Agriculture, R/o. Karegaon, Tq. Shrirampur, Dist. Ahmednagar v. 1. City Corporation Ltd
Case Details
wp-10947/22. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CIVIL WRIT PETITION NO. 10947 OF 2022 Vijay Shivram Pathare, Age: 44 years, Occu: Agriculture, R/o. Karegaon, Tq. Shrirampur, Dist. Ahmednagar. Versus 1. City Corporation Ltd, (A registered firm under the Indian Companies Act, 1956)917/19 A FC Road, Shivajinagar, Pune – 411 004 Through its Managing Director – Shri. Anirudha Praddumna Deshpande, Age: 59 years, Occu: Business, R/o. Flat No.D 301, 1, Modibag, Ganeshkhind Road, Pune – 411 004. Through its Authorized Signatory – Shri. Ajit Prataprao Toradmal, Age: 47 years, Occu: Service, R/o. Uniq Enclave, D-10, Tupe Nagar, Malwadi Road, Hadapsar, Pune – 411 028. 2. Dipak Shivram Pathare, Age: 48 years, Occu: Agriculture, R/o. Karegaon, Tq. Shrirampur, Dist. Ahmednagtar. ] ] ] ].. Petitioner. ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ]..Respondents. ***** Mr. S.S. Thombre for the Petitioner. Mr. Drupad S. Patil and Mr. Paresh B. Patil i/by Mr. Hemant P. Deshmukh for respondent No.1. Mr. Satyajit S. Bora for respondent No.2. ***** patilsr 1 of 28 wp-10947/22. Coram : Sharmila U. Deshmukh, J. R eserved on : March 1, 2023. P ronounced on : March 28, 2023. JUDGMENT : 1. By this petition, the petitioner challenges the order dated 8th August, 2022 passed in Civil Miscellaneous Application No.8 of 2021 rejecting the petitioner’s application filed under Section 11 and Order-VII, Rule 11of the Code of Civil Procedure, 1908. 2. Learned Counsel for respondent No.1 has tendered list of dates and events, which has not been disputed by the learned counsel for Petitioner, from which the following facts are discerned: The property in question are lands bearing Survey No. 26/8+9+10 admeasuring 80-R and Survey No. 31/2/8 admeasuring 70- R. The said property was originally owned by one Pandu Piraji Lonkar. After his demise, the property devolved upon his five sons, namely, Ganpat, Shripatrao, Bahiroba, Maruti and Rambhau. Maruti instituted Regular Civil Suit No.19 of 1911 for partition of the ancestral property in which, a preliminary decree was drawn. After the death of Rambhau, the property devolved upon his daughters i.e Shantabai and Anjanabai Damdhere. In the final decree application in Regular Civil Suit No 19 of 1911, compromise terms came to be executed and 3/5 th patilsr 2 of 28 wp-10947/22. share was given to the daughters of Rambhau. In the year 1987, the daughters of Rambhau, i.e. Shantabai and Anjanabai filed Regular Civil Suit No.1147 of 1987 for partition, which came to be decreed and said Shantabai and Anajabai were held entitled to 3/5th share. The decree was challenged upto the Apex Court and the Special Leave Petition came to be rejected in the year 2013. 3. In the interregnum, by Will dated 26th December, 2004, Anjanabai bequeathed the property in favour of respondent No.2 herein, i.e. Dipak Shivram Pathare. On 4th March, 2005 Anjanabai expired, leaving behind 4 sons and 2 daughters. On 28th March, 2005, Mutation Entry No.8362 was effected in the name of Respondent No.2 in the revenue records. On 3rd October, 2005, respondent No.2 executed a registered development agreement and power of attorney in favour of respondent No.1 herein, i.e. City Corporation Limited, for a total consideration of Rs.47 lakh. On 22nd November, 2013, sale- deed was executed between respondent No.1 and respondent No.2. On 2nd December, 2013, Mutation Entry No.12367 came to be effected in name of Respondent No 1 in the revenue records. 4. On 16th December, 2013, respondent No.2 filed Special Civil Suit No.1669 of 2013 against respondent no.1 seeking patilsr 3 of 28 wp-10947/22. cancellation of the development agreement, power of attorney and sale-deed. On 14th October, 2014, the application for temporary injunction came to be dismissed. 5.
