BEFORE THE HON’BLE DISTRICT SUPRIENDENT OF
LAND RECORD, NAGPUR.
APPEAL No.___________ of 2013.
APPELLANT :- Shri.Ravi S/o Narayanrao Kawale,
Aged about 40 years, occupation Service,
R/o Near Sangha Building, Bhure
Deosthan Mahal Nagpur.
-VERSUS-
RESPONDENTS :-1. City Officer No.-1, Nagpur
Civil Lines, Nagpur
2. Smt.Sarojani Narayan Kawale
Aged about 60 years, Occupation Nil,
3. Shrikant Narayan Kawale
Aged about 42 years, Occupation
Busness,
4. Smt.Rohini Hemant Deshpande
Aged about 38 years, Occupation
Household,
5. Avinash Ganesh Kawale
Aged about 52 years, Occupation
Service,
6. Arvind Ganesh Kawale
Aged about 46 years, Occupation
Service,
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No.2 to 6 Resident of Near Sangha
Building, Bhure Deosthan, Mahal
Nagpur.
7. Smt. Archana W/o Girish Agnihotri
Aged about 36 years, Occupation
Household, R/o
8. Uday Moreshwar Kawale
Aged about 54 years, Occupation
Priest ,
9. Chintaman Moreshwar Kawale
Aged about 51 years, Occupation
Priest,
No.8 & 9 Resident of Near Sangha
Building, Bhure Deosthan, Mahal
Nagpur.
10. Smt. Maya @ Vidhya Vasant
Munishwar Aged about 60 years,
Occupation:Household, R/o Lal
Bahadur Shashtri Ward, Ramtalao
Road Bhandara, District Bhandara.
11. Baban Laxmanrao Kelkar
Aged about 62 years, Occupation
Priest,
12. Mayuri Baban Kelkar
Aged about 62 years, Occupation
Student,
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No.11 and 12 Resident of Salunke
Bhavan Naik Road Mahal, Nagpur.
APPEAL UNDER SECTION 247 OF MAHARASHTRA LAND
REVENUE CODE.
Being aggrieved by the order passed by respondent
no.1 on 10.09.2009 Vide Mutation No.600 thereby mutated
the name of respondent no.8,9 and 10 excluding the name
of appellant and respondent no.1 to 7, hence the appellants
prefer instant appeal on the following facts and grounds
amongst others :-
-FACTS-
The brief facts of the case is as under:-
1. The appellant and all respondents are the decedents of
Narayan S/o Govindpant Kawale and their genealogical trees
are as under:-
2. That the appellant is the son of respondent no.2 and
real brother of respondent no.3 & 4. Similarly the appellant
is a cousin brother of respondent no.5 to 10. That the
Narayan S/o Govindpant Kawale was the Karta of the
Kawale family. The said Narayan was owned and possessed
house properties bearing City Survey No.500,501 & 502,
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Sheet No.206, situated in Circle No.6/8 and the house
constructed thereon bearing House No.185 (Old), House No.
233 (New). In the said house property there is a Deoghar and
the said Narayan was managing the same. He had two sons
namely Dhundiraj and Gajanan. The said Narayan died
sometime in the year 1905 and left behind him his two sons
Dhundiraj and Gajanan as his legal heirs and successors to
his estate. The said Dhundiraj and Gajanan were become
joint owners and possessed the same house properties
inherited from Narayan i.e. the above house properties. The
said Dhundiraj and Gajanan both were married. The said
Dhundiraj had three sons mainly Moreshwar, Ganesh and
Narayan, whereas Gajanan had one son Manohar and one
daughter Shantabai. The said Dhundiraj died on 10.06.1953
and left behind him Widow Jankibai Sons Moreshwar,
Ganesh and Narayan as his legal heirs and successors.
3. It will be not out of place to mention here this facts
that Manohar S/o Gajanan Kawale had filed original civil
suit No.9A of 1953 against his father Gajanan, his aunt
Jankibai and his cousin brother Moreshwar, Ganesh and
Narayan before the 3rd Civil Judge, Class-II Nagpur for
partition and separate possession of the above house
properties. The said civil suit was dismissed by the court
and against that the first appeal was preferred bearing
appeal No.68/1956 before the District Judge, Nagpur.
