Concord Co-operative Housing Society & others v. Amedmal Bhatewada (deceased) Chandrakala Shantilal Lunawat & others

All these matters are decided by this common judgment because all the parties agree that all these matters involve common questions of law and are based on the common history regarding the facts and the disputed facts. In all these matters, notices were issued for final disposal. All the parties were duly served with such notices and learned Counsel appearing before me agree that the matters can be decided finally at this stage. 3 of 56 4 cra-285-22.odt

I have heard Shri G.S. Godbole, learned Senior Counsel for the Applicants in CRA No.285/2022, Shri S. M. Gorwadkar, learned Senior Counsel for the Petitioner in WP No.6701/2022, Shri Anil Anturkar, learned Senior Counsel for the Petitioner in WP(St) No.13161/2022, Shri R. D. Soni, learned counsel for the Applicant in CRA No.406/2022, Shri Virag Tulzapurkar, learned Senior Counsel, Shri Surel Shah, and Shri Mayur Khandeparkar, learned counsel , for the respective contesting Respondents.

C.R.A. No.285/2022 is preferred by Concord Co-operative Housing Society and its Chairman & Treasurer. The society claims to be the owner of the property.

Writ Petition (Stamp) No.13161/2022 is filed by Venkatesh Landmark, through its Partners, who are developing the property by making construction on the property.

C.R.A. No.406/2022 is filed by Yashcon Urban Development LLP, through its Partner. The Applicant claims to be owner of a part of the subject properties.

Writ Petition No.6701/2022 is filed by one of the members of the Concord Co-operative Housing Society. 4 of 56 5 cra-285-22.odt

The contesting Respondents, in all these matters, claim to be the legal heirs of one Amedmal Indrabhan Bhatewada. In all these matters, the Applicants/Petitioners have challenged the order dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division, Pune in Civil Misc. Application No.1658/2021. In C.R.A. No.285/2022, further prayers are made for permission to file certain documents which were not available at the time of passing of the impugned order in the Court of 10th Jt. Civil Judge, Senior Division, Pune. Subject properties :

The dispute is about the following properties : a] Land bearing Survey No.214, Hissa No.1/1 admeasuring 00 Hectare 97 Ares + pot kharaba 0 Hectare 02 Ares, assessed Rs.0.94, situated at village Lohegaon, Taluka– Haveli, District–Pune. b] Land bearing Survey No.214, Hissa No.1/4 admeasuring 1 Hectare 15 Ares, assessed Rs.1.06/-, situated at village Lohegaon, Taluka–Haveli, District–Pune. (Both these properties together are hereinafter referred to as ‘the subject properties’). 5 of 56 6 cra-285-22.odt

: Brief history and facts i. The subject properties were originally owned by one Bapu Kashiba Devkar. He died on 27.3.1939. After that, those subject properties were held by his heirs Shankar Bapu Devkar and Kisan Bapu Devkar. Their names were entered by Mutation Entry No.1942. ii. Amedmal filed Small Causes Suit No.4658/1935 against Shankar Bapu Devkar for recovery of money. The suit was decreed. iii. Darkhast No.560/1937 was filed by Amedmal for executing the decree in Suit No.4658/1935, in which half undivided share of Shankar was attached and was put up for sale in execution. iv. On 19.12.1939, Amedmal Bhatewada purchased Shankar’s share in the subject properties in the Court auction. His name was added in the Other Rights column in the record of rights by Mutation Entry No.2027, but, it was without possession. 6 of 56 7 cra-285-22.odt v.

