Bombay High Court
Akhtarbi Abdul Gaffar And Others vs Taj Mohammad Sher Khan And Others on 8 January, 2020
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETN. NO. 3400 OF 2017
Akhtarbi Abdul Gaffar and others
-Vs.-
Taj Mohammad Sher Khan and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. Shahid Syed, counsel h/f Mr. Mohd.Moin, counsel for the
petitioners.
Mr. Raheel J. Mirza, counsel for respondent No.1.
Mr. Nikhil Joshi, AGP for respondent Nos.6 to 9.
CORAM : MANISH PITALE, J.
DATE : 08.01.2020 By this writ petition, the petitioners have challenged order dated 08/08/2016 passed by respondent No.9- Additional Commissioner, whereby a review application filed by respondent No.1 was allowed and earlier order passed by the very same Authority dated 28-29/07/2015 was set aside.
2. The brief facts leading to the present writ petition are that the petitioners herein were aggrieved by two mutation entries made in the records by the Talathi pertaining to a property with which the dispute is concerned. The said property was initially sold by the original owner i.e. Sher Mohamad Khan, who was the father of the contesting parties, in favour of his wife KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 2/9 Liyakatbi by registered sale deed dated 14/04/1980 as mehar at the time of marriage, as a result of which the said Liyakatbi became the owner of the said property. On 06/07/1999, the said Liyakatbi executed a Will bequeathing the said property in favour of her husband Sher Mohamad Khan and upon her demise on 05/02/2000, the mutation entry No.1382 was certified by the Talathi on 23/09/2000, thereby recording the name of Sher Mohamad Khan in respect of the said property in the record of rights. The said Sher Mohamad Khan executed a registered Will in respect of the said property dated 29/07/2004 in favour of his son i.e. respondent No.1 herein. It is undisputed that the petitioners are the daughters of the said Sher Mohamad Khan and sisters of respondent No.1. Respondent Nos.2 to 5 are also the brothers of the petitioners herein. On 08/09/2004, the said Sher Mohamad Khan died and consequently on the basis of the said Will dated 29/07/2004, respondent No.1 approached the Talathi and mutation entry No.1640 dated 12/11/2004 was certified recording the name of respondent No.1 in the record of rights in the context of the said property.
3. In the year 2013, the petitioners filed an appeal before the Sub-Divisional Officer challenging the said two mutation entries, claiming that in terms of the procedure contemplated under the Maharashtra Revenue Code, 1960 (hereinafter referred to as "the Code"), notices were never issued to them by the Talathi before making the said KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 3/9 mutation entries and that therefore, the said mutation entries deserved to be set aside. The Sub-Divisional Officer passed an order dated 31/07/2014 allowing the appeal filed by the petitioners, thereby setting aside the said mutation entries. The Sub-Divisional Officer further gave a direction that the names of all the heirs be taken in the record of rights.
4. Aggrieved by the same, respondent No.1 filed appeal before the Additional Collector. By order dated 24/03/2015, the said Authority allowed the appeal of respondent No.1 and set aside the order of the Sub- Divisional Officer, as a result of which the mutation entries stood restored.
5. Aggrieved by the same, the petitioners filed appeal before the Additional Commissioner. By order dated 28/07/2015, the Additional Commissioner allowed the appeal filed by the petitioners and set aside the order of the Additional Collector and the order of the Sub-Divisional Officer was restored. In this order, the Additional Commissioner commented upon the Will deeds referred to above and gave a finding that since the Will in question was under challenge, a probate certificate was required to be obtained by respondent No.1 to claim benefit under the said Will.
6. The respondent No.1 filed a review application before the Additional Commissioner, specifically raising a KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 4/9 ground that such observations made by the Additional Commissioner in the aforesaid order were unjustified and they amounted to deciding an issue that was beyond the jurisdiction of the said Authority as a Revenue Officer under the provisions of the aforesaid Code. It is relevant that the reasoning given by the Additional Commissioner in his order dated 28/07/2015 were in a handwritten portion and it was this portion that was specifically objected to by respondent No.1.
7. By the impugned order dated 08/08/2016, the Additional Commissioner found that an error had occurred in the aforesaid earlier order specifically in the reasoning portion that was handwritten and that comments had been made in the said order in an unjustified manner as to the legality or otherwise of the registered Will. On this basis, by exercising review jurisdiction, the Additional Commissioner allowed the review application filed by respondent No.1 and set aside the aforesaid earlier order dated 28/07/2015.
8. The petitioners have approached this Court challenging the said order passed on the review application by the Additional Commissioner.
9. The learned counsel appearing for the petitioners contended that the basic grievance raised by the petitioners was not properly adverted to and appreciated by the Authorities below. The said grievance, according to the learned counsel for the petitioners, was that the Talathi had KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 5/9 violated the mandate of section 150(2) of the aforesaid Code while taking the said two mutation entries, as no notice was ever issued to the petitioners, who were certainly interested persons in the said property. According to the learned counsel for the petitioners, this fundamental flaw committed by the Talathi while taking the said mutation entries, vitiated the process of taking mutation entries and that therefore, the order of the Sub-Divisional Officer in the facts and circumstances of the present case was justified. It was further submitted that no case for exercise of review jurisdiction under section 258 of the said Code was made out by respondent No.1 and that therefore, on the said ground also the impugned order deserved to be set aside.
