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Gujarat High Court · body

2022 DIGILAW 1815 (GUJ)

Sankabhai Prabhubhai Patel v. State of Gujarat

2022-12-20

A.Y.KOGJE

body2022
JUDGMENT : 1. Rule. Learned Assistant Government Pleader waives service of of rule on behalf of respondent No.1. Learned advocate Mr. Nirav Sanghavi waives service of rule on behalf of respondent Nos.5 to 7. 2. This group of four petitions arising out of same facts and are raising identical issues, but are separately filed on account of separate orders passed by the revenue authorities in connection with separate revenue survey numbers. At the request of both the sides all the petitions are taken up for joint hearing and disposal. The facts are being recorded from the lead matter special civil application number 9793 of 2017. 3. This issue pertains to the directions to mention the names of the private respondents in the column of the second right in the village form No.7/12 in connection with the subject land of village Nava Taluka Himmatnagar. 4. This petition is filed challenging directions issued by the respondent revenue authorities by which the revenue authority has directed the entry of the names of private respondents in the column for second right in connection with the subject land of village: Nava, which came to be confirmed by the impugned order date 27.03.2017 by the Special Secretary, Revenue Department (Appeals). The challenge is restricted only to the particular direction as in fact the impugned order confirms the order of the collector in favour of the petitioners, but while confirming the order of the collector, the impugned directions were issued. 5. Learned advocate for the petitioners submitted that by issuing such a direction, the revenue authority namely the Special Secretary, Revenue Department (Appeals) has acted like a Civil Court in deciding the civil right of the private respondents. It is submitted that the revision was filed by the private respondents against the order of the Collector, where the challenge was to only the order of the Collector against which despite there being no prayer for entering the names of the private respondents in the revenue record, the Secretary (Appeals) has traveled beyond the prayers made in the revision application and issued the impugned directions. 6. 6. Learned advocate for the petitioners has taken this Court through the records of the case and submitted that the issue arose on account of the matrimonial discord between the petitioner No.1 and his wife respondent No.5 because of which, the respondent No.5 and respondent Nos.6 and 7 (son and daughter) started residing separately, but thereafter made their claim in the ancestral or self acquired property of the petitioner No.1. It is the case of the petitioners that as the petitioner No.1 is still alive, there is no question of making the entries on the ground of heirship and therefore, the revenue authorities have exceeded that jurisdiction by considering the rights of the private respondents under the principle of succession even when the succession has not even opened. 7. It is further submitted that even if the claim of the respondents is taken at a face value, then also such a claim would lie only against the properties of the petitioner No.1, but by the impugned direction, the rights of the other petitioners, who became the owners and occupiers of the subject land by way of heirship is also put under cloud. 8. Learned advocate submitted that the petitioners had challenged the decision of the Mamlatdar before the Collector and the Collector, by assigning detailed reasons, had held in favour of the petitioners. In the revision also, the Secretary (Appeals), on merits, confirmed the findings and conclusion given by the Collector. However, under the garb of protecting the interest of the private respondents, has issued the impugned direction, which is in fact, the realm of a Civil Court to decide upon the civil rights by way of succession, as claimed by the private respondents. 9. Learned advocate for the private respondents submitted that respondent Nos.5 to 7 being the wife and children of the petitioner No.1 respectively had made an application for entering their names in the revenue record of the subject land as they are the legal heirs and in class-I category. It is submitted that such application was required as the petitioner No.1 had right to dispose of the ancestral properties behind the backs of the petitioners, despite there being pre-existing right of the private respondents in the ancestral lands. 10. It is submitted that such application was required as the petitioner No.1 had right to dispose of the ancestral properties behind the backs of the petitioners, despite there being pre-existing right of the private respondents in the ancestral lands. 