Alarakhiben Yakubbhai v. State of Gujarat — 1993 DIGILAW 530 (GUJ)

JUDGMENT : A. N. Divecha, J. The order passed by the Additional Mamlatdar and Agricultural Lands Tribunal at Dhrangadhra (`the First Authority' for convenience) on 28th November, 1980 in Ceiling Case No. 381 of 1976-77 as affirmed in appeal by the order passed by the Deputy Collector at Dhrangadhra (`the Appellate Authority' for convenience) on 30th March, 1989 in Ceiling Appeal No. 5 of 1988-89 as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (`the Tribunal' for convenience) on 23rd November, 1992 in Revision Application No. TEN. B.A. 513 of 1989 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order the First Authority declared the holding of the brother of the petitioner to be in excess of the ceiling area by 10 acres 28 gunthas and declared in all 11 acres 37 gunthas of lands to be surplus vesting in the State Government free from all encumbrances in view of the relevant provisions contained in Section 18 of the Gujarat Agricultural Lands Ceiling Act, 1960 (`the Act' for brief). 2. This litigation has a somewhat chequered history. Respondent No. 2 herein is the petitioner's real brother. He was found holding lands in all ad-measuring 64 acres 26 gunthas in village Jainabad Taluka Dasada District Surendranagar (`the disputed lands' for convenience). The ceiling area fixed for that local area under the Act is 54 acres. Thereupon the First Authority undertook the necessary inquiry under Section 21 of the Act. It came to be registered as Ceiling Case No. 381 of 1976-77. By his order passed on 28th November, 1980 in Ceiling Case No. 381 of 1976-77 the First Authority came to the conclusion that the holding of the petitioner's brother (respondent No. 2 herein) was in excess of the ceiling area by 10 acres 26 gunthas of lands and declared in all 11 acres 37 gunthas to be surplus vesting in the State Government free from all encumbrances in view of the relevant provisions contained in Section 18 of the Act. Its copy is at Annexure-B to this petition. Respondent No. 2 appears to have carried the matter in appeal before the Appellate Authority by means of his Ceiling Appeal No. 26 of 1981-82. By his order passed on 9th October, 1981 in the aforesaid appeal, it came to be dismissed as time- barred. Its copy is at Annexure-B to this petition. Respondent No. 2 appears to have carried the matter in appeal before the Appellate Authority by means of his Ceiling Appeal No. 26 of 1981-82. By his order passed on 9th October, 1981 in the aforesaid appeal, it came to be dismissed as time- barred. Respondent No. 2 thereupon carried the matter in revision before the Tribunal by means of his Revision Application No. 1232 of 1981. By its decision rendered on 13th December, 1982 in the aforesaid revisional application, the Appellate order came to be set aside and the matter was remanded to the Appellate Authority for his fresh decision according to law. By his order passed on 14th April, 1983, the Appellate Authority again dismissed the aforesaid appeal preferred by Respondent No. 2 herein. He thereupon carried the matter again in revision before the Tribunal by means of his Revision Application No.TEN. B.A.1059 of 1983. It came to be rejected for default of appearance by the order passed by the Tribunal on 17th April, 1986. It appears to have been restored to file on an application made by Respondent No. 2 herein. By its decision rendered on 30th September , 1986 in the aforesaid revisional application, the Tribunal rejected it. It appears that thereafter the present petitioner moved the Appellate Authority by means of her Tenancy Appeal No. 5 of 1988- 89 questioning the correctness of the order at Annexure-B to this petition. By his order passed on 30th March, 1989 in Ceiling Appeal No. 5 of 1988-89, the Appellate Authority dismissed it as time-barred. Its copy is at Annexure-C to this petition. The aggrieved petitioner carried the matter in revision before the Tribunal by means of her Revision Application No. TEN. B.A.513 of 1989. By its decision rendered on 23rd November, 1992 in the aforesaid revisional application, the Tribunal rejected it. Its copy is at Annexure-D to this petition. The aggrieved petitioner has thereupon knocked the doors of this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the order at Annexure-B to this petition as affirmed in appeal by the Appellate order at Annexure-C to this petition as further affirmed in revision by the decision at Annexure-D to this petition. 3. 