10. On the other hand, the learned counsel appearing for respondent No.1 submitted that a proper appreciation of the procedure contemplated under sections 149 and 150 of the aforesaid Code would show that when entries were said to be made in the record of rights on the basis of specific documents like the Will deed in the present case, there was no necessity for the Talathi to have issued notices to the petitioners or other siblings of respondent No.1.
11. It was further submitted that if at all the petitioners had any objection to the mutation entries so made, they could have raised an objection under section 150(3) of the Code and the procedure provided therein would then have KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 6/9 followed. It was in fact contended that appeal before the Sub-Divisional Officer itself was not maintainable since the act of taking mutation entries by the Talathi could not be said to be a decision or an order. It was further submitted that the petitioners had deliberately suppressed the fact that a civil suit was already filed in July, 2015 by the petitioners in respect of the said registered Will deed and that therefore, grievances, if any, of the petitioners could be addressed before the Civil Court in the pending suit.
12. Learned Assistant Government Pleader appeared for respondent Nos.6 to 9-State Authorities.
13. Heard learned counsel for the rival parties and perused the material on record. In the present case, the two mutation entries made on 23/09/2000 and 12/11/2004, were both based on Will deeds that were executed by Liyakatbi and Sher Mohamad Khan. A perusal of sections 149 and 150 of the Code would show that the Talathi is expected to make mutation entry on the basis of a report submitted orally or in writing by any person, who acquires interest in the property in question. In the present case, in the first instance, it was Sher Mohamad Khan, who had approached the Talathi for entry of his name in the record of rights on the basis of Will dated 06/07/1999 executed by his deceased wife and subsequently respondent No.1 had approached the Talathi on the basis of the registered Will dated 29/07/2004, executed by the said KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 7/9 Sher Mohamad Khan in his favour. It is nowhere the case of the petitioners that the said documents were not placed on record before the Talathi when the said applications were made for carrying out the mutation entries. The emphasis placed by the petitioners on section 150(2) of the Code, in the facts and circumstances of the present case, is misplaced, because the said mutation entries were made by the Talathi on the basis of the documents placed on record in the form of the said Will deeds. In such situation, the Talathi had hardly any reason to issue notices to all the siblings of respondent No.1 before making mutation entries. In any case, under section 150(3) of the Code, if the petitioners had any objection to the entries so made by the Talathi, they could have raised the objection before the Talathi, who would have then made a note that such entries were disputed entries and then the procedure contemplated under section 150(4) of the Code would have been followed. It is an admitted position that the petitioners never raised any such objections and that they directly filed an appeal before the Sub-Divisional Officer challenging the mutation entries so made. In the facts and circumstances of the present case, this Court is not entering into the question as to whether the appeal filed by the petitioners before the Sub-Divisional Officer was maintainable or not.
14. The whole basis of the order passed by the Sub- Divisional Officer in favour of the petitioners was obviously KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 8/9 fallacious, because the emphasis was on alleged failure of the Talathi to issue notices to all the interested persons before making the said mutation entries. In the face of the registered Will deed dated 29/07/2004 executed in favour of respondent No.1, the only course available to the petitioners was to challenge the said registered Will deed in appropriate proceedings before the Court of competent civil jurisdiction. It is an admitted position that such a suit was already filed in July, 2015 and that the same is pending adjudication. In such circumstances, the order dated 28-29/07/2015 passed by the Additional Commissioner needs to be appreciated.
15. Perusal of the same would show that while holding in favour of the petitioners, the Additional Commissioner commented upon the said registered Will deed executed in favour of respondent No.1 and insisted that the probate certificate be obtained by him before reliance could be placed upon the same for making mutation entries. This approach adopted by the Additional Commissioner was clearly erroneous, particularly in the backdrop of the civil suit already filed by the petitioners before the Civil Court.
16. Therefore, no error can be attributed to the impugned order passed by the Additional Commissioner, wherein review jurisdiction was exercised and it was found that the appeal filed by the petitioners could not have been allowed. It was found that the manner in which the appeal KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 ::: wp3400.17.odt 9/9 was allowed clearly demonstrated that the order dated 28-29/07/2015 went beyond the scope of jurisdiction by the Additional Commissioner as a revenue authority exercising jurisdiction under the provisions of the Code. It is on this basis that review jurisdiction was exercised and the review application was allowed, as a result of which the order dated 28-29/07/2015 stood set aside and the order of the Additional Collector passed in favour of respondent No.1 stood restored.
17. This Court does not find any error in the approach adopted by the Additional Commissioner while exercising review jurisdiction in favour of respondent No.1 and therefore, the writ petition is found to be without any merit and accordingly it is dismissed. No costs.
JUDGE KHUNTE ::: Uploaded on - 13/01/2020 ::: Downloaded on - 08/06/2020 06:38:26 :::