However the said appeal was also dismissed and therefore
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the said Manohar filed second appeal bearing appeal
No.186/97 before the Hon’ble High Court of Bombay, Bench
at Nagpur. It is specifically submitted that the parties to the
said appeal had amicably and mutually settled the matter
before the High Court and the Hon’ble High Court has
passed order to that effect on 19.12.1962 holding that
parties to the suit are the successors to the above house
property and they have partitioned the above house property
according to the compromise dt.19.12.1962. Thus it will be
very clear from the above facts the above house properties
are ancestral one and the appellant as well as respondent
No.1 to 9 are the successors to the above estate and they
have undivided share in the above house properties.
4. The appellant submits that after the death of
Dhundiraj his properties were managing by his elder son
Shri. Moreshwar who was the uncle of the appellant and
father of respondent no.8 to 10. Because at the relevant time
the father of the appellant namely Narayan and his real
brother Ganesh were got service in Railway and due to the
service they were always resided out of Nagpur. It is
pertinent to note that when the inquiry was made by the
City Survey Department regarding title of the house property
at that time the said Moreshwar was in possession of the
house property and his two brothers Ganesh and Narayan
were out of Nagpur for service and therefore the City Survey
Department has noted and muted only name of Moreshwar
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in the City Survey Record. Moreover the said record was
continued in his name and there were good and cordial
relation between the family members and therefore they did
not required to verify the mutation entries in City survey as
well as corporation record. The said Moreshwar died on
10.01.1998 and left behind him two sons respondent no. 8 &
9 and two daughters Respondent no. 10. The one daughter
of Moreshwar namely Mamta @ Pallavi W/o Baban Kelkar
died and she left behind her husband and one daughter who
are respondent no.11 and 12. The respondent No.8 to 12
has applied for mutation in the City Survey Office after the
demise of Moreshwar and their name were mutated.
Subsequently the respondent 10 to 12 has executed
relinquishment deed regarding their undivided share on
23.12.2009 and therefore their name was deleted from
property card.
5. The appellant submits that Moreshwar, Ganesh and
Narayan all were having undivided share in the above house
property and consequently their legal heirs were also holding
undivided share in the suit property by birth. The said
Ganesh died on 03.02.2005 and left behind him two sons
respondents No. 5 & 6 and one daughter respondent no.7 as
his legal heirs and successors and they are also having
undivided share in the suit property. Similarly the said
Narayan died on 05.03.2009 and left behind him two sons
namely appellant and respondent no.1, One daughter
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respondent no.4 and his widow respondent no.2. All the
appellant and respondents no.2 to 12 are having undivided
share in the above house property and this fact proved
from the Judgment and decree of High court Bench at
Nagpur dt.19.12.1962 and therefore the name of the
appellants as well as respondents are to be mutated along
with the name of respondent no.8 to 12. It is submitted that
the said Moreshwar had suppressed the facts from the City
Survey Officer about the other brothers and legal heirs and
therefore their names were not mutated. Now the above
house property is in deteriorated conditions and it needs
reconstruction. It is submitted that when all legal heirs
started contribution for expenses of constructions of house
in place of old house. On that occasion the appellants
verified the record of the City Survey which was in custody
of respondent no.8 and 9 and he reveals that his father and
uncle names as well as their legal heirs were not mutated in
City Survey Record. Therefore the appellant on 21/03/2013
applied to the respondent no.1 for mutation of the name of
respondents as well as appellant in City Survey Record.
However the respondent no.1 did not consider his
application on the sole ground that the name of Ganesh and
Narayan Kawale are not available on the City Survey Record
and therefore the name of their legal heirs can not be
mutated. Hence the appellant has no other alternative than
8
to prefer present appeal before this Hon’ble court on the
following grounds amongst others:-
-GROUNDS-
1. The Learned Respondent no.1 has recorded the finding
contrary to the documentary evidence and principle of law
and hence the same is perverse, illegal and liable to be
quashed and set aside.
