Govt ordered to return gift deed land to owner

Mubarak Ansari
Wednesday, 14 March 2018

Kudale had purchased the land in January 2011 from its previous owners Tushar Shankar Mokashi and others.

PUNE: The State government, through the Pune district collector, has been ordered to return ‘gift deed’ land on the bank of Gunjwani river in Hatve Budruk village of Bhor taluka, where the gram panchayat was constructing a crematorium. The district court has held that the land belonged to someone else. 

Dinesh Chandrakant Kudale (51) and his wife Varsha (46), both residents of Parvati area, Sinhagad Road, had moved the court in 2012 for declaration and recovery of possession against the State government (collector), Hatve Budruk village panchayat, Bhor taluka Panchayat Samiti, Pune Zilha Parishad, Sunil Janardhan Ikhankar (53) and his wife Sunita (46), residents of Model Colony, Pune, who had gifted the land to the government. 

Kudale is engaged in agriculture and business. He wanted to construct Kudale Farm House and had also obtained non-agriculture (NA) in 2011 for 150 sqm land. Accordingly, he had constructed temporary quarters for storage of goods and residence of employees.  Also, a compound wall was constructed around the property, however, a portion of suit property 1b was left without raising the compound wall.  A3 phase electricity connection was also taken.  

However, in August 2011, Ikhankar transferred 375 sqm land as ‘gift deed’ to the government for construction of a crematorium. 

LAND IN DISPUTE?
The subject matter of the suit is a portion admeasuring 375 sqm laying on the North-East corner out of land Gat no 143 portion to the extent of 0H 77.80 R, which is referred as suit property 1b in the case. Kudale had purchased the land in January 2011 from its previous owners Tushar Shankar Mokashi and others. Accordingly, Kudales’ names have been recorded in the record of right by way of mutation entry.  Ikhankars also purchased portion admeasuring 77.80 R laying out at two places, part laying on the East and part laying on South out of said Gat no 143.   Ikhankars had executed the gift deed in favour of panchayat claiming to be the owner of the said 375 sqm portion but actually the said portion is a suit property 1b owned by Kudales. On the basis of said illegal gift deed, the village panchayat made encroachment upon the suit property 1b and started construction of crematorium.

GOVERNMENT VERSION
The panchayat authorities stated before the court, “At the time of construction work, Kudales did not raise any objection. The compound wall is also appearing in the photographs (submitted in court). In the photographs, there is a staircase which shows that since beginning the said space was used for the purpose of a crematorium. The land is not owned by Kudales. According to the grant allotted under the scheme of District Planning Development Fund for 2011- 2012, the funds were made available for building a crematorium on the bank of Gunjwani river and construction started in September 2011. Kudale visited the site several times. After completion of the construction, he has raised the objection with malafide intention. There is no alternate arrangement for doing the last rites. In order to avoid disrespect of dead bodies, the panchayat has constructed the crematorium. The land is in use for the performance of last rites of deceased persons since last several years.”

COURT’S OBSERVATION
After going through the documentary evidence, the court held that Kudales are the owners of the suit property 1b. “Considering the sale deeds it appears that the Kudales, as well as Ikhankars, have purchased the respective portion of 77.80 R each from its previous owner Mokashi and others. It also appears that both sale deeds are executed on the same day and registered with consecutive numbers i.e. 429/2011 and 430/2011. However, the boundaries of the land mentioned in the sale deed and that of Ikhankars, do not match. Hence, it is clear that though Ikhankar has executed Gift Deed but he has gifted the portion of suit property 1b to which he has no title. The sarpanch in his cross-examination stated that he had not verified the title of the land before gift deed. So it is clear that the said construction (of crematorium) is illegal and unauthorised. Therefore Kudales must get possession of the suit property after removing the illegal structure,” the judgement stated.

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