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2022 DIGILAW 1769 (GUJ)

KANTIJI BHALAJI THAKORE v. SOMAJI MAGANJI THAKORE

2022-12-15

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2022
ORDER : 1. In this intra-court appeal, order dated 08.03.2022 passed by the learned Single Judge in Special Civil Application 18273 of 2017 is under challenge. We have heard Shri Shalin Mehta, learned Senior Advocate appearing for the appellants and Shri S.H. Sanjanwala, learned Senior Advocate appearing for the respondent. Perused the records. 2. The facts necessary for disposal of this appeal bereft of minute particulars are as under: 2.1. The land bearing Revenue Survey No. 809 paiki admeasuring 4356 sq. mtrs. situated at Village Vejalpur, Taluka-Ahmedabad City, District-Ahmedabad is the subject matter of this dispute. The pleading of the petitioner reflects, an entry bearing no. 314 came to be made in the revenue records on 08.02.1956 by the revenue authorities, entering the name of Shri Bhalaji Sadaji as occupier of Revenue Survey Nos. 805, 809, 831 on the premise of he being the occupier of land by paying land revenue since long. The said entry was certified on 08.06.1956 by Entry No. 314 by the revenue authority. This revenue entry continued in the revenue records till 1997. The said revenue entry came to be further mutated by Entry No. 7590 on 23.10.1997 by entering the name of Shri Somaji Maganji on the premise that there was a family partition of Shri Bhalalji Sadaji and Shri Somaji Maganji had received an extent of 4356 sq. mtrs. of land in Survey No. 809 in the family partition. The said entry was certified by the revenue authority on 25.11.1997. Subsequently, on 10.12.1997 Entry No. 7609 came to be mutated in the revenue records by entering the names of Sriyuths Kantiji Bhalaji Thakor, Kalaji Bhalji Thakor and Hansaben W/o Jashaji Bhalaji Thakor. Said entry came to be certified by the revenue authorities on 15.01.1998. Undisputedly, Shri Bhalaji Sadaji Thakor expired on 26.02.1998. Hence, the name of Bhalaji Sadaji Thakor was removed by mutation Entry No. 7693 on 06.04.1998 and accordingly, the revenue records came to be mutated. Undisputedly, after the revenue entry was mutated during October, 1997, which was certified in November, 1997, there was no challenge to the said entry. This Entry of 7950 dated 23.10.1997 came to be challenged by the appellants herein before the Deputy Collector who rejected the same on the ground of inordinate delay, vide order dated 24.07.2014 passed in Appeal Case No. 250 of 2013. This Entry of 7950 dated 23.10.1997 came to be challenged by the appellants herein before the Deputy Collector who rejected the same on the ground of inordinate delay, vide order dated 24.07.2014 passed in Appeal Case No. 250 of 2013. Said order came to be confirmed by the Collector in Revision Application No. 458 of 2014 by order dated 05.09.2015. Being aggrieved by the said order, revision was preferred before the Secretary (Appeal) Revenue Department, (SSRD) in Revision Application No. 203 of 2015, which came to be allowed by order dated 16.08.2017 and being aggrieved by the same, writ applicants filed Special Civil Application 18273 of 2017 and learned Single Judge by impugned order allowed the Special Civil Application and set aside the order of SSRD and restored the order of the Deputy Collector as affirmed by the Collector. Hence, this appeal. 2.2. It also requires to be noticed that appellants herein have filed Regular Civil Suit no. 609 of 2014 on the file of civil court, Ahmedabad (Rural) for declaration that purported agreement of sale under which respondents are claiming right over subject property is illegal, void-ab-inito and not binding on them and also for consequential relief of perpetual injunction. In the said suit, an application for grant of temporary injunction was sought for by filing an application as per Exhibit-5, which came to be rejected by the learned trial Judge by order dated 09.02.2016. 2.3. The grievance of the writ applicants before the learned Single Judge was to the effect that mutation Entry No. 7590 dated 23.10.1997 came to be entered after recording the statements and drawing the panchnama and as such, the SSRD had committed a serious error in entertaining challenge to the said mutation entry after a delay of 16 years. 2.3. The grievance of the writ applicants before the learned Single Judge was to the effect that mutation Entry No. 7590 dated 23.10.1997 came to be entered after recording the statements and drawing the panchnama and as such, the SSRD had committed a serious error in entertaining challenge to the said mutation entry after a delay of 16 years. It was also contended that respondents had a knowledge about the mutation Entry 7590 dated 23.10.1997 and had not taken steps till the year 2013 and it was also contended that names of respondents 2, 3 and 4 (writ application) came to be entered in mutation Entry No. 7609 on 10.12.1997 as co-owners along with Shri Bhalaji Sadaji in respect of land bearing Survey No. 809 and all these facts were within clear knowledge of the appellant herein and as such, appeal ought not to have been entertained and as such, appeal had been rightly dismissed by the Deputy Collector and confirmed by the Collector, which ought not to have been interfered by the SSRD. The said argument found favour before the learned Single Judge and accordingly, writ application came to be allowed. 2.4. It is the contention of Mr. Shalin Mehta, learned Senior Advocate appearing for the appellants that learned Single Judge erred in not noticing the fact that though mutation Entry 7590 came to be made on the strength of an alleged family partition, said document had not seen the light of the day. He would further contend that in Regular Civil Suit No. 609 of 2014, which has been filed by the appellants before the competent civil court, writ applicants have appeared and have filed the written statement contending that said mutation entry was on the strength of an agreement namely, earnest money deed dated 14.03.1980, relating to the subject land and this inconsistent plea alone was sufficient for setting aside the mutation Entry No. 7590 dated 23.10.1997. He would also elaborate his submissions by contending, that undisputedly from the year 1956 to 1997, the revenue records reflected the name of Shri Bhalaji Sadaji namely, the predecessor-in-title of the appellants and there is no justification for said entry being reversed that too, without appellants being issued with the notice and