10. It is submitted that the present petition itself is misconceived as no right as such is created in favour of the private respondents and it is only with a view to protect the future interest of the private respondents, who are the sons and daughters of the petitioner No.1 that the direction has been issued. It is submitted that to protect the interest and to prevent multiplicity of litigation the direction issued by the Special Secretary (Appeals) is justified and hence need not be interfered with. 11. At this stage, both the parties have submitted that out of the several parcels of land in question, some of the lands have been transacted upon by way of registered sale deed in favour of third parties and the respondents have settled the matter insofar as those survey numbers are concerned and the settlement is accepted by both the sides. It is also brought to the notice of the Court that in connection with their rights of the private respondent, a Civil Suit No. 58 of 2011 has been filed in the Civil Court, which is still pending. 12. The Court has heard learned advocates for the parties and perused the documents placed on record. It is a case where the proceedings were initiated at the behest of respondent Nos.5 to 7, who moved an application for entering the name in the revenue record of the subject land by claiming to be legal heirs of petitioner No.1, wife and children, but they are residing separately on account of a matrimonial discord. 13. It appears that on the basis of such application, mutation entry No.3160 was posted against which the petitioners had filed their objections, however after hearing both the sides, by order dated 08.10.2009, the Mamlatdar dismissed the objections and certify the entry No. 3160 in favour of the private respondents. It appears that the decision of the Mamlatdar was a subject matter of challenge before the Deputy Collector and against the order of the Deputy Collector, the private respondents preferred Revision application before the Collector. It appears that the decision of the Mamlatdar was a subject matter of challenge before the Deputy Collector and against the order of the Deputy Collector, the private respondents preferred Revision application before the Collector. The Collector rejected the revision application and hence, the respondents preferred a revision application before the Special Secretary, Revenue Department (Appeals), who remanded the proceedings back to the Collector Sabarkantha for a fresh hearing. 14. Upon remand, the Collector confirmed the previous order and hence, once again a revision application was preferred before the Special Secretary, Revenue Department, which also came to be dismissed and confirmed findings and conclusion of the Collector. However, a direction was issued to reflect the name of the private respondents in the revenue record in column 2 of 7/12 extract. 15. This is a case where the disputed land Paiki the land bearing Survey/Block No.44 and 333 was independently occupied by the father of the petitioners, which for entering names of petitioner No.1 and 2, entry no.549 dated 20.08.1972 has been made in his existence which has been approved by the Competent Officer on 27.02.1974. Thereafter, the lands of Survey/Block number Paiki 139, 162 and 218 on the basis of family partition has been registered in the name of the petitioner Nos.1 and 2 Paiki that the lands bearing Survey/Block No.139 has been sold to Nandkumar Revabhai Patel in year 1982. Since then till day, direct possession of site has been enjoyed by Nandkumar Revabhai Patel. The land of Survey/Block No.162 and 218 have been sold to Jayantibhai Ranchhodbhai Patel since then to till day, Jayantibhai Ranchhodbhai has been enjoying the direct possession of site. The petitioenr Nos.1 and 2 have purchased the land of Survey/Block No. 377 from Patel Ramabhai Nanjibhai at Rs.15,000/- on 22/7/1987 through registered sale deed. An entry thereof has been approved vide Entry No.1274 on 14/10/1987. The same way, the petitioner Nos. 1 and 2 have purchased the land of Survey/Block No.378 from Patel Dhanabhai Khemabhai, etc. on 24/5/1982 through registered sale deed No.2778. In this regard an entry has been made in the village record vide Entry No.1277. The said Entry has been approved on 17/12/1987. The same way, the petitioner Nos. 1 and 2 have purchased the land of Survey/Block No.378 from Patel Dhanabhai Khemabhai, etc. on 24/5/1982 through registered sale deed No.2778. In this regard an entry has been made in the village record vide Entry No.1277. The said Entry has been approved on 17/12/1987. The respondent No.5 of this case is a wife of the petitioner No.1, but she has not divorced yet and she has been residing at her father Punjabhai Patel's house at Hansalpur from may years and as her father has no other child except her and as has been earning livelihood by holding the lands of Survey Nos. 153, 156, 172, 198, 224, 234, 255, 261 and 263, she has filed a Suit regarding maintenance in the Court of Chief Judicial Magistrate, Himatnagar. The said Suit for maintenance is rejected on 12/7/1979 and the private respondents have registered right in the property of petitioner No.1 in his existence. That, his consent