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2024 DIGILAW 648 (GUJ)

Sunil Jayantilal Jayaswal v. State Of Gujarat

2024-03-26

NIRZAR S.DESAI

body2024
JUDGMENT : 1. By way of this petition, the petitioner has prayed for the following reliefs; “(17) ... (A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus certiorari or a writ in the nature of Mandamus/Certiorari and/or any other appropriate writ, order or directions quashing and setting aside the impugned (i) order dated 12.1.2022 passed by the learned Special Secretary, Revenue Department (Appeals) in Revision Application No. MVV/HKP/VDD/188 of 2019 (Annexure L to the present petition) (ii) the order dated 16.9.2019 passed by the Collector, Vadodara in Revision Application No. 177 of 2018 (Annexure H to the present petition) (iii) order dated 23.4.2018 passed by the Deputy Collector in RTS Appeal Nos. 363 and 364 of 2016 (Annexure G to the present petition) as well as (iv) the order dated 20.5.2016 passed by the Mamlatdar in RTS Case No.3 of 2016 (Annexure E to the present petition) as well as order dated 20.5.2016 passed by the Mamlatdar in RTS Case No. 17 of 2016 (Annexure F to the present petition) and YOUR LORDSHIPS may be pleased to direct the respondent authorities to set aside Entry No. 6435 and to certify Entry No. 6433 in the interest of justice; (B) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the operation, implementation and execution of the impugned (i) order dated 12.1.2022 passed by the learned Special Secretary, Revenue Department (Appeals) in Revision Application No. MVV/HKP/VDD/188 of 2019 (Annexure L to the present petition) (ii) the order dated 16.9.2019 passed by the Collector, Vadodara in Revision Application No. 177 of 2018 (Annexure H to the present petition) (iii) order dated 23.4.2018 passed by the Deputy Collector in RTS Appeal Nos. 363 and 364 of 2016 (Annexure G to the present petition) as well as (iv) the order dated 20.5.2016 passed by the Mamlatdar in RTS Case No.3 of 2016 (Annexure E to the present petition) as well as order dated 20.5.2016 passed by the Mamlatdar in RTS Case No. 17 of 2016 (Annexure F to the present petition) and YOUR LORDSHIPS may be pleased to direct the respondents to maintain status quo with regard to the revenue record of the land in question, i.e. land bearing Revenue Survey/Block Nos. 1009 (New No. 1180), 1028 (New Nos. 1009 (New No. 1180), 1028 (New Nos. 1213), 1029/1/A (New No. 1215), 1030 (New No. 1218), 1032/2/B (New No. 1222), 1080 (New No. 1302), 1082 (New No. 1304) 1097/1 (New No. 1321), 1098/2 (New No. 1324 and 1105 (New No. 1345 situated at village Jarod, Tal. Waghodiya, Dist. Vadodara in the interest of justice; (C) ... ” 2. Upon issuance of notice by this Court on 05.04.2022, learned Advocate, Ms. Suthar, had appeared for and on behalf of Respondent No.6, herein and thereafter, this Court passed following order on 01.02.2023; “Learned advocate Ms. Suthar appearing for the respondent no.6 requests for some time in order to file affidavit-in-reply, which shall be filed on or before the next date of hearing. The matter is kept on 16.03.2023. ” 3. Thereafter, on 18.10.2023, following order was passed; “Learned advocate Mr. S.P. Majmudar for the petitioner submitted that by way of these revenue proceedings, his entry pursuant to the registered Will is in question. Learned advocate further pointed out that challenging his Will, the suit was filed by the respondent. The plaint of the suit was returned under Order 7 Rule 10 of the CPC and thereafter, to his information, no further course has been adopted by the private respondent herein. However, learned advocate Ms. Mayurika Suthar for the respondent No.6 is not present. In the interest of justice, re- list this matter on 20.10.2023. To be listed on top of the Board. ” 4. The order passed by this Court on 03.11.2023, reads thus; “It transpires from the record that repeatedly, learned advocate Ms.Mayurika Suthar for the contesting respondent No.6 is not remaining present before this Court. On last occasion i.e. on 18.10.2023, the matter was adjourned because of her want of presence. Today also, when the matter was called out, earned advocate Ms.Mayurika Suthar for the contesting respondent No.6 was not