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2020 DIGILAW 225 (GUJ)

LH Of Ramji Becharji Parmar v. State Of Gujarat

2020-02-03

A.S.SUPEHIA

body2020
ORDER : 1. The present writ petition has been filed seeking following prayers: “A) This Hon'ble Court may be pleased to admit this petition; (B) This Hon'ble Court may be pleased to issue appropriate writ, order or direction and be pleased to quash and set aside the order dated 16/7/2018 passed in Appeal/Revision No.SBR/60/2017 passed by the learned Special Secretary, Revenue Department and be pleased to quash and set aside the dated 22/9/2017 passed by the Collector, Sabarkantha in RTS Revision No.70/2015 and further be pleased to quash and set aside the order dated 25/10/2013 passed by the Deputy Collector, Himmatnagar in RTS Appeal No.284/2012; (C) This Hon'ble Court may be pleased to issue appropriate writ, order or direction and be pleased to hold that the Entry No.340 on the basis of the registered sale deed dated 1/3/1977 as well as Entry No.1676 on the basis of sale deed dated 26/9/1996 came to be posted without issuance of notice under Sec.135-D of the Bombay Land Revenue Code and the same came to be posted on the basis of the transaction of sale which came to be undertaken without prior consent of the co-owners/predecessor in title of the petitioners and petitioners and without the signatures of the predecessor in title and therefore, be pleased to hold that the entry nos.340 and 1676 would be void ab-initio, nullity; (D) This Hon'ble Court may be pleased to grant interim relief and by way of interim order be pleased to direct the respondent nos.6.1 to 10 not to transfer, alienate, sale the property being Survey No.9/1 situated in village Balwantpura, Ta. & Dist: Himmatnagar, pending admission and final disposal of this petition.” 2. The brief facts of the case leading to filing of the present writ petition are as under: 2.1. The subject matter land situated in village Balwantpura, Taluka Himmatnagar, District Sabarkantha being Survey No.9 admeasuring total 5 acres and 24 gunthas was agricultural land and the same was running in the name of predecessor in title of the petitioners namely in the name of Bisaji Dhulaji Parmar. Thereafter, one Entry No.160 in respect of the village record dated 3/9/1983 came to be registered on the basis of possession of the respective persons in respect of the aforesaid land. Thereafter, one Entry No.160 in respect of the village record dated 3/9/1983 came to be registered on the basis of possession of the respective persons in respect of the aforesaid land. Accordingly, in respect of total 2 acres and 30 gunthas of land of Survey No.9/1 the same came to be entered in the name of predecessor in title of the petitioners (grandfather/great grandfather) Ramji Becharji Parmar, Somaji Savaji Parmar and Gobarji Nathaji Parmar as well as in the name of Jawanji Takhaji Parmar, the predecessor in title of the present respondent nos.6.1 to 6.2. 3. Learned advocate Mr.N.K.Majmudar appearing for the petitioners has submitted that the half portion of the land of the aforesaid Survey No.9/1 (total land was of 2 acres and 30 gunthas) was being cultivated by the predecessor in title of the petitioners namely Ramji Becharji and Gobarji Nathaji jointly and the remaining half portion of the land situated on the Northern side was being cultivated by the predecessor in title of the respondent nos.6.1 to 6.2 i.e. Jawanji Takhaji and the deceased Somaji Savaji. He has submitted that the respondent nos.6.1 to 10 have committed serious illegality and irregularity and on the basis of the forged signatures, the land admeasuring 2 acres and 2 sq.mtrs. came to be sold by execution of registered sale deed dated 01.03.1977 in favour of the Pratapji Joitubhai Rathod. He has also submitted that the sale deed dated 01.03.1977 was executed by one Thakarda Kaluji Jawanj, Jawanji Takhaji, Thakarda Dhulaji Somaji, Thakarda Kacharaji Ramaji, however, the names and signatures of other co-owners namely Somaji Savaji, Gobarji Nathaji, Divaben Ramji, Thakarda Bhavanji, Thakarda Manguben and Thakarda Kachraji, though their names appeared in 7/12 village form, the sale deed came to be executed by only few of the coowners, that too without seeking prior consent of other owners and without signatures of other co-owners and only four persons had executed the sale deed dated 01.03.1977 and by committing serious illegality and forgery, an Entry No.340 came to be certified, and even there was endorsement made in margin of Village Form No.6 to the effect that the names of the purchasers do not tally with the names appeared in 7/12 village form and it has been provided that therefore, all the remaining persons should be served with notice. He has submitted that despite the said endorsement, without issuance of notice to the concerned co-owners including the petitioners, straightway the Entry No.340 came to be registered. 4. Learned advocate Mr.N.K.Majmudar for the petitioners has submitted that the said entry was absolutely illegal and nullity as without issuance of notice, and without the consent of the other co-owners, the said transaction came to be affected and hence requires to be set aside. He has submitted that even further transaction in the nature of sale deed dated 26.09.1996 in respect of the land admeasuring Hector-Are- Sq.mtr.0-84-99 had taken place and Entry No.1676 dated 13.12.1996 came to be registered, which was also void ab initio. He has also submitted that thereafter the petitioners approached the Deputy Collector and challenged the entries by way of preferring R.T.S. Appeal No.284/2012 and the Deputy Collector rejected the same by the order dated 25.10.2013. He has submitted that against the said order, the petitioners approached the Collector, Sabarkantha by preferring R.T.S. Revision No.70/2015, which was also rejected by the order dated 22.09.2017. 