Bombay High Court
Eknath Nana Shinde vs Shankarappa Chanbasappa Shindgi & ... on 5 August, 1998
Equivalent citations: AIR1999BOM22, 1998(4)BOMCR490, (1999)1BOMLR650, 1999(1)MHLJ381, AIR 1999 BOMBAY 22, (1998) 4 ALLMR 3 (BOM), (1999) 1 CIVILCOURTC 475, (1999) 1 MAH LJ 381, (1999) 1 MAHLR 391, (1999) 2 CIVLJ 257, (1999) 3 CURCC 255, (1998) 4 BOM CR 490, 1999 (1) BOM LR 650, 1999 BOM LR 1 650
ORDER A.V. Savant, J.
1. Heard both the learned Counsel, Shri Sali for the petitioner and Shri Mengane for respondent No. 2, None appears for respondent No. 1, though served.
2. This petition demonstrates the highly objectionable manner in which the claim of an accident victim was sought to be defeated by the respondents, obviously acting in collusion with some revenue officer, as will be evident from the facts set out below. What has been challenged in this petition is the Order dated 8th February 1989 passed by the Motor Accident Claims Tribunal, Solapur, (for short, 'Tribunal') below Exhibit-23 in M.A.C.P. Darkhast No. 11 of 1986. The relevant facts are as under :-
3. The petitioner was working as a clerk in the Postal Department at the Kasba Peth Post Office in Pune. On 4th October 1978, he went to his friend Shelar at Chinchwad, near Pune. While returning, at about 1 a.m. on 5th October 1978 the auto-rickshaw in which he was travelling was hit by a truck belonging to the first respondent Shankarappa Shindgi. The truck bearing No MHU. 5266 was driven by its driver Gangappa Nagappa Sanganwar. The truck was insured with the United India Fire & General Insurance Company Limited. As a result of the accident, the petitioner was thrown on the road and suffered severe injuries. He was removed to the K.E.M. Hospital at Pune straightaway from the place of impact. After a detailed treatment he was discharged on the 14th of March, 1979. He has lost his faculty of speech as a result of the shock and the injury suffered in the accident, which was caused on account of rash and negligent driving of the truck by its driver Gangappa Sanganwar, who was employed by the first respondent Shankarappa Shindgi.
4. On the 3rd July 1979 Application No. 136 of 1979 under section 10-A Sic 110- A of the Bombay Motor Vehicles Act, 1939 was filed claiming compensation of Rs. 2, 44, 162, 52. The Tribunal vide its judgment and order dated 5th January 1982 awarded an amount of Rs. 1,08,770/- together with interest at the rate of 6% per annum from the date of the application viz. from 3rd July 1979 till the date of realisation. The costs of the proceedings were awarded to the petitioner. Out of the amount of Rs. 1,08,770/- the Insurance Company which had insured the truck viz. the United India Fire and General Insurance Company Limited was directed to pay a sum of Rs. 50,000/- to the petitioner. The remaining amount of Rs. 58,770/- was ordered to be paid by the first respondent Shankarappa Shindgi and his driver Gangappa Sanganwar. Against the Award dated 5th January 1982, there is no appeal.
5. Though initially M.A.C.P. Darkhast No. 11 of 1986 was filed claiming an amount of Rs. 1,08,770/-, in view of the payment Rs. 50,000/- by the Insurance Company to the petitioner, the darkhast was amended and was restricted to the amount of Rs. 58,770/- together with interest at the rate of 6% per annum from the date of the application till the amount was realised. Out of this amount, unfortunately nothing has been paid by the respondents to the petitioner as yet.
6. As stated at the outset, the petition is against the Order dated 08-02-1989 passed by the Tribunal, Solapur, under which the application Exhibit-23 for raising an attachment, which application was treated to be under Order XXI, Rule 58 of the Code of Civil Procedure, has been allowed. The application was made on 26-2-1988 by the second respondent Vivekanand, who is the son of the first respondent Shankarappa. It is interesting to note that in execution of the award initially the truck bearing Registration No. MHO. 5266 belonging to the first respondent Shankarappa was attached in accordance with the provisions of Order XXI, Rule 43 of the Code of Civil Procedure. It is not clear as to how the attached truck was permitted to be sold by the first respondent. The record in the present proceedings does not indicate the position clearly, nor is any one of the two Counsel able to clarify this aspect. Be that as "it may, the truck which was attached was not available for being put to sale in execution of the award as a decree. However, on 23-5-1978 the first respondent Shankarappa purchased land bearing Gat No.488/1 admeasuring 2 Hectares 41 Ares situate at village Maindargi, Taluka Akkalkot, District Solapur, for a consideration of Rs. 33,000/- from Gurupadappa Deolappa Savli. Mutation Entry No. 224 was effected in favour of respondent No. 1 Shankarappa on 21st December 1978 on the basis of the Sale-Deed dated 23rd May 1978. The said mutation was certified on 16-2-1979. This land bearing Gat No. 488/1 admittedly belonging to the judgment -debtor was attached in accordance with the provisions of Order XXI, Rule 54 C.P.C.