3. The case of the petitioner before the Appellate Authority and before the Tribunal was to the effect that the lands mutated in the name of respondent No. 2 herein originally belonged to the father of the petitioner and respondent No. 2 and on the death of the father both the petitioner and respondent No. 2 inherited the properties of the deceased in accordance with the rules of succession under the Muslim Law. According to the petitioner, her father died some time in 1945 and thereupon she along with her brother (respondent No. 2 herein) inherited the properties left by the deceased and both the brother and the sister became tenants in common qua the disputed lands. This aspect of the case has not been considered by the Appellate Authority as well as the Tribunal and that is the grievance voiced by the present petitioner in this petition before me. 4. The petitioner has chosen to produce at Annexure-A to this petition an abstract from the record of rights showing that the disputed lands originally belonged to her father and on his death some time in 1945 his properties were mutated in the names of her uncle and her brother (respondent No. 2 herein). It is true that her name does not figure in the revenue records at Annexure-A to this petition. That however should not preclude the authority from examining her case on merits. Absence of her name in the revenue records by itself does not result in denial her title to the concerned property. It cannot be gainsaid that revenue records are maintained for fiscal purposes and entries therein will prima facie be evidence of title to the concerned property and nothing else or more. Even Section 135J of the Bombay Land Revenue Code, 1879 also raises a rebuttable presumption with respect to the entries in the revenue records. Rebuttable presumption can never be said to be conclusive. It can be rebutted by means of cogent and convincing evidence. I think the Appellate Authority as well as the Tribunal has gone way ward so far as this aspect of the case is concerned. 5. Rebuttable presumption can never be said to be conclusive. It can be rebutted by means of cogent and convincing evidence. I think the Appellate Authority as well as the Tribunal has gone way ward so far as this aspect of the case is concerned. 5. At this stage it would be quite proper to look at the relevant rules of Succession found contained in the Principles of Muslim Law as mentioned in what can be styled as the Bible thereof in the Book by learned Author Mulla by the title of `Principles of Mahomedan Law' in its Nineteenth Edition edited by Hidayatullal and published by N.M. Tripathi Private Limited, Bombay in 1990 (`the Book' for convenience). At this stage, it may be mentioned that respondent No. 2 has not controverted the claim of ownership over the disputed lands to the extent of her share according to the rules of Succession mentioned in the Book. Respondent No. 2 has not chosen to appear either in person or through any Advocate nor has he chosen to file any affidavit-in-reply to this petition. The claim of ownership of the disputed lands to the extent of the petitioner's share therein can be controverted by respondent No. 2 as he would be vitally concerned and interested in refuting such claim of her. As pointed out hereinabove, he has not chosen to do so. In that view of the matter, her claim of the ownership of the disputed lands to the extent of her share therein can be said to have been established at least qua respondent No. 2 if found justifiable from the rules of Succession mentioned in the Book. As transpiring from the Book, a daughter would inherit her father's property as a sharer in absence of a brother and as a residuary when her brother is or her brothers are alive. As a residuary she would be entitled to ½(one-half) share of her brother's entitlement in the father's property. In the present case, the petitioner has claimed that her father was survived by herself and her brother (respondent No. 2 herein). She would therefore be entitled to ½(one-half) of her brother's share. It is not clear whether or not their mother was alive at that time. In the present case, the petitioner has claimed that her father was survived by herself and her brother (respondent No. 2 herein). She would therefore be entitled to ½(one-half) of her brother's share. It is not clear whether or not their mother was alive at that time. If she was alive, her share might have to be considered and the rest will have to be divided between the brother and the sister in the proportion of 1 : 2. This position of law is not in dispute and cannot be disputed. According to well settled principles of Muslim Law mentioned in the Book, heirs to the property left behind by the deceased would take it as tenants in common. In that view of the matter, qua the disputed lands, the petitioner and respondent No. 2 would be the tenants in common. In other words, they would be separate owners to the extent of their respective shares therein. It would mean that they would be separate persons for the purposes of Section 6 of the Act. 6. It may be mentioned