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2016 DIGILAW 480 (GUJ)

Gangaben v. State of Gujarat

2016-02-26

N.V.ANJARIA

body2016
JUDGMENT : N.V. ANJARIA, J. 1. It is the order dated 04th March, 1997 of Deputy Secretary (Appeals), Revenue Department of the State Government, passed in Revision Application No. 36 of 1994, is challenged in the present petition. Order dated 22nd September, 1994 which came to be upheld and confirmed by the Revisional Authority is also challenged. The petitioner has further prayed to confirm order of the Deputy Collector passed in RTS Appeal Nos. 26 of 1993 and 27 of 1993. 2. The facts of the case available from pleadings and the record of the petition may be outlined. 3. Petitioner No. 1-Gangaben had her son-Chandubhai-respondent No. 2 herein, born out of her first wedlock with one Lakhabhai. The said Lakhabhai expired. Gangaben married again with Prabhubhai Bhavanbhai. Out of wedlock of Gangaben and Prabhubhai, a daughter and a son-petitioner Nos.2 and 3 respectively herein were born. Chandubhai above was minor and was brought up by petitioner No. 1. Prabhubhai-second husband of Gangaben died on 28th August, 1991. After his death, names of the present petitioners were entered into the revenue record in respect of land bearing Survey Nos. 43, 52 and 91 situated at Village Haripura. The Mutation Entry No. 1798 dated 15th March, 1992 was made. Similarly in respect of land Survey Nos. 61/1, 73/3, 143/1 and 378/5 of Village Sakarpole, Entry No. 2794 came to be mutated on 25th January, 1992 in the name of the petitioners. 3.1 It appears that respondent No. 2 filed his objection with the Mamlatdar on 21st May, 1993 in relation to the said Entries claiming that his name also ought to have been entered as an heir and legal representative. It appears that the Mamlatdar entered the name and certified the Entry, which came to be set aside by the Deputy Collector in Appeal Nos. 26 of 1993 and 27 of 1993 by his order dated 01st February, 1994. The two Entries which were challenged in the said two appeals, thus stood in the name of the petitioners as mutated. 3.2 Against the aforesaid order of Deputy Collector, respondent No. 2 preferred Revision Application Nos. 16 of 1994 and 17 of 1994 before the Collector, who by his common judgment dated 22nd September, 1994 allowed the revision applications. The two Entries which were challenged in the said two appeals, thus stood in the name of the petitioners as mutated. 3.2 Against the aforesaid order of Deputy Collector, respondent No. 2 preferred Revision Application Nos. 16 of 1994 and 17 of 1994 before the Collector, who by his common judgment dated 22nd September, 1994 allowed the revision applications. The aggrieved petitioners preferred the revision application before the Secretary (Appeals) but the Revisional Authority confirmed the order of the Collector, which led the petitioners to present this petition. 3.3 Respondent No. 2-Chandubhai was minor when Gangaben remarried with said Prabhubhai and son-Chandubhai born out of previous wedlock, was brought up by mother Gangaben as Agaliyat son. The Deputy Collector while holding in favour of the petitioners, held that the son of former husband did not have any right in the property of step-father, and that he inherited the property of his real father Lakhabhai. The Collector as well as the Revisional Authority treated Chandubhai as adopted son to conclude that his name was duly entered on that basis in respect of properties of Prabhubhai. 4. Learned advocate for the petitioners Mr. J.M. Patel assailed the impugned orders by submitting that the entire reasoning of the Revisional Authority was erroneous as Chandubhai was never an adopted son, there was no adoption and had no legal right to inherit the property of deceased Prabhubhai. On the other hand, learned advocate Mr. Bharat Surti emphasised that both the authorities, namely, Collector and the Secretary (Appeals) rightly held that Chandubhai was liable to be treated as adopted son. He submitted that the said finding was arrived at in view of the fact that said Chandubhai was the son of Gangaben and he was brought up by Gangaben and Prabhubhai. He submitted that concurrent findings were recorded by the two authorities which may not be upset by the writ court, in support of which proposition, he relied on the decision of the Supreme Court in Bhimashya v. Janabi (Smt) alias Janawwa, (2006) 13 SCC 627. He submitted that concurrent findings were recorded by the two authorities which may not be upset by the writ court, in support of which proposition, he relied on the decision of the Supreme Court in Bhimashya v. Janabi (Smt) alias Janawwa, (2006) 13 SCC 627. 4.1 Learned advocate for the respondents further submitted countering the case of the petitioners that the bringing up of Chandubhai was even prior to coming into force of the Hindu Adoption and Maintenance Act, therefore on the basis of provisions of the said law, the petitioners could not question the finding about the status of Chandubhai as adopted one, when in fact he from the childhood resided with and up-brought by Gangaben and Prabhubhai; he became adopted son by customary way. It was submitted that in any view, the Entry has continued for long period and not required to be reversed when there is no apparent infirmity in the findings recorded by the authorities. 