7. It is elementary that an immovable property like the land Gat No. 488/1, which was purchased by the first respondent for Rs. 33,000/- on 23rd May 1978 could not have been transferred to his son- respondent No. 2, except by way of a conveyance executed and registered in accordance with law. Admittedly, there is no conveyance in favour of the second respondent. However, only Mutation Entry No. 816 has been effected showing the name of the second respondent Vivekanand, minor by his guardian mother Nagammabai Shankarappa Shindgi. The entry has been effected on the 2nd September 1997 and certified on the 18th September 1997. I will deal with the said entry a little later. Surprisingly, on the basis of this mutation entry No. 816, respondent No. 2 Vivekanand made an application on 26th February 1988, which has been treated by the Tribunal as an application under Order XXI, Rule 58 C.P.C.. for raising attachment of immovable property viz. Gat No. 488/1. Respondent No. 2 stated in the application that Gat No. 488/1 belonged to him. The source of this title was not disclosed in the application. There is no reference to the Mutation Entry nor any document on the basis of which Mutation Entry No. 816 is alleged to have been effected. A bald statement is made in para 1 of the application that the land was standing in the name of applicant and hence, the attachment was wrong and illegal. The endorsement made on 9th March 1988 by the Tribunal below this application would show that even the 7/12 extract was not annexed alongwith the application purportedly to be an application under Order XXI, Rule 58 C.P.C. The Power of Attorney of the person who had made the affidavit was not produced, though the application was supposed to have been made on behalf of the minor.
8. On the 2nd December 1988 the petitioner filed his objection at Exh.34. The petitioner contended that Gat No. 488/1 belonged to the first respondent Shankarappa. He had acquired title under the registered Sale-Deed 23rd May 1978, Mutation Entry No. 224 was effected in Shankarappa's name on 21st December 1978, which was certified on 16th February 1979. It was specifically contended that the second respondent was not the owner of the said land. In para 4 it is contended that Mutation Entry No. 816 cannot confer any title in the absence of any document or title such as gift, sale etc., which has to be a registered document. It was, therefore, contended that Mutation Entry No. 816 was null and void and the said mutation entry cannot confer any title on Vivekanand. In the circumstances, it was pleaded that the application for raising the attachment was not maintainable.
9. In para 8 of his say, the petitioner contended that the respondents had practised fraud on the Court and were trying to defeat the claim of the petitioner and delay the execution of the decree. In para 11, on the ground that the claim of respondent No. 2 was false, vexatious, frivolous and illegal, petitioner claimed compensatory costs.
10. The learned District Judge (since retired), who acted as Ex-officio Member of the Tribunal has categorically recorded a finding that the petitioner's contention that the property belonging to the first respondent could not be transferred to his son-respondent No. 2 in the absence of any Registered Deed of Conveyance was ostensibly sound. The property was the self-acquired property of respondent No. 1. There is no case of any joint family or partition pleaded by the second respondent. The Tribunal further observed that though the land was not transferred or conveyed to Vivekanand by the father, it was mutated in the name of Vivekanand under some order passed by the District Collector-cum-Deputy Director, Rehabilitation (Lands), Solapur, which order was not on record. Still, the Tribunal observed that the fact remained that there was a change in the name and such change was given effect to by the Revenue Circle Inspector by effecting Mutation Entry No. 816 dated 2-9-1987, which was certified on 18-9-1987. It was on such impermissible premise in law that, unfortunately, the Tribunal held that the application filed by the second respondent for raising the attachment was maintainable. In the circumstances, the application Exhibit-23 dated 26-2-1988 was allowed and the land Gat No. 488/1 standing in the name of the second respondent was ordered to be released from attachment. It is this order which is challenged before me.
11. Shri Sali, the learned Counsel appearing for the petitioner, contended that the order is wholly unsustainable and contrary to the well established principles of law. Admittedly, the property Gat No. 488/1 is the self-acquired of the first respondent Shankarappa. There is no registered conveyance in favour of the second respondent. A mutation entry cannot divest title from the first respondent and vest it in the second respondent in the absence of any document of title, which there is none in the facts of the present case. Counsel further contends that the Tribunal did not have even a copy of the order passed by the District Collector on the basis of which the Revenue Circle Inspector had made Mutation Entry No. 816. The respondents had obviously played a fraud not only on the petitioner, but on the Court in procuring Mutation Entry No. 816 and making an application under Order XXI, Rule 58 of the C.P.C. for raising the attachment and the Tribunal has fell into gross error of law and jurisdiction in entertaining such an application.
12. On the other hand, Shri Mengane appearing for the second respondent tried to support the findings in the impugned order. His contention was that if the land was mutated in favour of the second respondent and Mutation Entry No. 816 was effected on the basis of some order passed by the District Collector, that was enough for the Tribunal to uphold the second respondent's application under Order XXI, Rule 58 C.P.C. for passing an order of raising the attachment. Shri Mengane could not dispute the proposition that immovable property could not have been transferred by merely getting a mutation entry effected without any document of title.