is not obtained in registering the right and do not hold any kind of right or part in existence of petitioner No.1 or without his consent or he does not have any right also in that regard. Further, the disputed land being mortgaged with Land Development Bank, Cooperative Society, Punjab National Bank and State Bank of India, the property has been transferred without obtaining prior permission of the institute, the said transfer deserves to be rejected. And the disputed Survey/Block Numbers Paiki the land of Survey/Block No.139, 162 and 218 were sold to the afforested persons years ago. The Mamlatdar, Himatnagar has passed impugned order without hearing the persons, without serving them notices. However, the Mamlatdar has passed order approving the entry of name the respondents in existence of the petitioner No.1. 16. The Court has taken into consideration the revision application filed by the private respondents against the order of the Collector, wherein, the prayer clause clearly indicate setting aside of the order of the Collector and Deputy Collector and to confirm the entry No.3160 in the revenue record of the subject land and therefore there does not appear to be any prayer for reflecting the names of the private respondents in the revenue record of the subject land. 17. 17. The Court finds that the Collector as well as the Secretary (Appeals) have given a proper justification with regard to the claim of the private respondents to mutate their names in the revenue record of the ancestral properties of the petitioners and held that it is a matter of asserting of civil right for which only Civil Court has the jurisdiction to decide upon such rights and therefore, would be beyond the scope of a revenue authority. Once having held so, in the opinion of the Court, the Secretary has traveled beyond the scope by giving recognition to the civil right claimed by private respondents in view of there fiduciary relations with the petitioner No.1. In absence of any partition of property recognized by law or in absence of opening of succession as the petitioner No.1 is still alive, it is a matter of adjudication by a Civil Court to insert a civil right into the properties of the petitioner No.1 be it ancestral or self acquired. 18. The aforesaid principle was very well observed by the revenue authorities in concluding that the entry in question No.3160 could not be made in the revenue record, but on the other hand and in contradiction to what was held by the revenue authorities observation is made to reflect the names of the private respondents in the column for second right which procedure is not recognized by any rules. In that view of the matter, the observation was unfounded and not supported by any provisions of law and therefore, such an observation made by the Secretary (Appeals) is required to be set aside. 19. It is also pertinent to observe that the respondents are already before the Civil Court in Regular Civil Suit No.58 of 2011, pending before the Additional Civil Judge and which is for the very purpose and therefore the revenue authorities have rightly held that the ultimate outcome in the civil proceedings would be binding to both the parties and would govern the entries in the revenue record. This being so, in the opinion of the Court, the Secretary (Appeals) has committed in an error in taking cognizance of such undecided rights and directed the entry to be made of names of respondent Nos.5 to 7 in the revenue record in column for second right. This being so, in the opinion of the Court, the Secretary (Appeals) has committed in an error in taking cognizance of such undecided rights and directed the entry to be made of names of respondent Nos.5 to 7 in the revenue record in column for second right. The Court therefore, while upholding the successive orders of the revenue authorities, deems it fit to interfere with the order of the Additional Secretary, Revenue Department (Appeals) date 27.03.2017 to the limited extent directing entry of the names of private respondents in village form 7/12 in column of second right. 20. At this stage, it would be appropriate to take note of an additional affidavit filed by petitioner number 2, to indicate that in connection with one parcel of land being block survey No. 759/old survey No.44 of village Nava, a settlement has been arrived at between the respond Nos.6 and 7 that they have no objection if the names of these respondents are not entered into the second column of village form 7/12. For the aforesaid purpose, separate Civil Application No.1 of 2022 is filed in Special Civil Application No.9793 of 2017 as well as Civil Application No.1 of 22 in Special Civil Application No.9799 of 2017 is moved, wherein such settlement is also placed on record. 21. with the aforesaid, the petitions stands partly allowed. Rule is made absolute to the aforesaid extent. In view of the orders passed in the main petitions, no separate orders are required to be passed in the Civil Applications and accordingly disposed of.