On 20.1.1940, the sale was confirmed by the Executing Court and the Sale Certificate No.65/1940 was granted to the decree holder Amedmal. vi. On 1.9.1940, Mutation Entry No.2027 was made on the basis of the sale certificate and Amedmal’s name was recorded in Other Rights column. vii. In 1944, Amedmal Bhatewada filed a suit for partition bearing Civil Suit No.955/1944 against Shankarao Devkar and Kisan Devkar (hereinafter referred to as ‘the said suit’). viii. The suit was decreed vide the judgment and order dated

27.10.1945 (hereinafter referred to as ‘the said decree’). By the said decree, Amedmal Bhatewada was declared to be the owner of the half share of the subject properties. ix. It is mentioned in the memo of the C.R.A. No.285/2022 that Amedmal Bhatewada filed Execution Application No.292/1946 for execution of the said decree dated

27.10.1945. It is mentioned in the memo that it appears that the said execution was disposed of on 2.7.1946 for non- filing of the extract. 7 of 56 8 cra-285-22.odt x. In 1947, Amedmal Bhatewada filed another Execution Application bearing No.1150/1947 for recovery of money and for demanding actual physical partition and separate possession by metes and bounds by sending the precept to the Collector or his subordinate officer under the provisions of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’). Till this point, the facts are more or less undisputed. However, subsequent to that, the parties are at variance in respect of some important facts. xi. According to the Applicants and the Petitioners, on

11.1.1948, a compromise was arrived at between Amedmal Bhatewada and the Devkars; and Rs.200/- were paid as full and final relinquishment of all his claims to Amedmal Bhatewada by the Devkars in complete satisfaction of the decree or claims under the decree. A receipt was also issued by Amedmal Bhatewada acknowledging the receipt of money from the Devkars. The heirs of Amedmal Bhatewada are seriously disputing this fact of compromise. 8 of 56 9 cra-285-22.odt xii. The memo of the C.R.A further mentions that on 19.2.1948, further payments were made by Devkars and were acknowledged by Amedmal Bhatewada in his letter-cum- receipt dated 19.2.1948. According to the Applicants, the letter records that all the claims were completely satisfied. xiii. On 15.7.1948, a purshis at Exhibit-8 was filed by the decree holder Amedmal Bhatewada in the Execution Application No.1150/1947 stating that he did not wish to pursue the said Execution Application any longer. The contesting Respondents are disputing this fact as well. xiv. According to the Applicants/Petitioners, by the order dated

15.7.1948, the Execution Application No.1150/1947 was disposed of as per the said purshis at Exhibit-8. xv. On 25.2.1963, Amedmal Bhatewada passed away. xvi. There is no dispute that the subject properties were included within the Municipal limits of Pune Municipal Corporation vide Government Notification No.PMC/1160/2205/C dated

3.3.1962. 9 of 56 10 cra-285-22.odt xvii. Shankar Devkar, Kisan Devkar and Chandu Kisan Devkar sold an area admeasuring 2 Acres 18 Gunthas out of Survey No.214/1/1 and an area admeasuring 2 Acres 34 Gunthas out of Survey No.214/1/4 to Meherjibhai Kawasjibhai Paleya vide a sale deed dated 21.8.1967 bearing registration No.1606 of 1967. xviii. Meherjibhai Paleya sold some area from the subject properties to Jumana Zakiuddin Rangwala, Shirin Halala, Durriya Rangwalla, Fakhruddin Fida Ali Jinwalla and Fatema Jinwala by the sale deed dated 3.8.1973. xix. On 27.12.2006, Concord Co-operative Housing Society purchased some area from the subject properties from the aforementioned Jumana Rangwala, Fatema Jinwala and others by a registered sale deed bearing No.9272/2006. The name of the society was entered in the revenue record by Mutation Entry No.24916. xx. The Applicant Society then made an application challenging the Mutation Entry No.2027 by which the name of Amedmal Bhatewada was entered in the Other Rights column. On 10 of 56 11 cra-285-22.odt

