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2023 DIGILAW 131 (GUJ)

TAKHUBHA DAJIRAJ JADEJA v. STATE OF GUJARAT

2023-01-13

ARAVIND KUMAR, ASHUTOSH SHASTRI

body2023
ORDER : 1. Order dated 26.10.2018 passed in Special Civil Application No. 18492 of 2014 is challenged in this intra court appeal. 2. We have heard arguments of Mr. P.P. Majmudar, learned counsel appearing for the appellants, Ms. Shah, learned Government advocate appearing for respondent Nos. 1 and 2 and Mr. Jigar Raval, learned counsel appearing for respondent No. 3. Perused the record. 3. Being conscious of the fact that in intra court appeals, interference being limited, we have examined the facts on hand. Appellants under three sale deeds executed on 24.5.2007 by Mayank Patel through his power of attorney holder Navinbhai purchased half share including right, title and interest of undivided half share in Survey Nos. 463/1, 464/2, 461/1, 471/2 and 468 of village Sherkhi, Taluka District Vadodara (hereinafter referred as the “subject property”). On purchase of said property, they sought for revenue entries being mutated in their names. Accordingly, revenue entries came to be mutated on 31.5.2007 being entry Nos. 8729 and 8730. However, on account of objections having been lodged, it was treated as disputed case by the jurisdictional Mamlatdar. On 4.4.2008, he cancelled entries. This was challenged by the appellants before the Deputy Collector in an appeal which came to be allowed on 31.1.2010 and remanded the matter back to the Mamlatdar. On such remand being made, the Mamlatdar upheld the entries on 9.6.2010. This order was upheld by the Deputy Collector on 31.1.2013. Being aggrieved by the same, revision application was filed by the third respondent before the Collector which was allowed on 16.5.2014. Challenging the correctness of the said order, revision application was filed before the SSRD by the appellants herein which came to be dismissed on 21.10.2014. Being aggrieved by the said order, they approached the learned Single Judge in Special Civil Application No. 18492 of 2014 which has been dismissed by order dated 26.10.2018 and the order of the SSRD came to be upheld. Hence, this appeal. 4. It is the contention of Mr. Majmudar, learned counsel appearing for the appellants that revenue entries having been certified by the Mamlatdar and upheld by the Deputy Collector, there was no reason for the said orders being interfered with by the Collector, more particularly, when the appellants had claimed the right of mutation on the strength of registered sale deeds dated 24.5.2007. Majmudar, learned counsel appearing for the appellants that revenue entries having been certified by the Mamlatdar and upheld by the Deputy Collector, there was no reason for the said orders being interfered with by the Collector, more particularly, when the appellants had claimed the right of mutation on the strength of registered sale deeds dated 24.5.2007. He would also submit that revenue authorities are bound by the registered sale deeds and they cannot shy away from mutating the revenue record when there are registered sale deeds. Hence, he would contend that orders passed by the Collector, SSRD and learned Single Judge are contrary to the established law which requires to be set aside by this Court. He would also hasten to add that insofar as right of possession which was claimed by the third respondent by filing an application under Order 39, Rule 1 and 2 CPC in the suits filed i.e. Special Civil Suit Nos. 302 and 303 of 2007 came to be allowed by learned trial Judge which landed before this Court in Appeal from Order No. 377 of 2011 wherein it was agreed that interim relief granted by learned Single Judge in the said appeal on 19.10.2011 i.e. suspending operation and implementation of the order passed by the learned trial Court to be continued. Hence, it would not lie in the mouth of the third respondent to contend anything contrary to same. Hence, he prays that appeal being allowed. 5. Per contra, Ms. Shah, learned Assistant Government Pleader would support the impugned order and contend that learned Single Judge having opined that entries made in the revenue record would be subject to the result of the civil suit ought to have set aside the order of SSRD and restored the order of Mamlatdar. 6. Mr. Jigar Raval, learned counsel appearing for the third respondent would not only support the impugned orders but would also contend that there is already suits filed by the third respondent i.e. Special Civil Suit Nos. 302 and 303 of 2007 for cancellation of the sale deeds and as such, question of interfering with the well reasoned order passed by the Collector, affirmed by the SSRD and confirmed by learned Single Judge would not warrant interference at the hands of this Court. Hence, he prays for rejecting the appeal. 7. 302 and 303 of 2007 for cancellation of the sale deeds and as such, question of interfering with the well reasoned order passed by the Collector, affirmed by the SSRD and confirmed by learned Single Judge would not warrant interference at the hands of this Court. Hence, he prays for rejecting the appeal. 