Legal Reasoning
In parallel proceedings, the Petitioner challenged the Mutation Entry No.8362 recording the name of Respondent No.2 by way of RTS Appeal No.126 of 2016, on the basis of Will dated 17 th February, 2005 executed by Anjanabai in favour of the petitioner. The Sub-Divisional Officer dismissed the RTS Appeal on 29th August, 2016, which came to be challenged by the petitioner before the Additional Collector. On 26th December, 2016, the appeal of petitioner came to be allowed and Mutation Entry No.13580 was effected in favour of the petitioner. Respondent No.1 was not a party to this revenue proceeding and there was no challenge to the Mutation Entry No.12367 whereby the name of respondent No.1 was recorded in the 7/12 extract. After obtaining knowledge of the order dated 26th December, 2016 passed by the Additional Collector, respondent No.1 filed Revision No.157 of 2017 before the Divisional Commissioner, which came to be allowed and Mutation Entry No.13580 recording the name of Petitioner in revenue records was cancelled. 6. On 1st August, 2017, respondent No.1 filed Regular Civil patilsr 4 of 28 wp-10947/22. Suit No. 1275 of 2017 challenging the Will dated 17th February, 2005 propounded by the Petitioner. The application for temporary injunction came to be allowed on 23rd January, 2018 restraining the petitioner from creating third party rights and disturbing the possession of respondent No.1 over the suit property. 7. On 19th November, 2018, the petitioner filed MCA No.2 of 2019, seeking probate of the alleged Will dated 17th February, 2005, which came to be allowed and the probate was granted on 17th June, 2019. 8. After the grant of probate, the petitioner challenged the order of Divisional Commissioner dated 25th June, 2018 before the Hon’ble Minister, which came to be dismissed by the order dated 17th March, 2021 as against which the petitioner has preferred the Writ Petitions in this Court and the same are pending. 9. On 2nd June, 2020, respondent No.1 filed an application being Application No.12 of 2020, for condonation of delay caused in filing the application for revocation of the probate issued in favour of the petitioner, which came to be allowed and the application came to be registered as Miscellaneous Civil Application No.8 of 2021. In the patilsr 5 of 28 wp-10947/22. meantime, on 10th November, 2021 the application bearing MCA No.2 of 2019 of respondent No.2 seeking revocation of probate granted in favour of the petitioner came to be rejected. 10. In MCA No.8 of 2021 filed by Respondent No.1, the petitioner filed an application under Section 11 and Order-VII Rule 11 of Code of Civil Procedure, 1908 which came to be rejected giving rise to the present petition. 11.
Legal Reasoning
Heard Mr. S.S. Thombre, learned counsel for the Petitioner, Mr. Drupad S. Patil, learned counsel for Respondent No.1 and Mr. Satyajit Bora, learned counsel for Respondent No.2. 12. Learned counsel for the petitioner submits that respondent No.1 has adopted wait and watch attitude and moved its application, being MCA No.8 of 2021, after the rejection of Respondent No.2’s application for revocation. He would contend that the rights of Anjanabai in the suit property came to be crystallized only in the year 2016 after the dismissal of curative petitions by the Apex Court and thereafter application for probate was filed by Petitioner. He would further submit that in the application seeking grant of probate, paper publication was effected and no objection patilsr 6 of 28 wp-10947/22. was raised either by respondent No.1 and respondent No.2. He has invited the attention of this Court to the findings of the Civil Judge (S.D) in MCA No 2 of 2019 rejecting the application filed by Respondent No.2 for revocation of probate. He would further submit that the probate proceedings do not deal with the question of title and the right of Respondent No.1 will be adjudicated in the civil suit filed by Respondent No.1. 13. Learned Counsel for the Petitioner would further submit that applying the principles of constructive res-judicata, Respondent No.1’s application is not maintainable as it claims through Respondent No.2. He has invited the attention of the Court to the averments in Civil M.A. No.8 of 2021 and would further contend that the application does not disclose any cause of action. He relies upon the following decisions: (i) (ii)