present. In that view, issue Notice upon the respondent No.6 returnable on 20.12.2023, to take note of the aforesaid fact. Needless to say that on the next returnable date, if the learned advocate for the respondent No.6 and/or the respondent No.6 will not remain present, in that event, the matter shall be heard and decided ex-parte. Direct service is permitted. ” 5. The above orders would go to indicate that after filing of appearance on behalf of Respondent No.6, learned Advocate, Ms. Direct service is permitted. ” 5. The above orders would go to indicate that after filing of appearance on behalf of Respondent No.6, learned Advocate, Ms. Suthar, never remained present before this Court and therefore, this Court had to issue a fresh notice to Respondent No.6 on 03.11.2023, making the same returnable on 20.12.2023. According to learned Advocate, Mr. Majmudar, appearing for the petitioner, the last notice issued by this Court is duly served on Respondent No.6 and an affidavit to that effect has also been filed. It appears that despite due service of notice, Respondent No.6 chose not to appear before this Court either in person or through a learned advocate. Learned Advocate, Mr. Majmudar drew the attention of this Court to the order dated 12.01.2022, passed by the Special Secretary, Revenue Department (Appeals) (in brief, ‘SSRD’) in Revision Application No. MVV/HKP/VDD/188 of 2019 and more particularly, the observations made at Paragraph-3 thereof, which indicate that even before the SSRD also, the private respondents did not appear and did not make any submissions. Therefore, learned Advocate, Mr. Majmudar, prayed that in view of the earlier orders as well as the observations made by the SSRD , as the private respondents do not seem to be interested in contesting the present petition, this Court may take-up this petition and hear and decide the same. 6. Considering the fact that learned AGP, Ms. Sarda, also does not have any objection to conduct this matter, issue RULE. Learned AGP, Ms. Sarda, waives service of rule for Respondent Nos. 1 to 5. 7. With the consent of the learned Advocate, Mr. Majmudar, appearing for the petitioner and learned AGP, Ms. Sarda, appearing for Respondent Nos. 1 to 5, this matter is taken-up for hearing, more particularly, taking into consideration the conduct of Respondent Nos. 6, 7 and 8, who have not put-in appearance and chose not to appear before this Court, despite of service of notice. 8. The brief facts of the case are that the present petitioner and Respondent Nos. 6 and 7 are real brothers, whereas, Respondent No.8 is the sister of the present petitioner, as per the instructions received by learned Advocate, Mr. Majmudar. 9. It is the case of the petitioner that the dispute pertains to the lands bearing Revenue Survey/Block Nos. 1009 (New No. 1180), 1028 (New Nos. 6 and 7 are real brothers, whereas, Respondent No.8 is the sister of the present petitioner, as per the instructions received by learned Advocate, Mr. Majmudar. 9. It is the case of the petitioner that the dispute pertains to the lands bearing Revenue Survey/Block Nos. 1009 (New No. 1180), 1028 (New Nos. 1213), 1029/1/A (New No. 1215), 1030 (New No. 1218), 1032/2/B (New No. 1222), 1080 (New No. 1302), 1082 (New No. 1304) 1097/1 (New No. 1321), 1098/2 (New No. 1324 and 1105 (New No. 1345 situated at village Jarod, Tal. Waghodiya, Dist. Vadodara. 10. Aforesaid lands, i.e. the lands in question, belonged to the father of the petitioner, namely Jayantilal Jayswal, who purchased the same by way of registered sale deed for which an entry was mutated in the Revenue Record on 18.05.1965. The father of the petitioner executed a registered Will in favour of the petitioner on 03.08.2015 for all the properties, including the lands in question. The father of the petitioner, namely Jayantilal Jayswal, passed away on 17.11.2015. Thereafter, the petitioner applied for mutation of an entry in respect of the registered Will and initially, an entry being Entry No. 6433 was made. However, the aforesaid entry was not certified and instead, Entry No. 6435 came to be mutated on 29.12.2015, reflecting the names of all the legal heir of Jayantilal Jayswal and the same was also certified, later on. 11. Therefore, a dispute raised by the petitioner by way of RTS Case No. 3 of 2016 and RTS Case No. 17 of 2016. The concerned Mamlatdar vide order dated 20.05.2016, passed in RTS Case No. 3 of 2016, did not certify Entry No. 6433, however, the Mamlatdar did certify Entry No. 6435 in RTS Case No. 17 of 2016. 