3.7.2014, Sub-Divisional Officer, Haveli allowed the Applicant Society’s application and ordered deletion of name of Amedmal Bhatewada from the record of rights. Pursuant to the said order, on 7.10.2014 Amedmal Bhatewada’s name was deleted from the record of rights vide Mutation Entry No.41228. This Mutation Entry is challenged by the heirs of Amedmal Bhatewada in the separate proceedings. xxi. In the year 2018, Ameya Jain, Lavina Jain, and Prismi Jain purchased some piece of the land from the Applicant Society. They, in turn, sold that piece of land, which according to the contesting Respondents is 39.73 Ares, to M/s. Yashcon Urban Development LLP. C.R.A. No.406/2022 is filed by said Yashcon Urban Development LLP. xxii. After more than 76 years, the contesting Respondents i.e. Respondent Nos.1 to 5 in C.R.A. No.285/2022 preferred Civil Misc. Application No.1658/2021 under Section 54 of Code of Civil Procedure (for short, ‘C.P.C.’) before the learned Civil Judge, Senior Division, Pune for sending the 11 of 56 12 cra-285-22.odt copy of the decree dated 27.10.1945 to the District Collector, Pune for compliance. This application was allowed by the impugned order dated 27.4.2022 passed by the 10th Jt. Civil Judge, Senior Division, Pune. This order is impugned in all these matters before this Court. Submissions on behalf of the Applicants/Petitioners:

Shri Godbole, learned Senior Counsel argued for the Applicants in C.R.A. No.285/2022. Shri Godbole submitted that the Applicants, in Civil Misc. Application No.1658/2021 before the 10th Civil Judge, Senior Division Pune, have not established that they have any locus to prefer the said application. They have nowhere established that they are the legal heirs of the decree holder Amedmal Bhatewada. He submitted that the vital documents were not available when the learned Civil Judge, Senior Division decided their application. He invited my attention to the copies of the documents which are annexed to C.R.A. No.285/2022. According to Shri Godbole, the following 12 of 56 13 cra-285-22.odt documents were not available when the impugned order was passed. Those documents are as follows : i. The noting in the Darkhast No.292/1946 recording that the extract was not produced by the decree holder. ii. Directions to the Collector or any officer appointed in that behalf for partition of the property by metes and bounds and for giving possession to the decree holder Amedmal Bhatewada from the Defendants. In the same application, it was further prayed that the cost of the execution be taken from the judgment debtor under Order XX Rule 12 of C.P.C.. That Execution Application was under Order XXI Rule 11 of C.P.C.. iii. The order dated 19.11.1947 in Execution Application No.1150/1947 issuing notice to the Defendant under Order XXI Rule 22 of C.P.C.. iv. The order dated 11.2.1948 in the same Darkhast Application mentioning that the judgment debtor was absent and it was sent to the Collector for partition. The next noting shows that the Darkhast was disposed of as per the purshis filed at 13 of 56 14 cra-285-22.odt Exhibit-8. This order was passed on 15.7.1948. The purshis referred to in that order was dated 15.7.1948 in which it was mentioned by the Plaintiff that he did not want to proceed with the execution proceedings at that point and that the Darkhast be disposed of with cost to be paid by the Defendant. Said Darkhast was disposed of as per Exhibit-8 by the order dated 15.7.1948. . Copies of these documents are annexed to C.R.A. No.285/2022. The translation of some of the documents which were originally in modi script were provided by the Applicants and these copies are annexed to the C.R.A.

Shri Godbole submitted that all these documents were not before learned Civil Judge, Senior Division, Pune when he heard and decided the said application and, therefore, it would be appropriate if the matter is remanded back again before the same Judge to decide it by taking into consideration copies of all these documents.

Shri Godbole further submitted that proviso to Section 85(2) of the Maharashtra Land Revenue Code (for short, ‘MLRC’) 14 of 56 15 cra-285-22.odt provides that where any question as to title is raised, no such partition shall be made until such question is decided by a civil suit. Therefore, the Collector was not empowered to decide the issue regarding the title. In the present case, the title of the alleged legal heirs is seriously in dispute which the Collector is not empowered to decide. He further submitted that the judgments dealing with Section 54 of C.P.C. are in respect of the cases where the original Plaintiff himself has made an application for sending the precept. In the present case, there is a material difference as the application for sending the precept is filed by the alleged legal heirs of the original Plaintiff and not by the Plaintiff himself. The appropriate Civil Court at some point of time will have to decide who are the legal heirs of the original Plaintiff i.e. Amedmal Bhatewada.