13. I must accept the submissions of Shri Sali. There cannot be any controversy that the land, Gat No. 488/1, which was the self-acquired property of the first respondent, which he had purchased for Rs. 33,000/- on 23rd May 1978 could not be transferred in favour of his minor son by merely effecting Mutation Entry No. 816. There is no conveyance, much less, any registered document transferring the said land to the second respondent. No case of any partition or family arrangement is pleaded. The order dated 10th August 1987, on the basis of which the Revenue Officer is alleged to have made the Mutation Entry No. 816 was not even produced before the Tribunal. The Tribunal specifically observed in its order as under:-
"Ostensibly, this contention sounds well, but on scrutiny, carries little weight.
The other copy of Record of Rights (Exh. 37/2) shows that the land has not been transferred or conveyed to Vivekanand by his father Shankarappa, but it came to be mutated in the name of the objection petitioner by virtue of the order of the District Collector-cum-Deputy Director, Rehabilitation (Lands), Solapur. What that order of the District Collector-cum-Deputy Director. Rehabilitation (Lands), Solapur, is, is not on record, but the fact is that exchange on the name of the objection petitioner same to be made by him only, which change was given effect by the Revenue Circle Inspector, by Mutation Entry No. 816 dated 18-9-1987".
14. It is really unfortunate that a Tribunal headed by a District Judge should have recorded finding to the above effect, which has the result of defeating the claim of a poor accident victim. The claim of the second respondent was wholly unsustainable in law. It is not disclosed as to how did the second respondent acquired the property: who paid the consideration? and what was the mode of transfer by respondent No. 1 to respondent No. 2. It is strange that the truck bearing Registration No. MHO. 5266 belonging to the first respondent, which was initially attached, was permitted to be sold by the first respondent even before the decree was satisfied. The first respondent purchased the land and secretly got it mutated in favour of his minor son and put him up by way of an application under Order XXI, Rule 58 C.P.C. without any legal evidence in support of the title of the second respondent, the Tribunal headed by a District Judge accepted the claim of the second respondent and ordered the attachment to be raised. The result is that though the accident claim has been decreed on 5-1-1982, barring the amount of Rs. 50,000/- paid by the Insurance Company, not a paisa has been paid by the first respondent, who has been held liable to pay Rs. 58,770/- together with interest at the rate of only 6% p.a. from the date of application i.e. 3rd July 1979 till realisation.
15. In the circumstances, I am left with no alternative, but to quash and set aside the Order dated 8th February 1989 which is not only illegal and wholly unsustainable, but which, in my view, is clearly perverse in law. Accordingly, the Order dated 8-2-1989 passed by the M.A.C.T. Solapur, below Exhibit-23 in M.A.C.P. Darkhast No. 11 of 1986 is hereby quashed and set aside. The land Gat No. 488/1, situated at Maindargi, taluka Akkalkot, District Solapur will continue to remain under attachment in M.A.C.T. Darkhast No. 11 of 1986 in respect of the claim of Rs. 58,770/- together with interest at 6% p.a. from 3rd July 1979 till realisation.
16. Since the accident had occured on the 5th October 1978 i.e. nearly 20 years ago, I direct the Executing Court to take up M.A.C.P. Darkhast No. 11 of 1986 for hearing and final disposal on a priority basis and dispose of the same in accordance with law as expeditiously as possible. Both Shri Sali and Shri Mengane agree to appear before the Tribunal, at Solapur, on Monday, the 12th October 1998 for fixing the Schedule of hearing in the said darkhast proceedings.
17. In the view I have taken, I have no doubt that the respondents have played a fraud in procuring Mutation Entry No. 816 mutating the land in favour of respondent No. 2 without any document of title. What was unfortunate was that the Tribunal recorded a finding that though immovable property could not be transferred except by way of a registered conveyance, nevertheless the property was transferred under a mutation entry pursuant to the order of a District Collector. What that order was, was not on record. Even in the absence of such an order sanctioning Mutation Entry No. 816, the Tribunal accepted the claim of the second respondent. The result is that the victim of an accident claim who is to get a partly amount of Rs. 58,770 with a meagre interest at the rate of 6% per annum from 3rd July 1979 has not yet got a single paisa for the last 18 years, apart from the amount of Rs. 50,000/- paid by the Insurance Company. As far as respondent No. 1 is concerned, he has paid nothing to the petitioner. In the circumstances, I direct respondent No. 1 to pay an amount of Rs. 10,000/- towards costs of this petition to the petitioner within a period of eight weeks from today.
18. When this petition was admitted, there was an interim order in terms of para 12(e). In the view that I have taken, the interim relief in terms of prayer(e) is made absolute till the final disposal of M.A.C.P. Darkhast No. 11 of 1986. It is made clear that in the event of the said property Gat No. 488/1 being required to put to sale in execution of the Award and Decree dated 5-1-1982, the same can be made in accordance with law.
19. Rule is made absolute in the above terms with costs of Rs. 10,000/- as per the directions in para 17 above.
20. Issuance of Certified Copy expedited.
21. Rule made absolute.