12. Being aggrieved with the same, the petitioner preferred RTS Appeal Nos. 363 & 364 of 2016 before the Dy. Collector, who dismissed the same vide order dated 23.04.2018. Therefore, the petitioner preferred Revision Application No. 177 of 2018, before the Collector, Vadodara. The Collector, Vadodara, dismissed the revision applications vide order dated 16.09.2019. Thereafter, the petitioner preferred Revision Application No. MVV/HKP/VDD/188 of 2019 before SSRD, which came to be dismissed vide order dated 12.01.2022. Therefore, the petitioner has preferred the present petition. 13. Therefore, the petitioner preferred Revision Application No. 177 of 2018, before the Collector, Vadodara. The Collector, Vadodara, dismissed the revision applications vide order dated 16.09.2019. Thereafter, the petitioner preferred Revision Application No. MVV/HKP/VDD/188 of 2019 before SSRD, which came to be dismissed vide order dated 12.01.2022. Therefore, the petitioner has preferred the present petition. 13. It may be noted that, in the meantime, in Regular Civil Suit No. 198 of 2016, filed by Respondent No.6 - Jagdishkumar Jayantilal Jayswal, challenging the registered Will, interim injunction was refused vide order dated 30.09.2016 and thereafter, by order dated 31.01.2017, the aforesaid Suit, itself, came to be dismissed on the ground that the concerned Court was not having the jurisdiction to hear the Suit. 14. According to learned Advocate, Mr. Majmudar, thereafter, no further action has been taken by the contesting Respondent Nos. 6 to 8 and that the petitioner is not aware about pendency/institution of any other Suit or civil proceedings, whereby, the validity of the registered Will in question is challenged by any of the contesting Respondent Nos. 6 to 8. 15. Learned Advocate, Mr. Majmudar, submitted that it is well settled by now, that once a person becomes owner of a land, by way of a registered Will, subject to the final outcome of civil suit or revenue proceedings, if any, an entry is required to be mutated in the revenue record in respect of the beneficiary of the Will. He, further, submitted that, today, there is no civil suit pending, whereby, the validity of the Will is challenged by the private Respondents Nos. 6 to 8. He submitted that in view of the decision of this Court Dated: 21.06.2006, rendered in the case of ‘Chhimiben Wd/o. Gopalbhai Vs. State of Gujarat’ in Special Civil Application No. 2956 of 2006, whereby, it is held by this Court that whether, a will is fraudulent or not can be examined in the civil proceedings and until, such a finding is arrived at in the Suit that the mandatory procedure is not followed or that the Will is not genuine, the entry can be allowed to be continued on revenue record subject to the outcome of the proceedings. 16. Learned Advocate, Mr. 16. Learned Advocate, Mr. Majmudar, submitted that the operation of revenue entry should be subject to final outcome of the civil proceedings and he placed reliance on the decision of this Court dated 06.05.2003, passed in the case of ‘Mumtaz Mehmoodkhan Pathan Vs. State of Gujarat’ in Special Civil Application No. 10151 of 2002, wherein, it is held that unless civil rights are finalized in the Civil Court, the name of the petitioner shall remain in the revenue record qua the title and possession of the property. 17. It was, further, submitted that the aforesaid two decisions would squarely apply to the fact of the present case, as today, the petitioner is holder of the Will and the same is neither challenged before any Civil Court nor is there any civil litigation pending between the parties with regard to the same and therefore, this petition may be allowed by quashing and setting aside the impugned orders. 