He further submitted that Rule 4 of the Maharashtra Land Revenue (Partition of Holdings) Rules, 1967 (for short, ‘MLR Rules’) is important. According to Shri Godbole, whenever the Applicant’s title to the holding is disputed, the Collector has to reject the application under Rule 4 of MLR Rules. 15 of 56 16 cra-285-22.odt

He further submitted that the purshis at Exhibit-8 in the Darkhast in the year 1948 and other companion documents in the nature of receipts are themselves in the nature of certification of satisfaction of the decree. He further submitted that the learned Judge, in his impugned order, has treated the proceedings as execution proceedings as he has referred to Order XXI Rule 2 of C.P.C.. Once it is treated as execution proceedings, then it is barred by limitation and the application should not have been entertained by the Court.

He further submitted that the scope in the Writ Petition as well as in the Civil Revision Application is limited with reference to the impugned order. In the present case, the important documents were not seen by the Court as they were not before the Court when the impugned order was passed and, therefore, at the revisional stage or while deciding the Writ Petition under Article 227 of the Constitution, it would not be proper to examine the effect of those documents and, therefore, it would be appropriate if the matter is remanded back before the same Court for consideration of the issue afresh by taking into consideration those documents. In 16 of 56 17 cra-285-22.odt support of this contention, he relied on the judgment of the Delhi High Court in the case of Chelaram Chopra (through L.Rs) Vs. Ramo Devi & Ors.1; and on the observations of the Hon’ble Supreme Court in the case of Nawal Kishore Tulara Vs. Dinesh Chand Gupta and others2.

Shri Anturkar, learned Senior Counsel appeared for the Petitioners in Writ Petition (Stamp) No.13161/2022. He submitted that the Petitioners are caught in the fight between the Applicants in C.R.A.No.285/2022 and the purported legal heirs of Amedmal Bhatewada. The Petitioners were granted the development rights by M/s. Concord Co-operative Housing Society and the construction on the said land has progressed substantially. Many flat purchasers have purchased the flats; about 92 flat purchasers have already entered into agreements for purchase of the flats; and at a very belated stage the purported legal heirs of Amedmal Bhatewada have approached the Court. Thus, the interest of the Petitioners and the flat purchasers is seriously affected. 1 passed in RFA no.704/2002 decided on 5.7.2010 (Delhi High Court) 2 (2001) 6 SCC 110 17 of 56 18 cra-285-22.odt

Shri Anturkar submitted that, in a partition suit when a preliminary decree is passed, the suit continues till the final decree is passed. In the year 1963, the original plaintiff Amedmal Bhatewada had died. As per Order XXII Rule 3 of C.P.C., if the legal representatives of the sole Plaintiff do not make any application to be made parties to the suit, within the prescribed time, the suit must abate. In the present case, the limitation provided for bringing the legal heirs of the Plaintiff on record as provided under Article 120 of the Limitation Act which could not be more than maximum 90 days, has already expired and, therefore, the suit has abated and no further proceedings can be taken by the contesting Respondents who claimed to be the legal heirs of Amedmal Bhatewada.

Shri Anturkar’s next submission was that, even otherwise, once the Maharashtra Regional and Town Planning Act, 1966 (for short, ‘MRTP Act’) was brought into force, its provisions overrides all other acts. Section 2(7) of the MRTP Act refers to sub-division of the plot and, therefore, the Collector was not empowered to 18 of 56 19 cra-285-22.odt effect partition after the Planning Authority took control of the lands which included the subject properties.

Shri Anturkar submitted that Section 54 of C.P.C. mentions the word “estate” and it deliberately does not use the words “property or the land”. The word “estate” is defined under Section 2(8) of the MLRC.

He further submitted that Order XXIII Rule 1 provides that, any time after institution of a suit, the Plaintiff could abandon the suit or could abandon part of his claim. In the present case, the impugned order passed on 15.7.1948 shows that the Plaintiff had abandoned his claim and, therefore, no further right remains with the original plaintiff Amedmal Bhatewada and consequently with the legal heirs of Amedmal Bhatewada. He submitted that Order XXIII Rule 4 of C.P.C. provides that nothing in the Order XXIII applies to any proceedings in execution of a decree or order. He submitted that if the proceedings are treated as execution of the decree then the application made by the legal heirs of Amedmal Bhatewada is barred by limitation; and if it is not treated as an execution but only continuation of the suit then the claim of the 19 of 56 20 cra-285-22.odt original Plaintiff stands abandoned by the Plaintiff himself as is indicated in the order dated 15.7.1948.

