Shridhar Shahaji Gadhekar, L.Rs. Radhabai Motiram Raut and Others v. the Additional Commissioner, Aurangabad Division and Others

Bombay HC16 Apr 2013WP/1223/2013

Case brief

AI extract

What is this about?

This court rejected a writ petition challenging the handing over of lands. The bench held that while actual possession was given for unlet lands, symbolic possession for tenanted lands adhered to a prior civil decree. Thus, the petition was found to have no merit.

What did the court decide?

None granted; the writ petition was rejected.

Shridhar Shahaji Gadhekar, L.Rs. Radhabai Motiram Raut and Others… — Partition | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1223 OF 2013

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Shridhar s/o Shahaji Gadekar,
Died through legal heirs:

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1A.Radhabai w/o Motiram Raut,
Age: 30 years, Occ: Household,
R/o. Sillod, Tq. Sillod,

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Dist. Aurangabad

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and others. ...PETITIONERS

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 VERSUS

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The Additional Commissioner,
Aurangabad Division,

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Aurangabad and others ...RESPONDENTS

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...

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Mr. Niteen V. Gaware, Advocate for petitioners.
Mr. D.V. Tele, A.G.P. for Resp. Nos. 1 to 6.
Mr. A.D. Kasliwal, Advocate for Resp. Nos. 7 and
9.

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...

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CORAM : S.S. SHINDE, J.

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 RESERVED ON : 12-04-2013
 PRONOUNCED ON : 16-04-2013

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PER COURT :

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.This writ petition is filed with

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following prayers:-

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(A) Call for Record and proceedings of the case.

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(B) Quash and set aside the impugned order dated 28-01-2013 passed by the Respondent No.1 - Additional Commissioner, Aurangabad in Revision No. ROR/Rev/20/2011 (Exhibit-N), and for that purpose issue necessary order. (C) Pending hearing and final disposal of this Writ Petition, grant stay to the operation, execution and/or implementation of the impugned order dated 28-01/2013 passed by the Respondent No.1 - Additional Commissioner, Aurangabad in Revision No. ROR/Rev/20/2011 (Exhibit-N), and for that purpose issue necessary orders. (D) Pending hearing and final disposal of this Writ Petition, grant an injunction, restraining the Respondent No. 1 to 6 from dispossessing the petitioner No. 2 Ramesh Salkaram Gadhekar and petitioner Nos. 1-A to 1-G from land Gut No. 418, petitioner No. 3 Shivram Langote from land Gut Nos. 419and 422 and Petitioner Nos. 3 and 4 from land Gut No. 423, situated at Gadhejalgaon, Tq. and Dist. Aurangabad and for that purpose necessary orders. (E) Grant ad interim relief in terms of prayer clauses "C" & "D".

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(F) Pass such other and further order as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case .

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2.The learned Counsel appearing for the

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petitioners invited my attention to the order
passed by the Tahasildar, Aurangabnad at Exhibit-H
page Nos. 90 and 91 of the compilation of the writ
petition. He further invited my attention to
Exhibit-L Page 107 of the compilation of the writ
petition and also panchnama dated 28th December,
2010 prepared at the time of handing over
possession of the suit properties in favour of the
respondent Nos. 7 and 9. The learned Counsel also
invited my attention to the impugned order passed
by the Additional Commissioner, Aurangabad
Division, Aurangabad.

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3.The learned Counsel appearing for the

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petitioners relying upon the grounds taken in the
writ petition and the aforesaid documents, submits
that, the authorities while handing over the

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possession have travelled beyond the decree passed
by the 2nd Joint Civil Judge, Junior Division,
Aurangabad on 28th March, 2001 in Regular Civil
Suit No. 07 of 1973. It is submitted that, if the
panchnama dated 28th December, 2010 giving
possession to the respondent Nos. 7 and 9 is
carefully perused, physical possession of the land
from Gat Nos. 418, 419,422 and 423 appears to have

