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2017 DIGILAW 1535 (GUJ)

Mer Devabhai Oghadbhai v. State of Gujarat

2017-09-04

J.B.PARDIWALA

body2017
ORDER : J.B. PARDIWALA, J. 1. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 10th of April, 2017 passed by the Special Secretary, Revenue Department, at Ahmedabad, by which the SSRD allowed the Revision Application filed by the respondent No. 6 herein, thereby quashing and setting aside the order passed by the Collector, Jamnagar, dated 19.01.2015 2. The dispute between the parties pertains to mutation of entry bearing No. 3588 in the revenue record with respect to the land bearing old Block/Survey No. 488 consolidated Block No. 817. The SSRD, while allowing the Revision Application filed by the respondent No. 6 herein held as under:- Upon considering the submissions made by the applicants and opponent, documentary evidences lead, written/oral submissions made by the advocates for parties and the impugned order of the Collector as well as on perusal of the case papers and details of the original record, it appears that land bearing old block no. R.S. No. 488 New block no. 817, of village: Amprapar, Taluka Jamjodhpur, was running in the name of Hasam Ali. After his demise, name of his heir Satar Kasam was entered and certified vide mutation entry no. 2834 in the revenue record. Thereafter, on sale of the disputed land by Satar Kasam to present applicant Bhuma Rama, vide registered sale deed no. 196, dated 28.2.2005, mutation entry no. 2896 was entered. Against the said entry present opponent Deva Oghad raised objection which was registered as disputed case no. 1/2005-06 whereby by order dated 29.01.07 mutation entry no. 2896 was cancelled. Before mutation entry no. 2834 was taken in review, mutation entry no. 2896 was ordered to be cancelled by the Mamlatdar. Against mutation entry no. 2834, the father of the present opponent no. 4, namely Oghad Khima and Lakhman Khima had filed appeal before the Assistant Collector, Khambhaliya which was rejected vide order dated 6.11.2006 on the ground of delay. That in view of the order dated 6.11.2006 passed by the Assistant Collector, again mutation entry for sale was applied and entered vide entry no. 3588 and the Circle Officer had certified the said entry on 25.5.2009. Against which the present opponent no. 4 had preferred appeal before Prant Officer, Lalpur in which vide order dated 9.4.2012, the order certifying mutation entry no. 3588 was cancelled. 3588 and the Circle Officer had certified the said entry on 25.5.2009. Against which the present opponent no. 4 had preferred appeal before Prant Officer, Lalpur in which vide order dated 9.4.2012, the order certifying mutation entry no. 3588 was cancelled. Against which applicant has preferred revision before the Collector, Jamnagar. The Mamlatdar in the disputed case no. 1/2005-06, had vide order dated 29.1.2007 directed to take in review the mutation entry no. 2834 as Satar Kasam was not the class I heir of the deceased. But upon perusal of the revenue record from the beginning, the successive transaction has occurred whereby upon demise of Kasam Ali mutation entry no. 2267, dated 16.2.99 has been recorded entering the name of Kasam seta. The said entry has been certified on 20.3.90. Thereafter, Kasam Seta has sold the disputed land by registered sale deed no. 196, dated 28.2.2005 and which fact has been vide mutation entry no. 3588, dated 23.4.2009 and certified on 25.5.2009. The applicant of this case is the first purchaser. Registered Sale deed has not been set aside. Applicant is not thee bona-fide purchaser. The injunction application given by the opponent no. 4 has been rejected by the Hon'ble Civil Court. The applicant claims to be in possession occupation of the disputed land. Therefore, considering the revenue record of the case, in the interest of justice, the impugned order passed by the Collector, Jamnagar is required to be interfered. ORDER Considering the merits the revision applicant is hereby allowed. And the impugned order passed by the Collector, Jamnagar being no. HKP/REV/81/11-12, dated 19.01.2015 is hereby quashed. And a per aforesaid discussion, the mutation entry no. 3588, dated 23.4.2009 entered in the revenue record is approved. 3. Mr. Foram T. Sheth, the learned counsel appearing for the applicant concedes that although his client has a sale deed in his favour of the year 1970, yet till this date, his name has not been mutated in the record of rights. 4. I do not want to go into the merits of the controversy for the simple reason that the applicant herein has filed a Special Civil Suit No. 36 of 2010 in the Court of the Principal Senior Civil Judge, Jamkhambaria. It appears that the Civil Suit, as on date, is only for permanent injunction. It also appears that the applicant herein, being the plaintiff, prayed for injunction below Exh. It appears that the Civil Suit, as on date, is only for permanent injunction. It also appears that the applicant herein, being the plaintiff, prayed for injunction below Exh. 5, which has been declined by the Civil Court. According to the learned counsel appearing for the applicant, his client would now amend the plaint for the purpose of seeking a declaration to quash and set aside the sale deed executed in favour of the respondent No. 6 herein, which led to the mutation of entry bearing No. 3588. 5. Since the parties are already before the Civil Court, let their rights and liabilities be decided in the Civil Suit. 6. This petition is disposed of with a clarification that the entry bearing No. 3588 will be subject to the final outcome of the Special Civil Suit No. 36 of 2010 filed by the applicant herein. 7. At this stage, learned counsel for the applicant after perusing his papers, makes a statement that his client, in fact, has filed the suit for declaration as well as injunction.