Boja on gifted land

 

Online (Querist)
27 June 2020

Dear Experts,
There's a land at Chalisgaon, Maharashtra. The owner (husband) of the land gifted (HIBA-NAMA) the property to wife as per Muslim Law.

The owner was having Quarry business in Mumbai. As per Tehsildar-Mumbai there was some royalty amount pending on the owner in respect to another land on which he was quarrying. The owner was also into construction business with 2 partners on a different land. The owner being a partner of the construction business, the Tehsildar issued notice to the construction firm.. And when the notice was issued to the Construction firm, the Collector, Jalgaon levied boja on the land at Chalisgaon which was gifted to the wife by the owner. The owner filed WRIT in the High Court, Bombay and is still pending. The owner averred before the High Court that the payment of the Royalty has already been paid and the Tehsildar Mumbai has the record of the same. The proofs of the same shall be produced in the pending case.

After the death of the Owner, the other legal heir started harassing the wife of the owner in respect to the said property. The wife approached the Court, the Court ordered Temporary injunction in favor of the wife. The wife approached Talathi to mutate her name in the 7/12 extract. The other legal heirs challenged the said notice and the matter went to the Mandal Adhikari. The Mandal Adhikari issued to order in favor of the other legal heirs, did not even considered the Courts order. The Mandal Adhikari verbally informed that main reason for rejection is the boja but he did not mention it in the order. If boja was the reason then the Mandal Adhikari should have mentioned it in the order, but he did not do so.
The reason he stated that as the dispute between the legal heirs in respect to the said land is pending in the Court, mutation cannot be done. During the proceeding, several judgments were cited wherein it was stated that mutation entry cannot be kept in abeyance even if the dispute is pending in the Civil Court. But the Mandal Adhikari over-looked.

The wife is on the verge of filing an Appeal with the SDO.

The false allegations and objections which were raised before the Mandal Adhikari by the other legal heirs were over-ruled and were not sustainable before the Chalisgaon Court.

Can SDO order his sub-ordinates to mutate the wife's name as there is a boja on the land of some other land and not the gifted land?
Any judgments in respect to the said case will be very helpful.

Respected Experts please help.

Regards,

Mohammed Rizwan Shaikh


P. Venu Online (Expert)
28 June 2020

Let the SDO give his decision. If not successful, a civil suit could be filed. The disputed question whether there had been a valid gift (Hiba) or otherwise could be decided only in a civil suit.

Rajendra K Goyal Online (Expert)
28 June 2020

Since the appeal is pending, wait for its outcome.

Meanwhile it is possible that the mutation may not be sanctioned till appropriate orders on pending case with the High court.

Mohammed Rizwan ShaikhOnline (Querist)
28 June 2020

Venu Sir and Goyal Sir....
Sincerely thank you for your inputs........APPEAL has not been filed yet....I am waiting for the certified copies from Mandal Adhikari......the Mandal Adhikari....accepted the objections without any documentary evidence......which according to me is not right.....OtherHigh Courts has clearly stated that Mutation Entry cannot be kept in abeyance even if the matter is pending before the Civil Court. Any citations will be really helpfull experts.
Stay Blessed and Stay Safe.
Regards,
Mohammed Rizwan

N.J.S.Rajkumar alias narasimhaOnline (Expert)
29 June 2020

Mutation entries of the properties of Revenue Records does not Create or Extinguish of the Title over any Property nor does such an Entry would have any presumption value on the Title of such property. Such an Entry would only enable the the person in whose favor the mutation is ordered to pay the revenue records. This you could confirm by Referring the Supreme Court Judgement of " Narasamma & Ors VS State of Karnataka & ors (2009) -5-Sec 591 and in Other Case of Balwant Singh & other VS Daulat Singh (dead ) by LRS and others -- 1997 - Sec 137.

N.J.S.Rajkumar alias narasimhaOnline (Expert)
29 June 2020

Regard to the Query made by your self in the last Post with regard to Mutation Entry write and seek the information thro Right to Information Act and with in 30 days it would be implemented or you will get a Detailed Reply from them . Discuss and Confirm with your Advocate. in detail.