7. Having heard learned counsel appearing for the parties and on perusal of the record, we notice that appellants had sought for mutation of entries in respect of the subject land on the strength of the registered sale deeds dated 24.5.2007. When there is a registered instrument executed by the vendor either by himself or through power of attorney holder in favour of the purchaser, contents of the registered sale deed are presumed to be true and correct unless rebutted vide section 91 of the Evidence Act. It is also trite law that when there is registered instrument i.e. sale deed on the strength of which revenue entries are sought for being mutated, the revenue authority cannot shirk from their responsibility of mutating entries nor they can enter into domain of examining any contention raised in that regard by a party objecting to such entry. This view gets support from the judgment of this Court in the case of Nathubhai Meraman Darji vs. Special Secretary, 1996 (3) GCD 691 and Agricultural Produce Market Committee, Khambhat vs. Deputy Mamlatdar, Khambhat and Others, 2007 (1) GLR 328 . In teeth of the said authoritative principles and having regard to section 135-D of the Gujarat Land Revenue Code 1879, the Mamlatdar had mutated the revenue record initially on 31.5.2007 in the names of the appellants and subsequently, on order of remand being passed on 9.6.2010 this order in fact came to be upheld by the Deputy Collector on 31.1.2013. There was no error committed by these two officers i.e. office of the Mamlatdar and Deputy Collector. However, revision came to be entertained by the Collector at the instance of the third respondent herein who was none other than a person who had sold the subject property to the appellants through power of attorney holder Mr. Navinbhai. As to whether, said power of attorney holder had right to sell property and whether vendor Mr. However, revision came to be entertained by the Collector at the instance of the third respondent herein who was none other than a person who had sold the subject property to the appellants through power of attorney holder Mr. Navinbhai. As to whether, said power of attorney holder had right to sell property and whether vendor Mr. Mayank Patel had any right to sell his undivided half share i.e. subject property in favour of the appellants cannot be subject matter of scrutiny or adjudication by the revenue authorities. Third respondent, being conscious of these facts, has initiated proceedings before the Civil Court by filing a suit for declaration in respect of the suit property and has also sought for cancellation of the sale deeds dated 24.5.2007 said to have been executed by his power of attorney holder in favour of the appellants in Special Civil Suit Nos. 302 and 303 of 2007 which are pending before the court of Additional Civil Judge, Senior Division, Vadodara. Said pendency cannot be used as lever to upset revenue entries made by the revenue authority pursuant to the registered sale deeds. This Court in the case of Jashwantlal Raval vs. State of Gujarat and Another, 2009 (2) GLR 1743 has rightly observed that merely by filing the suit in the Civil Court and by getting the said lis pendens registered, petitioner would not acquire any right which is required to be recorded in the revenue record of the village maintained by the village accountant. It is also trite law that revenue entry would not confer any title. It is only a document for recovery of tax. If such entries are made and civil litigation is pending in respect of the said property, it is needless to state that any such entries made by the revenue authority would be subject to result of such civil suit. 8. In that view of the matter, we are of the considered view that Collector, SSRD as well as learned Single Judge committed an error in ignoring the glaring aspect of appellants being title holders of the subject property by virtue of registered sale deeds dated 25.4.2007 and they had right to seek for mutation of revenue record in their favour. As such, said orders cannot be sustained and accordingly, they are set aside. 9. As such, said orders cannot be sustained and accordingly, they are set aside. 9. In this appeal, it has been brought to our notice that suits in question having been filed on 4.7.2007, it seems that an application under Order 39, Rule 1 and 2 CPC seeking temporary injunction was filed before the learned trial Judge which resulted in an order of temporary injunction being granted in favour of the plaintiff therein i.e. third respondent herein. Being aggrieved by the said orders, two appeals were filed, one Appeal from Order No. 377 of 2011 before this Court and on account of lack of pecuniary jurisdiction, another appeal before the District Court being Misc. Civil Appeal No. 52 of 2012 (still pending). Appeal from Order No. 377 of 2011 came to be disposed of by this Court on account of joint statement made by respective learned advocates on 16.12.2022 whereunder they requested the learned Single Judge adjudicating appeals not to decide the present appeal on merits and requested learned Single Judge that interim relief granted on 19.10.2011 to be continued till final disposal of the suits. At the joint request made and recording the same, learned Single Judge accordingly disposed of the appeal. Virtually, this order would also take within its sweep adjudication of Misc. Civil Appeal No. 52 of 2012 pending before learned District Court, Vadodara. Learned District Judge adjudicating Misc. Civil Appeal No. 52 of 2012 and said Court is directed to dispose of said appeal forthwith accordingly. 