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2019 DIGILAW 1016 (GUJ)

Ushaben v. Special Secretary (Appeals)

2019-10-21

V.M.PANCHOLI

body2019
ORDER : V.M. PANCHOLI, J. 1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed for the following reliefs: "31(A) YOUR LORDSHIP's may be pleased to admit and allow the present petition; (B) YOUR LORDSHIP's may kindly be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus, order or direction quashing and setting aside the impugned order dated 05.07.2019 passed by learned SSRD in HKP/RJT/76/2019, as well as order dated 1.03.2019 passed by the learned District Collector, Rajkot in Land-Revision-108(6)-Case No. 105 of 2016-17 as well as the order passed by the learned the Deputy Collector, Dhoraji dated 30.03.2016 in RTS/Appeal 48 of 2014/15 AND Further please to reject Entry No. 769 and all further Entry; (C) During the pendency and final disposal of the present petition, YOUR LORDSHIP's may be pleased to stay operation, implementation and execution of the impugned order dated 05.07.2019 passed by learned SSRD in HKP/RJT/76/2019 as well as order dated 1.03.2019 passed by the learned District Collector, Rajkot in Land-Revision-108(6)-Case No. 105 of 2016-17 as well as the order passed by the learned the Deputy Collector, Dhoraji dated 30.03.2016 in RTS/Appeal 48 of 2014/15 and further be pleased to direct the respondent authority to maintain the status-quo of the land in question; (D) YOUR LORDSHIPS may kindly be pleased to direct the concern authority to enter names of all legal heirs of deceased Kantilal Jasraj Avlani in records of rights of Survey No. 374 of Village Chhatrasa; (E) Pass any such other and/or further orders that may be through just and proper, in the facts and circumstances of the present case." 2. Heard learned advocate Mr. Purohit for the petitioner and learned Assistant Government Pleader Mr. Antani for the respondents-authorities. 3. The dispute in the present petition is with regard to the land bearing R.S. No. 374 admeasuring H. 6-77-84 Are situated at village Chhatrasa, Taluka Dhoraji, District Rajkot. It is the case of the petitioner that the said land was owned and possessed by Kantilal Jasraj Avlani i.e. father of the petitioner since 1967. Learned advocate for the petitioner has referred the family tree of deceased Kantilal Jasraj Avlani which is produced at page 10 of the memo of the petition. It is the case of the petitioner that the said land was owned and possessed by Kantilal Jasraj Avlani i.e. father of the petitioner since 1967. Learned advocate for the petitioner has referred the family tree of deceased Kantilal Jasraj Avlani which is produced at page 10 of the memo of the petition. After referring to the same, it is submitted that in the year 1971, the land in question was mutated in the revenue record in the name of deceased Manish Kantilal Avlani being son of Jasraj Kantilal Avlani. It is submitted that the said mutation appears to have been carried out as the consequence of certain family settlement. Thus, entry no. 769 was mutated on 15.8.1971. Thereafter, the said land was mutated in the revenue record in the name of deceased Kalapi Kantilal Avlani. The said entry was also carried out on the basis of so called family settlement. Thus, entry no. 823 was mutated on 15.6.1974 on the basis of the so called family settlement. After the death of Kalapi Kantilal Avlani on 22.10.2000, the names of his legal heirs i.e. respondent nos. 4, 5 and 6 came to be mutated in the revenue record and therefore mutation entry no. 3159 was mutated on 16.11.2005. 4. Learned advocate for the petitioner submits that the petitioners were not aware about the mutation of the aforesaid entries and the said entries were mutated in the revenue record on the basis of the oral family settlement and no document with regard to the so called settlement was placed before the revenue authority. When the petitioner came to know about the disputed mutation entries, she preferred RTS appeal before the Deputy Collector in the year 2015. The Deputy Collector rejected the appeal vide order dated 30.3.2016 on the ground that there is a delay in filing the appeal. The said order was challenged by the petitioner by filing revision application before the Collector. The Collector also rejected the said revision application vide order dated 1.3.2019 against which the petitioner preferred revision application the SSRD. SSRD, vide order dated 5.7.2019, rejected the revision filed by the petitioner and therefore this petition is filed. 4.1. The said order was challenged by the petitioner by filing revision application before the Collector. The Collector also rejected the said revision application vide order dated 1.3.2019 against which the petitioner preferred revision application the SSRD. SSRD, vide order dated 5.7.2019, rejected the revision filed by the petitioner and therefore this petition is filed. 4.1. Learned advocate for the petitioner would contend that as the petitioner was not aware about the disputed entries mutated in the revenue records and on the date of knowledge, she has preferred the appeal before the Deputy Collector and therefore there is no delay in filing the appeal before the Deputy Collector. He would also submit that there is no document available with the revenue authority in support of the so called family settlement arrived at between the private respondents on the basis of which the disputed entries were mutated in the revenue record. At this stage, he has submitted that the petitioner has also filed Regular Civil Suit no. 31 of 2017 before the concerned civil Court, copy of the plaint is produced on record at page 73 of the compilation. It is, therefore, urged that the impugned orders passed by the respondents authorities be set aside. 5. On the other hand, learned Assistant Government Pleader appearing for the respondent authorities supported the reasoning recorded by the authorities and contended that the petitioner has challenged the entry which was mutated in the revenue record in the year 1971 after a period of 45 years and when the petitioner has failed to give satisfactory explanation for not filing the appeal within the limitation period, the respondents authorities were justified in not entertaining the claim of the petitioner. It is, therefore, urged that this petition be dismissed. 6. I have considered the submissions canvassed by learned advocates appearing for the parties. I have also gone through the material placed on record. It has emerged from the record that the disputed entry no. 769 came to be mutated on 15.8.1971 and thereafter other disputed entries were mutated from time to time on the basis of the family settlement and thereafter heirship entry was mutated on 16.11.2005. The petitioner has challenged the entry which was mutated in the year 1971 after a period of 45 years and the petitioner has failed to give reasonable explanation for not filing the appeal within the reasonable time. 7. The petitioner has challenged the entry which was mutated in the year 1971 after a period of 45 years and the petitioner has failed to give reasonable explanation for not filing the appeal within the reasonable time. 7. In absence of any explanation given by the petitioner, the respondent authority has not committed any error while not entertaining the claim of the petitioner. It is also required to be noted that the petitioner has alleged that fraud is committed by the private respondent in connivance with the revenue authority and therefore without any documentary evidence produced before the revenue authority, names of the private respondents were mutated in the revenue record on the ground of oral family settlement. However, when inquired, learned advocate for the petitioner fairly submitted that till today, the petitioner has not filed any criminal complaint against the private respondents or against the revenue authorities. 8. Even otherwise, it is now well settled that the revenue entries are only for fiscal purpose and rights of the parties cannot be determined in the revenue proceedings. The petitioner has admittedly filed Regular Civil Suit No. 31 of 2017 before the concerned civil Court and the said suit is still pending. 9. In view of the aforesaid facts and circumstances of the present case, the petition is dismissed. However, the disputed entries are subject to final outcome of Regular Civil Suit No. 31 of 2017 which is filed by the petitioner before Civil Court at Dhoraji.