18. As note herein above, despite due service of notice, Respondent Nos. 7 and 8 chose not to appear before this Court, whereas, Respondent No.6, initially, put-in appearance through learned Advocate, Ms. Suthar, since, she was not remaining present, a fresh notice was issued to Respondent No.6. Despite of due service of fresh notice, Respondent No.6 has chosen not to remain present before this Court and even he is not represented by any other person, today. Therefore, this Court was constrained to take-up this matter for hearing in absence of Respondent Nos. 6, 7 and 8. 19. Learned AGP, Ms. Sarda, submitted that the dispute is between the private parties. However, she defended the orders passed by the revenue authorities as well as by the State and submitted that at the relevant point of time, Civil Suit was pending between the parties and therefore, the Respondent authorities were justified in not certifying Entry No. 6433 in favour of the present petitioner. She, therefore, prayed that this petition be dismissed. 20. Having heard the learned Advocates for the parties and having perused the material on record, it appears that in Regular Civil Suit No. 198 of 2016, filed by Respondent No.6 - Jagdishkumar Jayantilal Jayswal challenging the registered Will, initially, interim injunction was refused by the learned Addl. Chief Judicial Magistrate, Vadodara, vide order dated 30.09.2016 and thereafter, learned 14th Addl. Sr. Chief Judicial Magistrate, Vadodara, vide order dated 30.09.2016 and thereafter, learned 14th Addl. Sr. Civil Judge, Vadodara, by order dated 31.01.2017, dismissed the Suit on the ground that the concerned Court was not having the jurisdiction to hear the Suit. 21. The record does not indicate that pursuant to the above, any of the contesting Respondents, i.e. Respondent Nos. 6, 7 and 8, has challenged the Will. Even on perusal of the order passed by the SSRD, Dated: 12.01.2022, passed in Revision Application, it does not throw any light on the aspect, as to whether, any other Suit was instituted or not. Therefore, this Court has a reason to accept the submission made by learned Advocate, Mr. Majmudar, that the petitioner is not aware, as to whether, any of the contesting Respondents preferred any other suit or not. 22. I have also considered the decisions relied on by the learned Advocate, Mr. Majmudar. In the case of ‘Mumtaz Mehmoodkhan Pathan’ (Supra), this Court has held as under at Paragraph-5; “5 In view of the aforesaid, I find that it had come on record that the entry was mutated in the year 1981 on the basis of the registered will and when it had come on record before the Secretary of the State Government that Civil Suit which is preferred by the respondents nos.3, 4 and 5 is pending in the Civil Court and earlier entry came to be mutated on the basis of the registered will, the Secretary ought to have relegated respondents nos.3, 4 and 5 to await until the outcome of Civil Suit No.972 of 1993. He ought not to have observed for examining the right on the basis of succession over the property in question. When the basis of the right of the petitioner is on a registered will, unless the Court makes a declaration that the will is unlawful or is otherwise, the successory right over the property cannot be asserted. He ought not to have observed for examining the right on the basis of succession over the property in question. When the basis of the right of the petitioner is on a registered will, unless the Court makes a declaration that the will is unlawful or is otherwise, the successory right over the property cannot be asserted. I am not expressing any final opinion on the said aspects since the civil suit is pending before the appropriate Court but, suffice it to say that the Secretary of the State Government ought not to have dismissed the revision by observing that until the suit is decided the revenue officer can examine the matter on the basis of the successory right over the property in question and therefore in my view the Secretary has committed an error which is apparent on the face of the record and it can also be said that he has exceeded in exercise of the jurisdiction while deciding the revision application.” 