NALINI Vs. GIRDHAR S O KASHINATH PATIL

JUDGEMENT

(1.) THE petition arises from the judgment and order dated 31st December, 1999 passed by the Additional Commissioner, Nashik allowing the revision application filed by the respondent Nos. 1 and 2 against the order of the Additional Collector, Jalgaon dated 19th January, 1999. The Additional Collector, Jalgaon in RTS Appeal No. 56/98, by the said order of 19th January, 1999, had allowed the appeal filed by the petitioner against the order of the Sub-Divisional Officer, Bhusawal dated 6th April, 1998. The said Sub- Divisional Officer, Bhusawal by his order dated 6th April, 1998 in RTS Revision No. 47/97 had rejected the revision application filed by the petitioner against the mutation of Entry No. 1319 and other mutation entries carried out by the Talathi of village Rajore on 27th July, 1995 pursuant to application stated to have been filed by one Onkar Patil.

(2.) IT is the case of the petitioner that Onkar Pandurang Patil was her husband and he had purchased agricultural land being Gut No. 205 admeasuring 46 acres in the village of Rajore by a deed dated 5th February, 1979 for a consideration of Rs. 9000/ -. Pursuant to the purchase of the property, mutation of entry in record of rights was carried out under No. 1086 in favour of Onkar Patil in relation to the said property. It is further contention of the petitioner that the said property was self acquired property of Onkar Patil as it was purchased out of his own income and it was not forming part of the joint family property. Oral partition of the ancestral properties of the family consisting of Onkar Patil and his three brothers Kashinath, Pandit and Bhagwat was carried out and it was recorded in the form of Smaran Patra and the same did not include the said property. It is further case of the petitioner that Onkar Patil converted the said property into non-agricultural land and divided the same into 9 plots and it was also recorded in "hakka Nandani Patra" in Form No. 6 in the name of Onkar Patil. The respondents Nos. 1 and 2 are the nephews of Onkar Patil. It is contention of the petitioner that an application in the name of Onkar Patil came to be filed with the Talathi of Rajore on 27th April, 1995 requesting for deletion of name of Onkar Patil and inclusion of the respondent No. 1 in his place in relation to the said property for the reasons stated in the said application. According to the petitioner even before the receipt of the said application, the Talathi of Rajore caused mutation of entry by deleting the name of Onkar Patil and by including the name of respondent No. 1 in relation to the said property on 24th April, 1995 i. e. three days prior to the submission of the said application. It is further case of the petitioner that no notice of the said application was received by Onkar Patil before the mutation of entry was caused. Said Onkar Patil expired on 7th April, 1996. Meanwhile, on 5th December, 1995 the respondent No. 1 executed sale-deeds in respect of plot Nos. 5 to 8 of the property in favour of respondent No. 2 as Chairman of Onkar Sahakari Grah Nirman Sanstha Maryadit, Rajore. Based on the said sale-deeds mutation entries Nos. 1327 to 1330 were sanctioned by the Talathi of Rajore in favour of the respondent No. 2 on 21st June, 1996. Thereupon the petitioner filed revision application RTS No. 47 of 1997 before the Sub-Divisional Officer, Bhusawal against the mutation Entry No. 1319 as well as subsequent mutation entries in relation to the said property. The said revision application was rejected by the Sub-Divisional Officer on 6th April, 1998. As already observed above, RTS Appeal No. 56/98 against the said order of the Sub-Divisional Officer was allowed by the Additional Collector by his order dated 19-1-1999. However, the same was set aside by the Additional Commissioner, Nashik in RTS Revision No. 85/1999. Meanwhile, the petitioner also filed Special Civil Suit No. 74 of 1998 in the Court of the Civil Judge, Senior Division, Jalgaon for declaration of ownership and injunction against the respondents No. 1 and 2. Though, initially by order dated 5-3-1998 status quo order was passed by the Civil Court the same was vacated on 16th October, 1998. Appeal from Order No. 118 of 1998 against the order of the trial Court was dismissed by the High Court on 21-12-1998 with the observation that the construction in the suit plots would be subject to the final outcome of the suit. Meanwhile on 11-3-1999 respondents No. 1 and 2 paid stamp duty on an application dated 27-7-1995 and the said stamp duty was collected by the Collector with his endorsement thereof.

(3.) WHILE assailing the impugned order, the learned Advocate for the petitioner has submitted that the Talathi, while exercising powers under section 149 of the Maharashtra Land Revenue Code, 1966 regarding mutation of entries in the revenue records, is not entitled to cause mutation of any entry unless the party, requesting for such mutation, produces before the authority, a lawful and duly stamped and registered document regarding acquisition of right when the property in question is worth Rs. 100/- and above. The property having been purchased by Onkar Patil in 1979 for a sum of Rs. 9000/- assignment of any right in respect thereof in favour of any other person cannot be otherwise than duly stamped and registered document and since the application dated 27-7-1995 was not accompanied by any such document, the Talathi had no authority to cause any mutation in relation to the said property. Grievance was also made regarding the mutation entry having been made prior to the filing of the application of 27th July, 1995 itself and in that regard the certified copy of the mutation entry was produced disclosing the entry having been effected on 24th July, 1995 though the application s0tated to have been filed on 27-7-1995. Referring to section 154 of the Code, it was submitted that it is obligatory for the registering authority to intimate the Talathi of the concerned village about the registration of the agricultural land or in respect of which a record of right has been prepared within stipulated time. Reference was also made to three Government Circulars dated 20th March, 1992, 8th July, 1992 and 26th May, 1995 explaining the scope of powers of Talathi while acting under section 149 of the Code and issued by the Government of Maharashtra for the purpose of guidance of the Talathi in that regard. Reference was also made to Rule 11 of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971, (hereinafter called as "the said Rules" ). It refers to section 154 of the Code and provides for causing necessary entries in the register of mutation pursuant to receipt of the intimation regarding registration of the document from the registering authorities. Inspite of all these provisions of laws specifically providing that the mutation of entries pursuant to the acquisition of rights can be effected only after proper document in that regard is produced, according to the learned Advocate for the petitioner, the Talathi having caused the mutation of entries in contravention of the said provisions of law, the same was liable to be quashed and set aside, and therefore there was no justification for the Additional Commissioner, Nashik to interfere with the order of the Additional Collector, Jalgaon. The learned Advocate for the petitioner has also sought to challenge the mutation of entry on the ground that the property is not joint family property but a self acquired property of Onkar Patil and, therefore there was no occasion for Onkar Patil to convey the property in favour of respondent No. 1 in the manner which is stated to have been conveyed in the application dated 27-7-1995 and that itself shows that the application was a fabricated one and was not actually filed by Onkar Patil. Reliance is also sought to be placed in the decision in the matter of (Mangal Prasad v. Vth Additional District Judge, Basti and others), reported in A. I. R. 1992 Allahabad 235 and (Ram Gati Choube v. Ram Adhar Chaube), reported in A. I. R. 1961 Allahabad 537 in support of the contentions on behalf of the petitioner.