5. Learned advocate Mr.N.K.Majmudar for the petitioners has submitted that the respondent authorities have committed substantial error of law in not considering the important aspect that the predecessor in title of the petitioners as well as predecessor in title of the respondents, both were joint owners/co-owners/lawful owners and lawful occupiers of the land in question and without consent of the predecessor in title of the petitioners, without there being any signatures obtained in advance, straightway the predecessor in title of the respondent nos.6.1 to 6.2 had executed the transaction of sale way back in 1977 as well as in 1994 and therefore, the sale transaction itself would be void ab initio/nullity. He has also submitted that the aforesaid aspects have not been considered properly by the concerned respondent authorities and, therefore, the orders passed by the respondent authorities deserve to be quashed and set aside. 6. No further submissions are made. 7. Learned advocate Mr.Vimal Purohit appearing for the respondent nos. 8 to 10 has submitted that the present writ petition is required to be rejected since the petitioners have not come up with clean hands. He has submitted that since 1996, the answering respondents are cultivating land in question and till 2011, no such objection was raised by any parties or the authorities concerned; such transaction, which was entered on 26.09.1996. He has submitted that since 1996, the answering respondents are cultivating land in question and till 2011, no such objection was raised by any parties or the authorities concerned; such transaction, which was entered on 26.09.1996. He has submitted that the legal heirs of one of the vendors has disputed the registered sale deed, which was executed in the year 1977 for the first time after 35 years i.e. in the year 2011. 8. Learned advocate Mr.Vimal Purohit for the respondent nos.8 to 10 has submitted that the petitioner being a legal heirs of the vendors have come out with a case that in the year 2011 without the knowledge of the co-owners and without issuing 135-D notice, sale deed was executed by his predecessor in title in the year 1977 and hence, they are now contravening the sale transaction which was effected in the year 1977, which was also validated before the competent authority. He has submitted that subsequently the second sale transaction was executed in the year 1996 and despite that the petitioner did not raise any objection to such transaction after 1996 also. 9. Finally, learned advocate Mr.Purohit for the respondent nos.8 to 10 has submitted that in the year 2011, the petitioner had filed Regular Civil Suit No.110 of 2011 challenging only the sale deed in favour of the respondent no.8 and not the registered sale deed in favour of answering respondent and thereafter, the plea raised by the petitioners that the civil suit is pending is not sustainable in eye of law. He has submitted that there is no prayer in the suit for the cancellation of the sale deed in favour of the answering respondents and the interim relief prayed by the petitioner in the civil suit vide Exh.5 is also rejected by the Civil Court, Himmatnagar vide order dated 19.02.2015. Thus, he has submitted that the answering respondent nos.9 and 10 are having peaceful possession and cultivating the land in question since long and hence, the present petition deserves to be rejected at the threshold. 10. Learned AGP Mr.Dhawan Jayswal has supported the submissions advanced by the learned advocate Mr.Purohit and submitted that there is a delay of 35 years from the first transaction and from the second transaction, which was entered in 1996, there is a delay of 15 years. 10. Learned AGP Mr.Dhawan Jayswal has supported the submissions advanced by the learned advocate Mr.Purohit and submitted that there is a delay of 35 years from the first transaction and from the second transaction, which was entered in 1996, there is a delay of 15 years. He has submitted that the Regular Civil Suit No.110 of 2011 is already pending and the Civil Court has rejected the Exh.5 application vide order dated 19.02.2015. Thus, he has submitted that the present petition deserves to be rejected. 11. I have heard the learned advocates appearing for the respective parties. 12. It is not in dispute that the present petitioners are challenging the mutation entry no.340 dated 18.12.1977, which was registered way back in the year 1977 after a period of 35 years. The petitioner no.1 has executed the registered sale deed in favour of the respondent no.8- Pratapji Joitusinh Rathod, which came to be registered on 01.03.1977 and the entry to that effect came to be registered being entry no.340 and the same was certified on 18.12.1977. The entry pertains to land bearing survey no.9/1 admeasuring Hector-Are-Sq.mtr.0-84-99 situated in village Balwantpura, Taluka Himmatnagar, District Sabarkantha. Thereafter, subsequently, respondent no.8 had executed registered sale deed in favour of the respondent nos.9 and 10, which came to be renumbered as Entry No.1676 dated 26.09.1996 and the same was certified on 13.12.1996. Till the year 2011, neither the petitioner nor any other party raised any objection against any authority against the aforesaid transaction and for the first time after 35 years from the date of initial entry certified in 1997 and subsequently, after 15 years from the subsequent entry certified in 1996, the objection raised by the petitioner. 13. It is also not in dispute that the petitioner has filed the Regular Civil Suit No.110 of 2011 wherein the petitioner has challenged only the registered sale deed in favour of the respondent no.8 and the subsequent registered sale deed is not challenged. In the aforesaid suit, the Civil Court, Himmatnagar, vide order dated 19.02.2015 has already rejected the Exh.5 application of the present petitioner. The respondent nos.9 and 10 are cultivating the aforesaid land since long and they are in peaceful possession. 14. In this view of the matter, the writ petition is absolutely meritless and the same is rejected. Notice is discharged.