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2016 DIGILAW 1696 (GUJ)

Minaben Jagdishbhai Patel v. State of Gujarat

2016-08-09

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. The present petition has been filed by the petitioners challenging the legality of the order dated 10.07.2014 passed by the respondent - S.S.R.D. in Revision Application No. M.V.V./HAKAP/VADAD/118/2013 (Annexure 'L'). 2. The short facts giving rise to the present petition are that the dispute pertains to the land bearing Survey No. 705 paiki admeasuring 5502 sq. mtrs. situated at village Chhani, District Vadodara. As per the case of the petitioners, the said land was purchased by the petitioner No. 1 by way of registered sale deed dated 03.03.2010 from the respondent No. 6.5 Gangaben Madhavbhai Patel and others, in respect of which the entry being No. 7531 was mutated in the village Form No. 6 (Annexure 'B'). Thereafter, the legal heirs of the deceased respondent No. 6 Kanubhai Madhavbhai Patel and others instituted a Civil Suit being No. 207 of 2010 on 05.04.2010 against the petitioners seeking cancellation of the said sale deed. The said respondents had also filed an application at Exh. 5 seeking temporary injunction in the said suit, however, the same was rejected by the concerned Civil Court, against which the concerned respondents had preferred an Appeal from Order being No. 20 of 2011 before this Court. The said Appeal from Order also came to be rejected by this Court vide the order dated 07.03.2011 (Annexure 'E'). In the meantime, the said respondents challenged the entry being No. 7531 mutated in favour of the petitioners by filing RTS Appeal No. 337 of 2010 (new RTS Appeal No. 151 of 2011) before the Deputy Collector, which came to be rejected vide the order dated 17.10.2011 (Annexure 'F'). The aggrieved respondents, therefore, challenged the said order before the District Collector by filing RTS Appeal, which also came to be rejected vide the order dated 02.05.2013 (Annexure 'G'). The said respondents, therefore, preferred a revision application before the respondent - S.S.R.D., who vide the order dated 10.07.2014, allowed the said revision application, setting aside the order dated 02.05.2013 passed by the Collector, and rejecting the entry No. 7531 mutated in favour of the petitioners. Hence, the petitioners have preferred the present petition. 3. The said respondents, therefore, preferred a revision application before the respondent - S.S.R.D., who vide the order dated 10.07.2014, allowed the said revision application, setting aside the order dated 02.05.2013 passed by the Collector, and rejecting the entry No. 7531 mutated in favour of the petitioners. Hence, the petitioners have preferred the present petition. 3. The petition has been resisted by the respondents more particularly, the respondent No. 6.4 by filing affidavit-in-reply contending inter alia that the petitioner No. 1 happened to be the wife of the petitioner No. 2, and the petitioner No. 2 and one Jayeshbhai Laxmanbhai Prajapati, as the Power of Attorney Holders of the deceased Kanubhai and other respondents, had executed the sale deed in favour of the petitioner No. 1 on 03.03.2010 without receiving any consideration. According to the said respondents, the said deed of Power of Attorney was thereafter cancelled by his father Kanubhai on 30.01.2010. It is further contended that the concerned respondents have already filed a civil suit for cancellation of the said sale deed, which is pending, and therefore, the respondent - S.S.R.D. has rightly cancelled the entry made in favour of the petitioners. The petitioners have filed affidavit-in-rejoinder in reply to the said affidavit-in-reply denying the allegations made by him. 4. Learned advocate Mr. Majmudar for the petitioners relying upon various decisions of this Court vehemently submitted that there being registered sale deed executed in favour of the petitioner No. 1, the concerned authority had rightly mutated the name of the petitioner No. 1 on the basis of the said sale deed, and the same was also confirmed by the Deputy Collector and the Collector, however, the respondent - S.S.R.D. ignoring the settled legal position, directed to delete the said entry. According to him, the registered sale deed holder is entitled to get his/her name mutated in the revenue record in view of the proviso of Section 135(C) of the Gujarat Land Revenue Act. Mr. According to him, the registered sale deed holder is entitled to get his/her name mutated in the revenue record in view of the proviso of Section 135(C) of the Gujarat Land Revenue Act. Mr. Majmudar also submitted that though the concerned respondents have filed the civil suit seeking cancellation of the said sale deed, the trial Court as well as the High Court had not believed the prima facie case in their favour, and not granted any interim relief in respect of the land in question, and the Deputy Collector and the Collector having been satisfied about the said deed executed in favour of the petitioner No. 1, had confirmed the entry made in favour of the petitioner, which entry should not have been disturbed by the respondent - S.S.R.D. However, the learned advocate Mr. Manthan Bhatt for the respondent No. 6.4 has submitted that the concerned respondents having filed substantive suit for cancellation of the sale deed executed in favour of the petitioner No. 1, the S.S.R.D. has rightly not confirmed the orders passed by the Deputy Collector and the Collector. According to him, the Power of Attorney Holders did not have any authority to sell the said land to the petitioner No. 1. 