Allowed

Panjabrao Narayanrao Naik v. the State of Maharashtra and Others

Bombay HC25 Mar 2014AO/38/2014

Case brief

AI extract

What is this about?

The appellant appealed against a trial court order returning plaint for lack of jurisdiction under the Bombay Revenue Jurisdiction Act. The High Court allowed the appeal, holding the trial court committed an error because the suit involved decriminalized civil questions on joint family property, partition, and injunctions. The order restoring the matter to the trial court.

What did the court decide?

The order directing return of the plaint is set aside; the matter is restored to Regular Civil Suit No. 16 of 2014 for adjudication by the trial court.

Panjabrao Narayanrao Naik Vs the State of Maharashtra and… — Property and Title | Bombay HC (2014)

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1 AO 38 of 2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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Appeal from Order No.38 of 2014

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Panjabrao s/o Narayanrao Naik, Age 63 years, Occupation : Agri., Advocate, R/o Bhirda, At present Sanpada, Mumbai. .. Appellant.

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Versus

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1. State of Maharashtra Through District Collector, Hingoli.

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1. Dy. Superintendent, Land Record Office at Hingoli, Hingoli.

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1. Chief Officer, Nagar Parishad Office, Hingoli.

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1. Pralhad s/o Narayanrao Naik, Age 54 years, Occupation : Agriculture, R/o Bhirda, Taluka and District Hingoli. .. Respondents.

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Appellant – in person.

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Shri. S.D. Kaldate, Assistant Government Pleader, for respondent Nos.1 and 2.

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Shri. Sachin Deshmukh, Advocate, for respondent No.3.

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Shri. R.M. Giri, Advocate, for respondent No.4.

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CORAM: T.V. NALAWADE, J.

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DATE : 25^th MARCH 2014

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2 AO 38 of 2014

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JUDGMENT:

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The appeal is admitted. Notice after admission made returnable forthwith by consent. Heard both the sides.

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The appeal is filed against the order made on Exhibit 1 in Regular Civil Suit No.16 of 2014 by the Civil Judge, Senior Division, Hingoli. The suit is filed by the present appellant for relief of declaration and for restraining defendant No.4 from making construction and changing nature of the property. It is in respect of property bearing CTS No.6404 situated at Risala Bazar, Hingoli. The property is left behind by father of plaintiff namely Narayanrao. It is contended that defendant No.4 is real brother of the plaintiff and after death of his father the property was entered in the name of the plaintiff, defendant No.4 and the mother of these two brothers. After the death of mother, names of only plaintiff and defendant No.4 were entered in the property register as per the case of the plaintiff. It is contended that the property is Hindu joint family property of the plaintiff and defendant No.4 and they are jointly enjoying the property.

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3 AO 38 of 2014

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It is the case of the plaintiff that, no partition has taken place between him and defendant No.4 though he is residing at Mumbai due to his occupation. It is contended that when he learnt that defendant No.4 had started making construction on the property he made enquiry. It is contended that it transpired to him that by giving application to the office of city survey, defendant No.4 had got property partitioned in the record. It is contended that he has not signed on the application given to the city survey office and he had not consented for such action. It is contended that defendant No.2, officer of city survey office joined hands with defendant No.4 and helped him to divide the property in the record and accordingly two property are created as CTS No.6404 and 6404/A. It is contended that such division could not have been made as there was no actual partition.

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It is the case of the plaintiff that behind his back aforesaid record was created and then defendant No. 4 had applied to the Municipal Council Hingoli for obtaining construction permission. It is contended that without making any enquiry, defendant No.3-Municipal

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4 AO 38 of 2014

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Council gave permission of construction to defendant No.

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It is contended that he had informed about the aforesaid acts of defendant No.4 to defendant Nos.2 and 3 but defendant Nos.2 and 3 did not take proper steps and so he was constrained to file the suit. In the suit the plaintiff has requested to declare that the aforesaid division shown in the record is illegal and he has prayed for relief of injunction to prevent defendant No.4 from making construction on the basis of this record.

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The defendant No.4 filed application Exhibit 24 and request was made for framing preliminary issue about tenability of the suit. It is the contention of defendant No.4 that it was necessary for the plaintiff to file proceeding under Maharashtra Land Revenue Code, 1966 to challenge the order made by the city survey office and as that is not done, the suit itself is not tenable. After hearing both the sides and after considering Section 11 of the Bombay Revenue Jurisdiction Act, 1876, the trial Court has held that the suit cannot be entertained and the Court has no jurisdiction. It is held that it is necessary for the plaintiff to file appropriate proceeding to challenge the

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5 AO 38 of 2014

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decision of the city survey office.

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It appears that defendant No.4 has not filed written statement. A query was made and information was sought by this Court from the learned counsel of defendant No.4. There is no record whatsoever with defendant No.4 to show that partition has taken place between him and the plaintiff. It appears that there was no signature of the plaintiff on the application submitted to the city survey office. Thus, procedure as required for division of the property was not followed. As there is no record of partition itself, there could not have been division of property in the record of the city survey office. In view of these circumstances, it cannot be said that the only remedy was to file appeal against the order made by the city survey office under the Maharashtra Land Revenue Code.

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Though in the plaint declaration is claimed in respect of the order made by the city survey office, the basic contention will be with regard to case of the plaintiff that partition had not taken place. The defendant No.4

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6 AO 38 of 2014

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wants to make construction over the property by showing the partition. As the suit property was admittedly joint family property, allowing the defendant No.4 to make construction would amount to interference in the joint possession of the plaintiff with defendant No.4 over the suit property. All these things need to be considered by the Civil Court and they cannot be considered by the revenue authority. Thus, it cannot be said that there is bar to the suit of the aforesaid provision. This Court has no hesitation to hold that the trial Court has committed error in holding that the suit is not tenable in view of section 11 of the Bombay Revenue Jurisdiction Act, 1876.

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In the result, the appeal is allowed. The order of the trial Court directing return of the plaint is hereby set aside. The matter stands restored to its original number.

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Sd/-

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(T.V. NALAWADE, J.)

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rsl

Panjabrao Narayanrao Naik v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Panjabrao Narayanrao Naik v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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