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been given to the respondent Nos. 7 and 9. The
learned Counsel appearing for the petitioners
invited my attention to the clause-3 of the order
dated 28th March, 2001 passed by the 2nd Joint
Civil Judge, Junior Division, Aurangabad in
Regular Civil Suit No. 07 of 1973 and submitted
that, the Court in the said clause observed that,
the decree be sent to the Collector, Aurangabad or
any subordinate officer deputed on his behalf for
partition and separate possession of share of
plaintiffs in the above suit lands as per Section
54 of the Code of Civil Procedure. However,
plaintiffs would not be entitled to have actual
and physical possession of land of their shares in

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tenanted lands Gut Nos. 419 and 422. Therefore,

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according to the Counsel for the petitioners,
actual and physical possession of the land of the
shares of the plaintiffs and tenanted land Gat

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Nos. 419 and 422 should not have been given by the
respondent authorities. It is submitted that, even

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the respondent Nos. 7 and 9 have stated in the
possession receipt that, they have received the
possession of the land from Gat Nos. 418, 419,422
and 423. It is submitted that, being aggrieved bny

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the said panchnama/possession receipt, the
petitioners approached the Tahasildar, however,
the Tahsildar rejected the proceedings filed by
the petitioners. It is submitted that, even the
Additional Commissioner, Aurangabad Division,
Aurangabad has not considered the prayer of the
petitioners. Therefore, he submits that, this
writ petition deserves to be allowed.

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4.On the other hand, the learned Counsel
appearing for the respondent Nos. 7 and 9 invited

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my attention to the compilation of the documents

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tendered across the bar and submitted that, the

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petitioners have not disclosed all true and
relevant facts in the writ petition. It is
submitted that, in Appeal from Order No. 204 of
2011 this Court has injuncted the petitioners from
disturbing the peaceful possession of the
plaintiffs over the land Gat Nos. 418 and 423 of
village GadhejalgaonTaluka and District

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Aurangabad. This order was challenged before the
Supreme Court by the petitioners by way of filing
Special Leave Petition No. 3728 of 2012. However,

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the said S.L.P. also dismissed by the Supreme
Court on 31st January, 2012. It is submitted that,

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the petitioners who were respondents in the said
Appeal from Order should have disclosed about the
aforesaid facts arising out of the Appeal from
Order No. 204 of 2011, however the petitioners
have suppressed the order passed by this Court in

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the said Appeal from Order No. 204 of 2011 and
also S.L.P. filed by the petitioner is dismissed

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by the Supreme Court. The learned Counsel has
tendered across the bar certified copy of the

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plaint in Special Civil Suit filed before the
Civil Judge, Senior Division, Aurangabad and
invited my attention to paragraph-10 of the said
plaint and submitted that, the respondent Nos. 7
and 9 i.e. plaintiffs in Special Civil Suit have
stated that, the Tahsildar,Aurangabad finally
fixed date on 28th December, 2010 for handing over
possession of the suit lands in R.C.S. No. 07 of
1973. Accordingly, on 28th December, 2010 Naib
Tahsildar, Aurangabad alongwith T.I.L.R. and and
subordinate staff, accompanied by police force had
been to village Gadejalgaon and after following
due process of law, handed over actual and
physical possession of lands Gat Nos. 418 and 423
to the petitioners and also handed over symbolic
possession of land Gat Nos. 419 and 422 under
panchnama. Therefore, the learned Counsel
appearing for the respondent Nos. 7 and 9 submits
that, the writ petition is devoid of any merits
and same may be rejected.

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5.I have given careful consideration to the

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rival submissions. With the able assistance of

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the learned Counsel appearing for the parties
perused the pleadings in the petition, annexures
thereto, written notes of arguments submitted by
the Counsel appearing for respondent Nos. 7 and 9,
additional documents filed by the respondent Nos.
7 and 9 and also plaint in Special Civil Suit of
2011 filed by the respondent Nos. 7 and 9 before
the Civil Judge, Senior Division, Aurangabad. At
the outset, it would be apposite to reproduce
herein below the operative part of the order
passed by the 2nd Joint Civil Judge, Junior
Division, Aurangabad in Regular Civil Suit No. 07
of 1973 dated 28th March, 2001 which reads thus :

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" The suit of the Plaintiffs is decreed with costs as under :-

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1. Each of the Plaintiff is entitled to have 1/6th share in all suit lands Gut No. 419, 422, 418 and 423.