Shri Gorwadkar, learned Senior Counsel for the Petitioner in Writ Petition No.6701/2022 supported the contentions of Shri Godbole and Shri Anturkar. He submitted that this Petitioner’s objection was not considered by the Court while deciding the application in which the impugned order was passed. The Applicants before the Court had not approached the Court with clean hands. There was concealment of material facts as important documents were not produced before that Court. If the Applicants were the legal heirs of the original Plaintiff they should have produced the necessary documents in the suit and the darkhast before learned Judge. Section 47 of C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed relating to the execution are to be determined by the Court executing the decree and not by a separate suit. Therefore, it was necessary for the said Court to have determined the disputed questions before passing any order. In this case, it is 20 of 56 21 cra-285-22.odt not even decided that the Applicants before the said Court were the legal heirs of the original Plaintiff.

He relied on Order XXII Rule 10 of C.P.C. which provides the procedure in case of assignment before the final order is passed. In this case, since the Petitioners had acquired the rights through assignment, they were required to be added as parties by leave of the Court. In this case, not only were they not made parties but they were not even heard. The title of the legal representatives of the original Plaintiff is seriously disputed and only the Court could have decided that issue. He relied on the judgment of this Court in the case of Khemchand Shankar Choudhari and another Vs. Vishnu Hari Patil and others3. According to him, this judgment provides that the subsequent purchasers have locus in the proceedings and they are required to be heard. In this case, they were not heard.

Learned counsel Shri Soni appeared in C.R.A. No.406/2022 for the Applicant, who was the purchaser of part of the property. He submitted that in the application for precept the 3 1983(2) Bom. C.R. 294 21 of 56 22 cra-285-22.odt original Defendants were not present. All the Respondents in the said application were mainly the purchasers of the subject property. The application for precept could have been filed by the original Plaintiff or the original Defendant or their legal representatives. The alleged legal heirs could have filed separate suit for cancellation of the sale-deeds in respect of the subject properties, but since their remedies were barred by limitation, they have adopted this method of approaching the Court. They have not approached the Court with clean hands.

He submitted that the Applicants in C.R.A. No.406/2022 were shown as parties in the proceedings in which the impugned order was passed, however, they were not heard at all. This is clear violation of principles of natural justice. He emphasized that the Collector ultimately cannot decide the title. Therefore, sending the precept to the Collector is meaningless. He further submitted that along with the application, the purported legal heirs of Amedmal Bhatewada also filed application vide Exhibit-5 for stay. He submitted that if their stand was that it was only an application for administrative action, then filing of the said application for stay 22 of 56 23 cra-285-22.odt goes against their stand. There was no possibility or requirement of filing a stay application in an application filed only for administrative acts. Submissions on behalf of the contesting Respondents :

Learned Senior Counsel Shri Tulzapurkar, Shri Mayur Khandeparkar and Shri Surel Shah appeared for the contesting Respondents, who had filed application before the learned Civil Judge, Senior Division in which the impugned order was passed.

Shri Tulzapurkar made the following submissions : i. The application vide Civil Misc. Application No.1658/2021 was not made in execution of the decree. The decree passed in the suit did not dispose of the suit but the suit is still pending. The decree that was passed was only a preliminary decree and the final decree was not yet passed. After the preliminary decree was passed the Court becomes functus officio. ii. Sending precept to the Collector is only an administrative order. It is not in the nature of execution of the decree. 23 of 56 24 cra-285-22.odt Shri Tulzapurkar invited my attention to Section 54 and Order XX Rule 18 of C.P.C.. iii. Irrespective of the alleged receipts, the Applicants, the Petitioners or anybody else does not get title over the property without any registered sale deed executed by the original Plaintiff Amedmal Bhatewada; because the sale certificate did stand in his name.