23. Similarly, in the case of ‘Chhimiben Wd/o. Gopalbhai’ (Supra), the observations made by this Court reads thus; “4. It is by now well settled that the entry in the revenue record neither confers any additional right over the property nor takes away or alters the rights in the property, which otherwise exist as per the provisions of the Transfer of Properties Act or other law and such entries are having value for fiscal purposes. It appears that there is delay on the part of the respondent No. 5 in challenging the decision of the authority mutating the entry. However, the contentions on the part of respondent No. 5 are two fold; one is that the mandatory procedure is not followed and another is that the Will is a fraud. Whether the mandatory procedure is followed or not and whether the Will is genuine or not is an aspect, which can conveniently be examined in the proceedings of the Civil Suit which has been filed by the petitioners being Civil Suit No. 664/05. Therefore, until such finding is arrived at in the Suit that the mandatory procedure is not followed or that the Will is not genuine, the entry can be allowed to be continued on revenue record subject to the outcome of the proceedings of Regular Civil Suit No. 664/05. Therefore, until such finding is arrived at in the Suit that the mandatory procedure is not followed or that the Will is not genuine, the entry can be allowed to be continued on revenue record subject to the outcome of the proceedings of Regular Civil Suit No. 664/05. In the event, the respondent No. 5 succeeds in the Suit, appropriate recording will have to be made in the revenue record and the rights of the parties may prevail accordingly. Until such declaration is given by the Civil Court that the Will is not genuine or that the mandatory procedure is not followed, it was not required for the State Government to give a declaration that the entry was a nullity and even the subsequent entry which was not subject matter of the proceedings of the revision could not be cancelled. No further discussion is required in this regard since the position of the law is settled. The reference may be given to the decision of this Court in the case of Jhaverbhai Savjibhai Patel through P.A.O. Holder Ashok J. Patel Vs. Kanchaben Nathubhai Patel & Ors. reported at 2005 (3) GLR 2233 . Of course, it was a case of a Registered Sale Deed, but in the present case, since the entry was based on the Will and it is continued on record for a long time and the Civil Court may also be required to examine as to whether probate was a mandatory requirement in a Will executed by Hindu when the property is not situated in Bombay, Madras or Calcutta, the same analogy as it was observed in case of Jhaverbhai Savjibhai Patel(Supra) can be made applicable even in the facts of the present case. 5. Therefore, considering the facts and circumstances and in view of the aforesaid observation, I find that the order of the State Government dated 17.01.2006 which is impugned in this petition, deserves to be quashed and set aside with observations and directions that the entry Nos. 344 & 701 shall continue in the revenue record subject to the outcome of the proceedings of the Civil Suit no. 664 of 2005 and after the decision of the Civil Court in the aforesaid Suit pertaining to the property in question, rights of the parties shall stand governed accordingly.” 24. 344 & 701 shall continue in the revenue record subject to the outcome of the proceedings of the Civil Suit no. 664 of 2005 and after the decision of the Civil Court in the aforesaid Suit pertaining to the property in question, rights of the parties shall stand governed accordingly.” 24. The aforesaid observations were made by this Court in the aforesaid two decisions in the background, where, Civil Suits were pending. In the instant case, there is nothing on the record, which would suggest that any Civil Suit is pending between the parties. Thus, in the opinion of this Court, in absence of any challenge to the validity of the registered Will, the Respondent-authorities are not justified in not certifying Entry No. 6433. 25. Resultantly, the impugned orders passed right from the Mamlatdar upto SSRD are quashed and set aside and the present petition is ALLOWED in terms of the reliefs prayed for at Paragraph-17(A), thereof. However, the same shall be subject to the pending civil proceedings, if any, or that may arise/take place in respect of the Will in future. Rule is made absolute to the aforesaid extent. No order as to costs.