2. The Learned Authority ought to have seen that the
partition was took place in between the predecessor in-title
of appellant and respondents No.2 to 12 before the Hon’ble
High Court on 19.12.1962 and thereby allotted the share to
the each party. The Narayan and Ganesh were parties to the
said Civil Suit along with Moreshwar. This particular fact
established that Moreshwar Narayan and Ganesh were the
Joint owners of the said property and they had undivided
share in the suit property. Thus it is obligatory on the party
of Moreshwar to be disclosed this fact to the Inspector of
City Survey who made inquiry in the year 1970 and noted in
inquiry register. Since the Moreshwar was layman he was
not aware about the consequences of non disclosing the said
fact. But it does not mean that the legal heirs of Ganesh and
Narayan are not entitled to mutate their names. They are in
possession of the properties as a co-owner and they have
entitled to mutate their names in City Survey. Hence this
aspect ought to have been considered by the said Trial
9
authority without considering above aspects they rejected
the application illegally and without any authority. Hence
the said order is liable to be quashed and set aside.
3. In the present case the Learned Authority ought to
have seen that the title of the appellant and respondents
No.2 to 12 is still in existence and they are having undivided
share. Mere entries in their father’s name is not available in
the City Survey Record does not mean that their rights are
extinguished. The legal heirs are always entitled to correct
the record and rectify the mistake committed by their father.
4. The Learned Trial Authority ought to have seen that
the said Ganesh and Narayan are the real brother of
Moreshwar and they are in Railway service therefore they are
always out of Nagpur along with their family and the present
property was managing by Moreshwar Only. After the
retirement of Ganesh and Narayan they were residing along
with their family in the suit house as a co-owner till their
death. The name of Moreshwar was recorded by the City
Survey Department on the basis of ancestral property. The
same principle is applicable to the Ganesh and Narayan
while mutating their names. Hence the order of the Trial
Authority is bad in law and liable to be quashed and set
aside.
5. The Learned Authority passed the order contrary to the
law, fact on record and are based on misconception of
10
provisions of law amounting miscarriage of natural justice,
equity and is liable to be set aside.
PRAYER:- It is therefore most respectfully prayed that
this Hon’ble court be pleased to :-
i) to quash and set aside order
dt.10/09/2009 passed by respondent No.1
vide Mutation Case No.600 and add the
name of appellants and respondents in
respect of the City Survey No.500, 501 and
502, Sheet No.206 and call the record of
the said case for perusal and inquiry.
ii) This Hon’ble be pleased to direct the
respondent no.l to mutate the name of
appellant and respondent no.2 to 7 on
record being the co-owners of the above
house property in city survey record along
with the name of respondent no.8 to 12.
iii) Any other relief which this Hon’ble
Authority deems fit proper and be granted
in favour of appellant.
NAGPUR:
DATED: /07/2013. COUNSEL FOR APPELLANT.
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APPLICATION FOR CONDONATION OF DELAY FOR FILING
APPEAL UNDER SECTION 247 OF THE MAHARASHTRA
LAND REVENUE CODE
The appellant in the above case begs to submit as
under:-
1. That the appellant herewith files appeal Under Section
247 of Maharashtra Land Revenue Code and thereby
challenged impunged mutation entry dt.10.09.2009 Vide
Mutation Case No.600 thereby mutated the name of
respondent no.8, 9 and 10. It is submitted that the above
properties Vide City Survey No.500, 501 and 502, Sheet
No.206 was originally belonging to Narayan Govindpant
Kawale and the appellant as well as respondents are their
decedents. The said Narayan had two sons namely
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Dhundiraj and Gajanan. After the death of Narayan
sometime in the year 1905 his two son Dhondiraj and
Gajanan were acquired titled jointly in the aforesaid house
property by inheritance. The said Dhundiraj had also three
sons by named Moreshwar, Ganesh and Narayan. The said
Gajanan had also one son and One daughter namely
Manohar and Shantabai. After the death Dhundiraj his
undivided share in the property was survived and devolved
upon his three sons Moreshwar, Ganesh and Narayan.
