as well as Gift deed referred above. In other words, it appears that the boundaries mentioned in said sale deed as well as Gift ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 ::: {4} wp176220.odt deed appears to be not similar to that of land Gut no.151.
17 In addition to above, it is pertinent to mention here that in sale deed dated 09-03- 1998, the father of appellant shown to have purchased 50 R. land out of total area of 1 H. 46 R. of Gut no.130. The same property appears to have been gifted by him to the appellant vide Gift deed 17-11-1998. The appellant herein claims that the said 50 R. area of the land is of land Gut no.151. However, notably, as per revenue record, the total area of land Gut no.151 is shown as 6 H. 87 R. and not 1 H. 46 R. Rather, the revenue record shows that the total area of land Gut no.130 is 1 H. 46 R. This prima facie shows that the land purchased by the father of appellant was 50 land from Gut no.130 out of area 1 H. 46 R. In these circumstances, the contentions raised by the appellant cannot be accepted.
18 Before granting the equitable relief of injunction, the conduct of party seeking such relief also needs to be considered. In present case, after sale deed dated 09-03-1998 and Gift deed dated 17-11-1998, the appellant had applied for mutation of Gut no.130 and such mutation was issued in her name. For years together i.e. till fling such in the year 2018, ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 ::: {5} wp176220.odt the appellant never raised any objection nor sought correction of the document of sale/gift deed. The consistent entries in revenue record of land Gut no.130 refects name of the appellant as an owner/possessor of said land Gut no.130. Throughout this period i.e. from 1998 till fling Civil Suit in the year 2018, the appellant nowhere raised any objection for such mistake. As per appellant, she got knowledge of said mistake when the respondent no.5 to 8 proposed acquisition of some area of land Gut no.151. From record, it appears that the joint measurement of said land Gut no.151 was carried out by respondent no.5 to 8 on 08-08-2016. It means, the appellant had got knowledge of her possession over land Gut no.151 on 08- 08-2016. Despite this, on 06-12-2016, the appellant sought and obtained mutation of land Gut no.130 and not Gut no.151. The conduct of appellant mentioned above disentitle her to get the equitable relief of injunction.
5 I have heard the learned Senior Counsel Shri Dixit for the petitioner and Shri Deshmukh, learned Counsel for Respondents No.1 to 4, at length, and having done so, I am of the considered view that the issue can only be adjudicated after the evidence is recorded. The plaintif would have to prove, by ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 ::: {6} wp176220.odt adducing evidence, that the recital in the sale deed is a mistake.
However, considering that both the Courts below have prima facie found against the plaintif, I do not consider it necessary to interfere in the writ jurisdiction. However, it is noted that the learned Counsel for defendant no.1, Shri Deshmukh, has stated that the possession of the plaintif over the land, which is the subject matter of the sale deed dated 09.03.1998 and gift deed dated 17.11.1998, shall not be disturbed. Indeed, the learned Counsel Shri Deshmukh states that at no point of time was any attempt made to disturb the possession of the plaintif over the land, which is the subject matter of the aforesaid two documents.
6 According to Shri Deshmukh, learned Counsel for Respondents No.1 to 4, the dispute is arisen only because the plaintif has set up a case that G.No.130 was wrongly recorded in the sale deed and the gift deed, of which rectifcation is sought.
Shri Deshmukh, learned Counsel for Respondents No.1 to 4, is at pains to emphasize that the case of the defendants is that there is no mistake in the aforesaid two documents and what is sold to the father of the plaintif, under the sale deed dated 09.03.1998, is land G.No.130 and not G.No.151.
::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 :::{7} wp176220.odt 7 In this view of the matter, while recording the aforesaid statement, this Court would request the learned trial Court to decide the pending suit, as expeditiously as possible and in any event, within twelve months.
8 Petition is disposed of.
ROHIT B. DEO JUDGE adb ::: Uploaded on - 07/02/2020 ::: Downloaded on - 08/02/2020 00:04:12 :::