5. The revenue authorities in the impugned orders, while accepting the case of respondent No. 2, recognised his right to the property. It was on such basis and the reasoning that the name of respondent No. 2 entered in the revenue record was accepted and upheld. What was held was that respondent No. 2 by way of heritary right succeeded the properties of his step-father Prabhubhai. Respondent No. 2 was treated as an adopted son to hold that he had his right with such capacity in the property in question. The authorities committed error at least in two ways in reaching such a conclusion. Firstly, the revenue authorities were not competent to pronounce upon the status of respondent No. 2 to be that of an adopted son. Adoption is a legal concept and in order to become 'adopted' conditions contemplated in the law for the purpose must fulfil. Apart it, the revenue authorities cannot rule on that aspect. In the second place, the revenue authorities neither have any jurisdiction to decide about the inheritance of property by person. They are not supposed to record finding on the heritary right and they cannot decide that a particular person is entitled to succeed a particular property. 5.1 The principle that the revenue authorities are not supposed, nor are vested with such powers, to decide on the right of inheritance, necessary following observations of the Apex Court in Ramchandra Dagdu Sonvarne (Dead) by L.Rs. 5.1 The principle that the revenue authorities are not supposed, nor are vested with such powers, to decide on the right of inheritance, necessary following observations of the Apex Court in Ramchandra Dagdu Sonvarne (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. (2009) 10 SCC 273 . "36. The appellants had filed OS No. 104 of 1953 before the civil court inter-alia seeking an order of permanent injunction against respondent Vithu and others on the ground that they are watandars of suit lands and they are in peaceful possession and enjoyment of the suit lands. Respondent Vithu had set up a defence that since he is the adopted son of the deceased watandar, he has the right, title and interest in the watanlands. Therefore, the trial court had framed an issue, whether the defendants prove that Defendant 1 was the adopted son of his grandmother and as such was in possession of the suit property. The trial court after elaborate discussion had answered the issue against Vithu and had concluded that Vithu failed to prove that he was the adopted son of deceased watandar and, therefore, he cannot have any right, title or interest in the suit lands as watandar. In this case, though the suit was for bare injunction, title to the properties was put on issue by the defendant Vithu claiming that he is the adopted son of deceased watandar and, therefore, he has watandari rights in the suit lands. In order to decide the prayers made in the suit, the issue of adoption had to be decided. The issue falls within the exclusive jurisdiction of the civil court. In the subsequent proceedings before the Sub-Divisional Officer, the issue was whether Vithu was the adopted son of the deceased watandar and, therefore, having hereditary interest in any inferior village watan under the Watans Abolition Act, 1958. To decide this issue, the Sub-Divisional Officer firstly has to decide the issue, whether Vithu is the adopted son of the deceased watandar. This issue is one which does not fall within the jurisdiction of the Revenue Court but falls within the exclusive jurisdiction of the civil court. Since the issue of adoption was already decided between the same parties by a competent civil court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Since the issue of adoption was already decided between the same parties by a competent civil court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Therefore, in our opinion, the principles of res judicata would apply to the proceedings before the Sub-Divisional Officer." 5.2 It was therefore not within the domain of powers of the authorities while exercising the revenue jurisdiction to speak about and record finding to treat respondent No. 2 as adopted son and on that footing justifying the mutation of Entry in his name in respect of the properties in question. No amount of facts would have allowed the revenue authorities to decide the issue on adoption. The authorities acted outside the purview of their powers to treat and hold respondent No. 2 as an adopted son. Respondent No. 2 had inherited the properties of his real father. The revenue authorities were entirely incorrect in holding that respondent No. 2 was entitled to succeed the properties of the step-father Prabhubhai. Such questions were within the exclusive jurisdiction of civil court and indeed outside the jurisdictional sweep of revenue authorities. 6. As the authorities have committed an error of law by deciding the questions not within the purview of their powers, such manifest error cannot be allowed to stand by accepting a stock-contention that the finding, though tainted with illegality, since by two authorities, was not required to be disturbed. A finding contrary to legal position is a perverse finding. The orders based on such finding cannot be allowed to stand. At the same time, it goes without saying that the parties may file suit and get their rights determined from the civil court in accordance with law. 7. As a result of the aforesaid discussion, the petition is allowed. The order dated 4th March, 1997 passed by the Revisional Authority-respondent No. 1 herein in Revision Application No. 36 of 1994 confirming the order dated 22nd September, 1994 by the Collector, Bharuch is hereby quashed and set aside, in turn order of the Deputy Collector dated 1st February, 1994 in RTS Appeal Nos. 26 and 1993 and 27 of 1993 would stand. Rule is made absolute with no order as to the costs. Petition allowed.