5. In the instant case, it is not disputed that the entry being No. 7531 was mutated in the name of petitioner No. 1 on 06.03.2010 on the basis of registered sale deed executed in her favour on 03.03.2010 in respect of the land in question, which entry was also certified on 03.05.2010 by the competent authority. It is also not disputed that the respondents Nos. 6.1 to 6.5, who were the legal heirs of the deceased respondent No. 6 Kanubhai Patel, have filed the civil suit seeking cancellation of the said sale deed executed in favour of the petitioner No. 1. It is also not disputed that the application Exh. 5 filed by the said respondents seeking temporary injunction in respect of the land in question, pending the said suit, was dismissed by the trial Court by passing a detailed order on 18.10.2010 (Annexure 'D'), against which the said respondents had filed Appeal from Order No. 20 of 2011 before the High Court, however, the said Appeal from Order was disposed of by the High Court, as not pressed for by the said respondents as per the order at Annexure 'E'. It appears that considering the said orders passed by the trial court, as well as by the High Court, the Deputy Collector, dismissed the appeal filed by the concerned respondents against the said entry No. 7531 made in favour of the petitioner No. 1. The said order was also confirmed by the Collector in the appeal filed by the said respondents. Under the circumstances, when the two authorities had confirmed the said entry made in favour of the petitioner No. 1, and when the trial Court and the High Court had also not granted any interim injunction in the suit, as rightly submitted by the learned advocate Mr. Majmudar, the respondent - S.S.R.D. should not have interfered with the said orders, and deleted the entry made in favour of the petitioner No. 1. 6. Mr. Majmudar has drawn the attention of the Court with regard to the findings recorded by the respondent - S.S.R.D. to the effect that Power of Attorney Holders of the concerned respondents did not have the power to execute the sale deed, and therefore, the ownership of the land in question had not passed to the petitioners. In the opinion of the Court, such finding recorded by the respondent - S.S.R.D. is absolutely perverse and without jurisdiction. It is needless to say that in the revision application arising out of RTS proceedings, the respondent - S.S.R.D. did not have jurisdiction to decide about the title or ownership of the land in question. The said revision having been filed by the concerned respondents under Section 108(6)(A), the respondent authority- S.S.R.D. was exercising the powers of the State Government, and it had to satisfy itself only as to the regularity and legality or propriety of the decision or order passed in the said RTS proceedings. In the instant case, the respondent - S.S.R.D., by observing that the title of the propriety had not passed to the petitioners, had traveled beyond its jurisdiction, and therefore, the impugned order being perverse and illegal, deserves to be set aside. 7. At this juncture, it is required to be noted that as per the settled legal position, the revenue authorities dealing with the RTS proceedings, have no jurisdiction or authority to decide about the question of title, and if any dispute with regard to the title arises, the parties have to approach the Civil Court. 7. At this juncture, it is required to be noted that as per the settled legal position, the revenue authorities dealing with the RTS proceedings, have no jurisdiction or authority to decide about the question of title, and if any dispute with regard to the title arises, the parties have to approach the Civil Court. Beneficial reference of the decision of this Court in the case of Ratilal Chunilal Solanki versus Shantilal Chunilal Solanki reported in 1996 (2) GLR 525 , be made in this regard. It is also held by this Court in the case of Nathubhai Meraman Darji versus Special Secretary (Appeals) reported in 1996 (3) GCD 691 to the effect that by virtue of the second proviso to Section 135-C of the Code, the purchaser is exempted from making report about the transaction made by a registered document, and that its suo moto cognizance is required to be taken by the Village Accountant, for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent Civil Court for annulling or avoiding such transaction as provided under Section 31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. The said decisions have also been followed by this Court in the case of Gandabhai Dalpatbhai Patel versus State of Gujarat reported in 2005 (2) GLR 1370 . 8. In view of the afore stated legal position, it is required to be held that the impugned order passed by the respondent - S.S.R.D. suffers from gross illegality and perversity. The said order, therefore, deserves to be set aside, and is hereby set aside. The orders passed by the Deputy Collector and the Collector are hereby confirmed. However, it is directed that the entry No. 7531 made in favour of the petitioners, shall be subject to the outcome of the Civil Suit being No. 207 of 2010 pending in the Court of Civil Judge (C.D.), Vadodara, and that an endorsement in this regard shall be also made in the village Form No. 6. 9. Subject to the aforesaid direction, the present petition is allowed. Rule is made absolute to the aforesaid extent.