that in the present case the petitioner and her brother (respondent No. 2 herein) are not found residing together. Even if they are found residing together they would not constitute a joint family within the meaning of the expression contained in Section 2 (16) of the Act. It is an admitted position on record that the petitioner and respondent No. 2 are Muslims and not Hindus. Their joint-ness in residence would not make them a joint family within the meaning of Section 2(16) of the Act. As provided therein, in order to make them a joint family, it has to be established that by custom or usage they are joint in estate or residence. It is nobody's case before me or for that matter it was nobody's case before the Appellate Authority or before the Tribunal that the petitioner and her brother (respondent No. 2 herein) constituted a joint family within the meaning of Section 2 (16) of the Act. In that view of the matter, there is no escape from the conclusion that the petitioner and respondent No. 2 herein would be separate persons for the purposes of Section 6 of the Act. 7. I am supported, rather fortified, in my view by the unreported ruling of this Court in Special Civil Application No. 700 of 1969. In that view of the matter, there is no escape from the conclusion that the petitioner and respondent No. 2 herein would be separate persons for the purposes of Section 6 of the Act. 7. I am supported, rather fortified, in my view by the unreported ruling of this Court in Special Civil Application No. 700 of 1969. D/d. 18th November, 1972 (Coram : B.J. Divan, J.). In that case the lands were mutated in the name of the minor son on the death of his father and managed by the mother of the minor son. When the question cropped up with respect to the proceedings under the Act, this Court came to the conclusion that the mother had her one-eight share in the lands in question by virtue of the rules of Succession enshrined in Muslim Law and her share will have to be separately treated for the purposes of the Act. In the course of the judgment, this Court has held that under Muslim Law the heirs to the property left by the deceased would take it as tenants in common and even joint residence of the sharers would not constitute joint family in absence of any evidence regarding usage or custom when the parties are Muslims by religion. This Court has examined the definitions of the word "person" and the expression "joint family" occurring in Sections 2(21) and 2(16) respectively in the Act for the purposes of determining as to the true position of law. The view taken by this Court in the aforesaid ruling is obviously binding to me sitting as a Single Judge. Even otherwise I am in respectful agreement therewith. The aforesaid unreported ruling of this Court is on all fours applicable in the present case. 8. It is true that the petitioner preferred her appeal against the order at Annexure-B to this petition after a period of little more than eight years. The impugned order at Annexure-B to this petition was passed on 28th November, 1980 and she preferred her appeal culminating into the Appellate order in this petition on 20th January, 1989. She has also made an application for condonation of delay in preferring the appeal. She stated therein that she never knew about the proceedings initiated against her brother and when she came to know of the proceedings she preferred her appeal after obtaining the necessary copies for the purpose. She has also made an application for condonation of delay in preferring the appeal. She stated therein that she never knew about the proceedings initiated against her brother and when she came to know of the proceedings she preferred her appeal after obtaining the necessary copies for the purpose. This case of hers has not been believed only on the ground that at no point of time she tried to implead herself as a party to the proceedings initiated by or instituted against her brother (respondent No. 2 herein). Her plea that she came to know of the proceedings only when an attempt was made to take possession of the land was not believed only on that ground. I think there was no justification in disbelieving her case only on that score. At pointed out hereinabove, it is nobody's case that the petitioner and respondent No. 2 were residing together. It is an admitted position on record that the petitioner and her brother (respondent No. 2 herein) are Muslims. It is our common knowledge that Muslims, more particularly their women folk, have by and large remained illiterate and uneducated. In a male- dominated society, such women are not allowed to know anything about their rights. That explains how and why her name did not figure in the record of rights at Annexure-A to this petition. So long as her brother might have continued to