as such, on this ground also, order of the learned Single Judge requires to be interfered with. He would also contend that even assuming and accepting for a moment that revenue Entry No. 7590 dated 23.10.1997 was based on a family partition, which document has not come before either this Court or before any other forum, yet a family arrangement which is contrary to the Indian Registration Act, 1908 would not be an admissible document and as such, neither the revenue authorities nor the learned Single Judge could have taken judicial note of said fact and as such, impugned order would not be sustainable. Hence, he prays for appeal being allowed. In support of his submission, he has relied upon the following decisions: (i) Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana, AIR 2012 SC 206 (ii) Ravinder Kaur Grewal vs. Manjit Kaur, AIR 2020 SC 3799 (iii) Kale and Others vs. Deputy Director of Consolidation and Others, AIR 1976 SC 807 3. Per contra, Mr. S.H. Sanjanwala, learned Senior Advocate appearing for the respondent namely writ applicant would support the impugned order and would contend that there being inordinate delay in challenging the mutation entry which had resulted in SSRD interfering with well reasoned order of the Collector who had dismissed the revision application and as such, it has been rightly interfered in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and there is no illegality committed by the learned Single Judge and as such, he has prayed for dismissal of the appeal. 4. Having heard the learned counsel appearing for the respective parties and on perusal of case papers, we are of the considered view on the short issue that revenue entries would not confer title on the parties and the issue is to be resolved before a competent civil court, this appeal requires to be dismissed. Apart from noting the fact that mutation Entry No. 7590 dated 23.10.1997 was challenged by the appellants herein in the year 2013, namely after a period of 16 years, the Deputy Collector as well as Collector have refused to interfere with the order mutating the revenue records. Though Mr. Apart from noting the fact that mutation Entry No. 7590 dated 23.10.1997 was challenged by the appellants herein in the year 2013, namely after a period of 16 years, the Deputy Collector as well as Collector have refused to interfere with the order mutating the revenue records. Though Mr. Shalin Mehta, learned Senior Advocate appearing for the appellant has made a valiant attempt to contend that way back in the year 1956, the subject land stood in the name of Shri Bhalaji Sadaji as per Entry No. 314 dated 08.02.1956 and it could not have been changed on the strength of a purported family partition, which document has not seen the light of the day, we are of the view that examination of said plea in the present proceedings, that too in exercise of the powers vested under Article 226 of the Constitution of India, would not be justifiable. We say so, for the reason that revenue entry which has been made namely, disputed revenue entry which has been made namely, Entry No. 7590 dated 23.10.1997 is based on a family partition and also on the basis of statements of witnesses recorded by the revenue authorities, which includes the statement of Shri Bhalaji Sadaji. As to whether there was any family partition? As to whether, Shri Bhalaji Sadaji had given statement before the revenue authorities? And, the basis on which, such statements came to be accepted by the revenue authorities, are all disputed question of facts which cannot be gone into under Article 226 of the Constitution of India. Same requires to be examined, evaluated and answered by the competent civil court on evaluation of evidence that may be tendered by both the parties namely, oral and documentary. It is for this precise reason, we refrain from expressing any opinion in that regard. This Court cannot also lose sight of the fact that in respect of the same subject property, appellants herein have filed Regular Civil Suit No. 609 of 2014 for declaration namely, to declare that earnest money deed dated 14.03.1980 on which the writ applicants have asserted their title to the property before the civil court as null and void and Mr. Sanjanwala, learned Senior Advocate draws our attention to the fact that suit having been dismissed for default on 17.12.2019. At this juncture, Mr. Sanjanwala, learned Senior Advocate draws our attention to the fact that suit having been dismissed for default on 17.12.2019. At this juncture, Mr. Shalin Mehta, learned Senior Advocate would respond to said contention by contending that an application for restoration of the said suit has been filed on 22.06.2022. Be that as it may. Rival contentions raised in that regard cannot be the subject matter of this appeal. It would suffice to state that in the event of said suit being restored by the competent civil court, necessarily said court would adjudicate all issues relating to the subject mutation entries including Entry No. 7590 dated 23.10.1997 and consequential entries made vis-a-vis with reference to mutation Entry No. 314 dated 08.02.1956. We make it clear any observations made by the revenue authorities as well as the learned Single Judge would not be binding on the civil court and it is only for the limited purpose of the mutation entry, such observation is to be looked into. In fact, the learned Single Judge at paragraph 38 has also noticed as under: “38. In the case of Jitendra Singh vs. State of Madhya Pradesh (supra), it has been held that if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the Will, the party claiming title/right on the basis of the Will has to approach the appropriate civil court/court and get his rights crystallized and only thereafter, on the basis of the decision before the civil court, necessary entry can be made.” 5. In the light of aforestated facts and the observations made by the learned Single Judge, we are of the considered view that it would be open for both parties to urge all contentions with regard to the title to the property including the mutation entry which has been carried out which is the subject matter of this appeal as well as the writ application before the competent civil court including the Regular Civil Suit 609 of 2014 (in the event of said suit being restored to file). It is made clear that disputed entry is subject to out come of the suit. 6. Subject to aforesaid observation, appeal stands dismissed. No order as to costs. 7. All pending applications stand consigned to records.