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2017 DIGILAW 339 (GUJ)

Bhikhubhai Naranji v. Chhotubhai Ranchhodji Desai

2017-02-09

B.M.TRIVEDI

body2017
JUDGMENT : B.M. Trivedi, J. 1. The petitioners have filed the present petition, challenging the impugned order passed by the Secretary, Revenue Department (Appeals) (hereinafter referred to as "the SSRD") in Revision Application No. 55/1995, in so far as it related to the cancellation of the Entry No. 621 in Revenue Record in respect of the land in question purchased by the original petitioner Bhikhubhai Naranji Desai. 2. The short facts giving rise to the present petition are that one Ranchhodbhai Makanji Desai was the owner of several lands, including the land in question, i.e. Survey No. 150/2 is situated at Village Dashwada, Taluka Pardi, District Valsad. The said Ranchhodbhai Makanji Desai had four sons named Dahyabhai Ranchhodbhai, Chhotubhai Ranchhodbhai, Babubhai Ranchhodbhai and Ramanbhai Ranchhodbhai. On the death of the said Ranchhodbhai Makanji Desai on 24.9.1958, a revenue entry being Entry No. 312 came to be posted in the Village Form No. 6 by which the names of his four sons were entered. It appears that thereafter one of the sons i.e. Babubhai also expired on 28.12.1973 and the name of his wife Induben was mutated as per the Entry No. 519. Another Entry No. 620 also came to be posted on 2.8.1985, on the death of Dahyabhai, and the names of his heirs were entered in the revenue record. It is the case of the petitioners that during the lifetime of the four sons of Ranchhodbhai Makanji Desai, an Arbitrator was appointed for partition of the properties left by their father Ranchhodbhai Makanji Desai and accordingly the land in question had fallen into the share of Dahyabhai. The predecessor of the petitioners i.e. Bhikhubhai Narsibhai Desai purchased the said property by way of registered sale deed dated 2.6.1985 from Manchhaben alias Leelaben, Widow of Dahyabhai. An Entry being Entry No. 621 came to be made in the revenue record on 3.8.1985. 3. It is further case of the petitioners that after a period of about seven years, one of the sons of Ranchhodbhai Makanji Desai i.e. Chhotubhai challenged the three entries i.e. Entry Nos. 519, 620 and 621 by filing the RTS Appeal No. 49/1992 before the Deputy Collector. The Deputy Collector vide the order dated 30.6.1993 allowed the said Appeal and directed the cancellation of the said there entries and remanded the case back to the Mamlatdar. 519, 620 and 621 by filing the RTS Appeal No. 49/1992 before the Deputy Collector. The Deputy Collector vide the order dated 30.6.1993 allowed the said Appeal and directed the cancellation of the said there entries and remanded the case back to the Mamlatdar. Being aggrieved by the said order, the said Bhikhubhai Naranji Desai, father of the petitioners preferred a Revision Application being No. 162/1993 before the Collector, who vide the order dated 16.11.1994 allowed the same and directed to retain all the three entries in the revenue record. The aggrieved Chhotubhai, therefore, filed the Revision Application before the SSRD under Rule 108(6A) of the Land Revenue Rules, who vide the order dated 9.1.2004 partly allowed the said Revision Application, by directing to retain the Entry Nos. 519 and 620, however, directed to cancel the Entry No. 621. The petitioners, who are the heirs of deceased Bhikhubhai therefore, have filed the present petition so far as the said order relates to the cancellation of the Entry No. 621. 4. It is sought to be submitted by the learned Advocate Mr. Mehta for the petitioners that the impugned order passed by the SSRD is dehors his powers under Rule 108 of the said Rules, inasmuch as he has decided the civil rights of the parties in RTS proceedings. Placing reliance on the decisions of this Court in the case of Mithusinh Samrathsinh Parmar Vs. State of Gujarat and Ors., reported in 2006 (2) GLH 743 and in the case of Dudhiben Muljibhai Patel and Anr. Vs. State of Gujarat and Ors., he has submitted that the concerned authority is bound to make the entry when the information is given with regard to the purchase of the property through registered sale deed. Mr. Mehta has also relied on the decision of this Court in the case of Gandabhai Dalpatbhai Patel Vs. State of Gujarat and Ors., reported in 2005 (2) GLR 1370 , to submit that the revenue authority can not assume the jurisdiction of the Civil Court while examining the mutation entries. 5. However, Mr. Bhatt, learned Advocate appearing for the respondent Nos. 1.1 to 1.3, 3.2 and 4 submitted that the said Manchhaben widow of Dahyabhai did not have the authority to sell the land in question, the same being jointly owned by Dahyabhai and his brothers. 5. However, Mr. Bhatt, learned Advocate appearing for the respondent Nos. 1.1 to 1.3, 3.2 and 4 submitted that the said Manchhaben widow of Dahyabhai did not have the authority to sell the land in question, the same being jointly owned by Dahyabhai and his brothers. According to him, no such partition as alleged through the intervention of the Arbitrator had taken place and that the land in question was fraudulently transferred in favour of the predecessor of the petitioners. 