10. In both the appeals, undisputedly there was no order of stay of further proceedings granted by either of the appellate court i.e. either learned Single Judge of this Court adjudicating Appeal from Order No. 377 of 2011 or learned District Judge adjudicating Misc. Civil Appeal No. 52 of 2012. Yet, for reasons best known, suits have been kept pending by the learned trial Court for past 13 years without any rhyme or reason. Such incidents have been noticed by this Court on number of occasions. Civil Appeal No. 52 of 2012. Yet, for reasons best known, suits have been kept pending by the learned trial Court for past 13 years without any rhyme or reason. Such incidents have been noticed by this Court on number of occasions. As such in exercise of our powers under Article 226 of the Constitution of India, following directions are issued to all the learned trial Judges herein-below: (1) Whenever there is no stay of further proceedings passed by a higher court, jurisdictional trial Court shall not stall proceedings but shall dispose of the proceedings pending before it on merits notwithstanding order passed by said Court having been challenged, unless orders have been passed staying further proceedings. (2) If there is any order passed by a higher court either indicating there being stay of further proceedings or trial Court has been directed not to proceed with the trial, only in such circumstances, proceedings can be deferred and not otherwise. (3) These directions shall be followed scrupulously and respective Principal District Judges/Principal Judges shall apprise all the Judicial Officers discharging duties in their jurisdiction of this order in the next review meeting without fail. (4) Registry shall communicate this order to all the Presiding Officers of the State. 11. On account of there being no stay and still the suits having not been proceeded which has been filed way back in the year 2007 and more than 15 years having passed, we deem it proper to fix time frame to the trial Court to dispose of suits (Special Civil Suit Nos. 302/2007 and 303/2007) pending before it in the following manner: Plaintiff’s evidence shall be concluded on or before. 18.1.2023 Cross-Examination of plaintiff shall be concluded on or before. 21.1.2023 Further evidence of plaintiff’s witnesses if any shall be concluded on or before. 24.1.2023 Cross-Examination of plaintiff’s witnesses shall be concluded on or before. 27.1.2023 Defendant’s evidence if any shall be concluded on or before. 31.1.2023 Cross examination of defendant’s witnesses examined shall be concluded on or before. 2.2.2023 Further evidence of defendant’s witnesses if any shall be concluded on or before. 4.2.2023 Cross examination of defendant’s witnesses if any shall be concluded on or before. 7.2.2023 Plaintiff’s arguments shall be concluded on or before. 10.2.2023 Defendant’s arguments shall be concluded on or before. 13.2.2023 Reply arguments if any shall be concluded on or before. 2.2.2023 Further evidence of defendant’s witnesses if any shall be concluded on or before. 4.2.2023 Cross examination of defendant’s witnesses if any shall be concluded on or before. 7.2.2023 Plaintiff’s arguments shall be concluded on or before. 10.2.2023 Defendant’s arguments shall be concluded on or before. 13.2.2023 Reply arguments if any shall be concluded on or before. 15.2.2023 Learned trial Judge shall pronounce the judgment on or before. 28.2.2023 12. It is made clear that learned advocates appearing for both parties shall cooperate with the learned trial Court for disposal of the suit within time frame fixed hereinabove and learned trial Court would be at liberty to regulate its proceedings by putting the party on such terms as it deems fit. In the event of any adjournment being sought for without any justifiable cause to the satisfaction of the learned trial Court, it would be at liberty to put the parties on such terms as it deems fit including imposing exemplary costs for regulating the proceedings. 13. Mr. Majmudar, learned counsel appearing for the appellants, on instructions, submits that by virtue of revenue entries being mutated in favour of the appellants, they would not further alter or change the said mutation entries and no steps would be taken by the appellants for creating charge or encumbrance over the subject property till the final disposal of the suits. His submission and undertaking is placed on record. 14. For the reasons aforesaid, we proceed to pass the following order. ORDER: (1) Appeal is allowed. (2) Order dated 26.10.2018 passed in Special Civil Application No. 18492 of 2014, order dated 21.10.2014 passed by SSRD and order dated 16.5.2014 passed by the Collector are hereby set aside and order dated 31.1.2013 as well as order dated 9.6.2010 passed by the Deputy Collector and Mamlatdar respectively are upheld. Jurisdictional Mamlatdar shall mutate revenue records to the names of appellants of the subject property expeditiously and at any rate within one week from the date of receipt of copy of this order which would be subject to the result and outcome of Special Civil Suit Nos. 302 and 303 of 2007. Jurisdictional Mamlatdar shall mutate revenue records to the names of appellants of the subject property expeditiously and at any rate within one week from the date of receipt of copy of this order which would be subject to the result and outcome of Special Civil Suit Nos. 302 and 303 of 2007. (3) Principal District Judge, Vadodara shall take steps to list both suits i.e. Special Civil Suit No. 302 of 2007 and 303 of 2007 before one Court to avoid conflicting decisions being rendered and said Court shall dispose of the suits within time frame fixed hereinabove. (4) Non-receipt of copy of this order shall not be a ground for either of the parties or learned advocates or learned trial Court to proceed with the suits as ordered hereinabove. (5) It is also made clear that observations made by this Court, by learned Single Judge or by revenue authorities in respect of mutation revenue entries relating to subject property shall not influence the learned trial Court while adjudicating the suits and same shall be decided and disposed of on merits and in accordance with law. (6) No order as to costs. (7) Registry is directed to communicate this order to the jurisdictional Court. 14. Civil Application (for stay) No. 1 of 2018 stands disposed of accordingly.