2. The Ganesh and Narayan were in services at Railway
and they are always residing outside the Nagpur due to their
job. Their elder brother Moreshwar was managing the affairs
of the above house property. Taking advantage of this fact
Moreshwar alone has mutated his name in City Survey
Record and suppressed the facts from the concern Officer
that there are two brothers namely Ganesh and Narayan
who were also having undivided share in the suit property.
The facts remain that because of above result the name of
Ganesh and Narayan were never mutated in City survey
record even during their life time. The said Moreshwar died
10.01.1998 and his undivided share was devolved upon his
two sons’ namely respondent no.8 and 9 and two daughters
namely respondent no.10 to 12 and their names were also
mutated. So far as Ganesh is concerned, he died 03.02.2005
leaving behind him two sons respondent no.5 and 6 and one
daughter respondent no.7 as his legal heirs and successors
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to his undivided share. Similarly Narayan died on
05.03.2009 and he left behind him two sons namely
appellant and respondent no.1 and one daughter respondent
no.4 and his widow respondent no.2. Since the name of
Narayan and Ganesh were not mutated in City Survey
record though they were undivided share in the suit property
and consequently their legal heirs could not mutate their
names in City Survey Record. This particular House property
received by Moreshwar, Ganesh and Narayan jointly in the
compromise decree dt.19.12.1962 passed by Hon’ble High
Court Bench at Nagpur in Second Appeal No.186/1957,
hence the appellant as well as respondents are having
undivided share in the suit property.
3. The appellant submits that when all family members
were decided to reconstruct the house from foundation as
the same was in dilapidated condition and for that every
members was decided to collect the contribution for
construction. This incident was happened on 20.03.2013.
On the occasion of above incident appellant as well as
respondent were seating together and discussed the issue.
The respondent no.8 and 9 were shown the property card to
the appellant on 20.03.2013 and on very same day the
appellant revealed that his name as well as the name of
respondent no.2 to 7 are not recorded in property card. The
appellant got the knowledge of this fact on 20.03.2013 and
therefore he applied to the City Survey Officer No.-1 on
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21.03.2013 and requested the conserned officer to mutate
the name his name as well as respondent no.2 to7 in City
Survey Record. The said application was rejected by the City
Survey Officer on 10.05.2013 and informed to the applicant
to prefer an appeal for redressal.
3. The appellant submits that he got the knowledge of the
mutation entry of the respondent no.8 to 12 first time on
20.03.2013 and therefore from this date of knowledge there
is no delay for preferring appeal. But for the abundant
precaution the appellant submit that he was not aware
about the mutation entry in property card as there was no
occasion for him to verify the same. And therefore the
mutation was effected on 10.09.2009 Vide Mutation Entry
No.600. Moreover the Moreshwar has suppressed the facts
from the City Survey Officer about his two brother namely
Ganesh and Narayan. The said Moreshwar was the elder
brother and he was managing the properties. Every
members of the family gave him respect and had deep faith
on him. As such there was no reason for the appellant to get
the verify the record of the house property. The appellant
submits that mutation entry was effected on 10.09.2009 and
since that date there is a delay three years Six months
(Approximately 1275 days). The reason stated above is
sufficient and bonafide one for condoning the delay. The
reasons stated above prevented the appellant to file appeal
15
within a stipulated date. Hence in the interest of natural
justice the above delay may kindly be condoned.
PRAYER:- It is therefore prayed that this Hon’ble authority
be pleased to condone the delay of three years six months
(1275 days) for filing of appeal in the interest of natural
justice.
NAGPUR:
DATED: /07/2013. APPELLANT
COUNSEL FOR APPELLANT.
-SOLEMN AFFIRMATION-
I Shri.Ravi S/o Narayanrao Kawale, Aged about 40
years, occupation Service, R/o Near Sangha Building, Bhure
Deosthan Mahal Nagpur,