Mohammed Rizwan ShaikhOnline (Querist)
29 June 2020

Rajkumar Sir.....
Many thanks for the judgments and your inputs.....I have already applied for the Certified Copies of the entire proceedings. Is there any way I can catch hold the Mandal Adhikari as he issued the order without any evidence from the Respondents. In 2015 the said Adhikari was nabbed by the ACB Jalgaon in a bribery case. Please advice.
Stay Safe and Blessed
Regards,
MOhammed Rizwan Shaikh

Mohammed Rizwan ShaikhOnline (Querist)
29 June 2020

Rajkumar Sir.....
Many thanks for the judgments and your inputs.....I have already applied for the Certified Copies of the entire proceedings. Is there any way I can catch hold the Mandal Adhikari as he issued the order without any evidence from the Respondents. In 2015 the said Adhikari was nabbed by the ACB Jalgaon in a bribery case. Please advice.
Stay Safe and Blessed
Regards,
MOhammed Rizwan Shaikh

N.J.S.Rajkumar alias narasimhaOnline (Expert)
29 June 2020

Better show all the evidences you have and disclose all the full facts to an Local Senior Advocate of Civil Side and discuss in detail please.

P. Venu Online (Expert)
29 June 2020

Please do not allow yourself to be distracted by extraneous developments or incidents. You need to file a civil suit esp. because is not supported by a registered document. The suit needs to be filed within the limitation period one year and please note that law does not provide for any condonation of delay in filing a suit.

N.J.S.Rajkumar alias narasimhaOnline (Expert)
29 June 2020

If an Applicant has sufficient cause the Court would certainly Condone the delay in filing the Suit which the practicing Advocates would know. Discuss with Local Good Senior Civil Side Advocate.

P. Venu Online (Expert)
29 June 2020

Section 5 of the Limitation Act provides for condonation of delay and reads as follows:

Section 5 in The Limitation Act, 1963
Extension of prescribed period in certain cases. —Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.— The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

The clear words of the statute does not include Suits as well as Execution Petitions. The reason could be that sufficient longer limitation period (up to 12 years) is provided for preferring a suit while the limitation period for an application does not exceed 6 months.

N.J.S.Rajkumar alias narasimhaOnline (Expert)
29 June 2020

The Supreme Court has in appropriate Cases even Condoned the Delay of over 30 years.in filing SLPs. Refer the Case of Nand Kishore VS State of Punjab -1995 (6) SCC. Only an Legally Valid Justification of the delay would be required in Any Courts. Discuss with an Practicing Good Advocate of yours please

Mohammed Rizwan ShaikhOnline (Querist)
29 June 2020

Many many thanks Experts,
Sir...I will be filing Appeal before SDO and then if required then to HC....I have 45 days to file the appeal experts. Just wanted to take action against the Mandal Adhikari, who purposely accepted the objection of the other parties.
May GOD bless u all and please stay safe.
Regards,
Rizwan Shaikh

P. Venu Online (Expert)
30 June 2020

As already suggested, remedy lies in filing a civil suit not the least in approaching the High Court where only a Writ Petition could be filed.

N.J.S.Rajkumar alias narasimhaOnline (Expert)
30 June 2020

Thanks and Best wishes and Take Care Mr.Rizwan

Rajendra K Goyal Online (Expert)
30 June 2020

There would be not of much use to proceed against the Mandal Adhikari personally till you have proofs of corruption. Going for appeal would be proper avenue.

Mohammed Rizwan ShaikhOnline (Querist)
23 November 2020

Namaste Experts,
The other parties who opposed the mutation entry, only 1 party has responded and other 2 did not file any reply neither the Mandal Adhikari issued any notice. And based on 1 party's reply, the Mandal Adhikari rejected the Mutation Entry. Please advice what case can be made out? Whats the law in this regards?
Please advice Sir
Mohammed Rizwan

Isaac GabrielOnline (Expert)
06 December 2020

Your concern, though genuine, it is an executive order which is liable for challenge before the competent judicial court.No other remedy is available.



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