accept her share in the disputed lands, she might not have bothered to know whether or not her name figured in the revenue records at Annexure-A to this petition. Her ignorance and illiteracy should not result into deprivation or denial of her rights under the Act. 9. The Supreme Court and this Court have time and again required the Courts to take a liberal approach to delay condonation applications. The Courts would necessarily include the Tribunals and also all quasi- judicial authorities. A very significant ruling on the point is the one rendered by the Supreme Court in the case of Collector Land Acquisition, Anantnag v. katiji reported in AIR 1987 SC 1353 . It has been held therein that, unless the delay is gross and has remained unexplained or unless it is attributable to some ulterior motive on the part of the concerned litigant, delay should ordinarily be condoned. 10. It has been held therein that, unless the delay is gross and has remained unexplained or unless it is attributable to some ulterior motive on the part of the concerned litigant, delay should ordinarily be condoned. 10. In this connection a reference also deserves to be made to the binding ruling of the Supreme Court in the case of Ram Sumiran v. D.D.O., reported in AIR 1985 SC 606 . In that case the delay of six years in bringing heirs of a deceased respondent to the record of the petition under Article 226 of the Constitution of India was condoned despite the knowledge of the demise of that party on the part of the petitioner. In the course of its judgment, the Supreme Court has kept in mind ignorance illiteracy and poverty of inhabitants of this country. 11. I think no Court or Tribunal or quasi-judicial Authority in this country can blissfully remain ignorant and oblivious to the stark reality of our Indian polity. It was nobody's case that the delay on the part of the present petitioner in approaching the Appellate Authority was deliberate or with some ulterior motive. It did not remain unexplained. It is true that the petitioner did not file any affidavit in support of her delay condonation application. It appears that she was not called upon to do so. She might have willingly filed an affidavit if she was required to do so. Simply because no affidavit has been filed is no ground to reject the delay condonation application unless the party refuses to file such affidavit even after called upon to do so or the procedural law requires it to be done. The Appellate Authority in his impugned order at Annexure-C to this petition has not stated that the petitioner did not file any affidavit in support of her delay condonation application despite giving her an opportunity to do so. The Appellate Authority has also not indicated in his order at Annexure-C to this petition that the procedural law governing appeals before him would require and affidavit in support of the delay condonation application. In that view of the matter, the liberal approach to the delay condonation application required to be made as ordained by the Supreme Court in its aforesaid rulings would certainly go in favour of the petitioner in getting the delay in preferring her belated appeal condoned. In that view of the matter, the liberal approach to the delay condonation application required to be made as ordained by the Supreme Court in its aforesaid rulings would certainly go in favour of the petitioner in getting the delay in preferring her belated appeal condoned. I think the impugned order at Annexure-C to this petition cannot be sustained in law. With respect, the Tribunal seems to have made the same mistake as made by the Appellate Authority culminating into the decision at Annexure-D to this petition. 12. In view of my aforesaid discussion. I am of the opinion that the impugned Appellate order at Annexure-C to this petition as affirmed in revision by the decision at Annexure-D to this petition cannot be sustained in law. It has to be quashed and set aside. The matter will have to be remanded to the Appellate Authority for restoration of the appeal in question to file and for his fresh decision according to law in the light of this judgment of mine. 13. In the result, this petition is accepted. The impugned order passed by the Deputy Collector at Dhrangadhra on 30th March, 1989 in Ceiling Appeal No. 5 of 1988-89 at Annexure-C to this petition as affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad on 23rd November, 1992 in Revision Application No. TEN. B.A. 513 of 1989 at Annexure-D to this petition is quashed and set aside. The matter is remanded to the Deputy Collector at Dhrangadhra for restoration of Ceiling Appeal No. 5 of 1988-89 to file and for his fresh decision according to law in the light of this judgment of mine. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. Petition Allowed.