6. Ms. Nisha Parikh, learned Advocate appearing for the respondent No. 3.1 has supported the submission of Mr. Bhatt, in so far as the partition of the land in question was concerned, however, she fairly submitted that the said respondent had not challenged any of the entries. 7. In the instant case, it is not disputed that the deceased Bhikhubhai Naranji Desai, father of the petitioners had purchased the land in question on 2.6.1985 from Manchhaben, widow of Dahyabhai by way of registered sale deed. It is also not disputed that the Entry No. 621 was made in that regard on 3.8.1985. The said entry came to be challenged by one of the sons of Ranchhodbhai Makanji Desai i.e. Chhotubhai along with other two entries being Nos. 519 and 620, in the year 1992 i.e. after about seven years by filing Appeal before the Deputy Collector. The Deputy Collector entertained the said Appeal, which was grossly time-barred, and allowed the same by holding that there was no documentary evidence produced to show that the partition had taken place amongst the sons of the said Ranchhodbhai Makanji Desai. The said Bhikhubhai Naranji Desai having challenged the said order before the Collector, the Collector set aside the order passed by the Deputy Collector by holding that the Chhotubhai could file civil proceedings challenging the sale deed in question if he had any objection and that there was no justification to cancel the entries after so many years. However, the SSRD vide the impugned order directed to retain the Entry Nos. 519 and 620 and directed to cancel the Entry No. 621. 8. As rightly submitted by Mr. Mehta, the revenue entries are made only for fiscal purpose and the Revenue Authorities have no jurisdiction to decide about the civil rights of the parties. However, the SSRD vide the impugned order directed to retain the Entry Nos. 519 and 620 and directed to cancel the Entry No. 621. 8. As rightly submitted by Mr. Mehta, the revenue entries are made only for fiscal purpose and the Revenue Authorities have no jurisdiction to decide about the civil rights of the parties. A beneficial reference of the judgment of this Court in the case of Gandabhai Dalpatbhai Patel (supra) be made in this regard, wherein it has been held as under:- "9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki - 1996 (2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999 (3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title. 10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003 (1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court." 9. In view of the afore-stated legal position, it is required to be held that the respondent SSRD has committed error in assuming the jurisdiction of Civil Court and in deciding the civil rights of the parties in the RTS proceedings. It is also pertinent to note that as per Section 135C of the Land Revenue Code, any person acquiring the right on any land by succession, survivorship, or otherwise, is required to report to the designated authority, however, if any person acquires the right by virtue of a registered document, he is exempted from the obligation of reporting to the designated officer. As per the settled legal position, the revenue authority is required to go by the documents i.e. the registered sale deed produced before it and give effect in the revenue entry. It can not decide the question of title in the revenue proceedings. In the instant case, the deceased Bhikhubhai Naranji Desai, the predecessor of the petitioners having purchased the land in question by way of registered sale deed, it was obligatory on the part of the concerned authority to mutate his name in the revenue record. If Chhotubhai had any objection against such sale made by Manchhaben, Widow of Dahyabhai, he should have approached the Civil Court, Challenging the validity of the sale deed, as rightly observed by the Collector in his order dated 16.11.1994. Admittedly no such civil proceedings have been initiated by the said Chhotubhai or after his death, by his heirs. Hence, the respondent SSRD could not have examined the validity of the said sale deed in the RTS proceedings and could not have directed to cancel the Entry No. 621. 10. Admittedly no such civil proceedings have been initiated by the said Chhotubhai or after his death, by his heirs. Hence, the respondent SSRD could not have examined the validity of the said sale deed in the RTS proceedings and could not have directed to cancel the Entry No. 621. 10. The impugned order passed by the SSRD being dehors his jurisdiction and illegal, the same is required to be quashed and set aside, so far as it pertains to the cancellation of the Entry No. 621, and is accordingly set aside. The order dated 16.11.1994 passed by the Collector is confirmed. 11. The petition stands allowed. Rule is made absolute accordingly. Petition Allowed.