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2. Defendant Nos. 1 and 2 also entitled to have 1/6th share each in all these

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above suit lands.

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3. Decree be sent to the Collector Aurangabad or any Sub-ordinate Officer deputed on his behalf for partition and separate possession of share of Plaintiffs in above suit lands as per Section 54 of C.P.C. However, Plaintiffs would not be entitle to have actual and physical possession of land of their shares in tenanted lands Gut No. 419 and 422.

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4. Defendant Nos. 1 and 2 be entitled for partition and separate possession of their share in suit lands on payment of Court fees stamp of their respective shares. However they would also be not entitled for actual possession of their shares in suit lands Gut Nos. 419 and 422 being tenanted property.

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5. Decree be drawn up accordingly ."

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6. Upon careful perusal of clause-3 of the

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aforementioned order, it is abundantly clear that,
the plaintiffs would not be entitled to have

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actual and physical possession of land of their

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share in tenanted lands Gat Nos. 419 and 422. The
panchnama and possession receipt at Exhibit-0 page
Nos. 116 to 118 of the compilation of the writ
petition shows that, possession of land from Gat
Nos. 418, 419, 422 and 423 for the respective
areas mentioned in the possession receipt, is
given to the respondent Nos. 7 and 9. The
contention of the Counsel for the petitioners
that, so far handing over physical possession of
land from Gat No. 418 and 423 is as per judgment

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and decree passed by the 2nd Joint Civil Judge,
Junior Division, Aurangabad on 28th March, 2001 in
Regular Civil Suit No. 07 of 1973. However, there

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was no question of handing over physical
possession of the land from Gat No. 419 and 422 to
the respondent Nos. 7 and 9 in view of the
clause-3 of the said judgment and decree. In my
opinion, in view of the statement of the
respondent Nos. 7 and 9 in paragraph-10 of the
plaint in Special Civil Suit of the year 2011
filed before the Civil Judge, Senior Division,

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Aurangabad, there is complete answer to the doubts
raised by the petitioners about panchnama and
possession receipt dated 28th December, 2010 at
Exhibit-O. Paragraph-10 of the said Special Civil
Suit reads thus :

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"10.The Petitioners submit that, on
or after rejection of W.P. No.
11393/2010. Tahesildar Aurangabad finally
fixed date 28.12.2010 for handing over
possession of suit lands in RCS No.7/73.
Accordingly, on 28.12.2010, the Naib
Tahsildar Aurangabad alongwith TILR and
subordinate staff, accompanied by police
force had been to village Gadejalgaon and
after following due process of law,
handed over actual and physical
possession of lands Gut No. 418 and 423
to the Petitioners and also handed over
symbolic possession of land Gut No. 419
and 422 under panchnama. The Petitioners
accordingly on or after receipt of
possession of the properties mentioned
above executed receipt of possession
acknowledging the receipt of possession.
The copies of panchnama and possession
receipt is filed with list of documents."

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 (Emphasis supplied).

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.Therefore,carefulreadingof

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paragraph-10 would make it clear that, what is
handed over is actual and physical possession of
land Gat Nos. 418 and 423 to the petitioners and
symbolic possession of the land Gat Nos. 419 and
422 under panchnama.

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7.In view of the discussion herein above,

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in my opinion, this writ petition deserves no
consideration, hence same stands rejected.

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 [S.S. SHINDE, J.]

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sut/Apr13

Shridhar Shahaji Gadhekar, L.Rs. Radhabai Motiram Raut and Others v. the Additional Commissioner, Aurangabad Division and Others

Case brief

What is this about?

What did the court decide?

Shridhar Shahaji Gadhekar, L.Rs. Radhabai Motiram Raut and Others v. the Additional Commissioner, Aurangabad Division and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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