NEUTRAL CITATION
C/CA/1790/2023 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY)
NO. 1790 of 2023
In F/LETTERS PATENT APPEAL NO. 29838 of 2023
With
F/LETTERS PATENT APPEAL NO. 29838 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6678 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In F/LETTERS PATENT APPEAL NO. 29838 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6678 of 2016
With
R/CIVIL APPLICATION NO. 1792 of 2023
In F/LETTERS PATENT APPEAL NO. 29840 of 2023
With
F/LETTERS PATENT APPEAL NO. 29840 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6681 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In F/LETTERS PATENT APPEAL NO. 29840 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 6681 of 2016
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DECEASED VASUDEV NARAYNBHAI RAJGOR THROUGH
LH MAHENDRABHAI VASUDEV RAJGOR
Versus
SPECIAL SECRETARY REVENUE DEPARTMENT
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Appearance:
MR DHAVAL D VYAS(3225) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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NEUTRAL CITATION
C/CA/1790/2023 ORDER DATED: 01/11/2023
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CORAM:HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE
ANIRUDDHA P. MAYEE
Date : 01/11/2023
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL)
1. These appeals have been filed in the name of a dead person through his heir and legal representative namely Mahendrabhai Vasudev Rajgor. When we pointed this fact to Shri Dhaval D. Vyas, learned counsel appearing for the appellant, he would submit that an inadvertent mistake has crept in while drafting the cause-title of the appeals. As prayed for, permission is granted to the learned counsel to make necessary corrections in the cause-title during the course of the day.
2. As the dispute raised in both the appeals is with respect to the same property and they are arising out of a common order, they have been heard together and are being decided by this common judgment.
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3. Before entering into the merits of the appeals, we may record that both the appeals are highly belated by 1223 days and the explanation for delay is not to the satisfaction of the Court. However, proceeding on merits, we may note that these Intra-Court appeals arise out of a mutation proceeding with respect to two properties namely Survey Nos. 24 and 29, Mouje: Tajpura, Taluka: Halol, District: Panchmahals.
4. The petitioner herein claims to be the heir and legal representatives of Vasudev Narayandas Rajgor and trustee of Narayan Dham Trust, Mouje: Tajpura, Taluka: Halol, District: Panchmahals. It seems that in the mutation proceeding initiated by the respondent Nos. 2 to 6 herein, objections were raised by the petitioner to the effect that the property in question belongs to the Trust, created as Narayan Dham Trust. Vague assertions have been made in the writ petition that late Narayanbapu permitted the Trust to be created in the name of Narayan Dham Trust at Mouje: Tajpura, Taluka: Halol, District: Panchmahals, for registration of which an application under the Bombay Public Trust Act, 1950 (now, the Page 3 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined Gujarat Public Trust Act, 1950) was moved by one of the Trustees namely Shah Vallabhdas Shantilal on 03.07.1975. As per the averments made in the writ petition, after making inquiry under Section 19, the Trust was registered by the order dated 23.07.1975 passed by the Assistant Charity Commissioner. The Registration Certificate dated 23.07.1975 is appended as Annexure 'C' to the writ petition.
4.1 It is then stated in various paragraphs of the writ petition that the Trust is being managed and the property in question namely Survey Nos. 24 and 29, subject matter of mutation proceeding, were forming part of the lands details of which had been entered in the register of the Trust prepared in the year 1975. 4.2 It is also stated in the writ petition that even before the registration of the Trust, late Shri Narayanbapu had executed a Power of Attorney on 26.04.1973 in favour of his son Vasudevbhai Narayandas Rajgor, deceased father of the petitioner. As per the instructions of late Narayanbapu, the Trustees namely the deceased Page 4 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined father of the petitioner was efficiently and legally managing the Trust for Charitable and Education purposes. Initially, two Trustees were appointed namely Vallabhdas Shantilal Shah and Vasudevbhai Narayandas Rajgor and on death of one of the Trustees namely Vallabhdas Shantilal Shah, the Change Report was submitted and name of Mahendrabhai Vasudev Rajgor, i.e. the petitioner herein was entered by the order dated 06.09.2008.
4.3 It is further submitted that on death of Narayanbapu, his son and Trustee namely Vasudevbhai Narayandas Rajgor, the father of the petitioner herein made an application on 05.03.2008 on behalf of the Trust to enter the name of Narayan Dham Trust in the revenue record in respect of the land bearing Survey No. 29. Both the applications moved by the respondent Nos. 2 to 6 for mutation of their names as legal heirs and representatives of Narayanbhai Kalidas, the original owner of the property in question, and the application to record the name of the Trust, moved by the father of the petitioner have been decided together leading to the passing of a common order dated 07.07.2015 in two revision applications namely Page 5 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined RTS Revision Application No. MVV/HKP/PNCH/7/2014 and the RTS Revision Application No. MVV/HKP/PNCH/1/2015. The writ petition, out of which two appeals have arisen, was filed to challenge the above noted orders by the appellant herein.
5. Having noted the contents of the writ petition, we have gone through the findings returned by the Secretary (Appeals), Revenue Department, as noted by the learned Single Judge in paragraph '8' of the judgment impugned. They are relevant to be noted herein below:
"8. The issue was litigated by both parties at various levels and the Secretary (Appeals), Revenue Department has recorded that considering the impugned order of Collector, it appears that the land of Survey no.24 at Mauje Tajpur, Taluka Halol was possessed by Narayanbhai Kalidas whereas the land of Survey no.29 was jointly possessed by Shri Sukhabhai Chhababhai and Desaibhai Chhabhabhai alongwith Rajgor Narayandas Kalidas. Therefore, even if there is a trust, the share of Sukhabhai and Chhababhai does not go to the trust. They have not been made a party nor any Gift Deed is in existence. If the trust had been formed in 1975, Narayandas has not mentioned thereabout until 2007 while he was alive. The said so-called trust has been formed by Vasudevbhai Narayandas and Vallabhdas Shantilal Shah. The application for the so called trust does not bear signature of Narayandas. On the other side, when Rajgor Vasudev Naranbhai died on 18/07/2013, entry no. 413 to include the names of his successors had been mutated. When the stated mutation entry Page 6 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined was allowed, the names of his family members have been shown in the column for occupants in Form-7 of village land records for the disputed land. On one side, the applicant has mutated an entry for his and his family members' names as if the disputed land is individually owned and on the other side, a point about land of trust is raised. For that, there is a bar of principle of estopple. Hence, the order issued by the Mamlatdar seems to be appropriate as the disputed land is not found to be owned by the trust. It is not to be determined here whether the trust is a fraud or not. The parties may approach the Civil Court for such relief. Further, if it is a property of trust, it is also to be examined whether the trust is an agricultural trust or not, whether the permission of competent authorities has been secured or not for purchasing the land and whether the land is used for other than agricultural purpose or not. If it is a property of trust, an order by the Civil Court is required to be produced."
5.1 On the said findings returned by the learned Single Judge, when we raised pertinent query to the counsel for the petitioner as to whether the property in question has ever been recorded in the name of the Trust, the only answer is that it finds mention in the register of the Charity Commissioner. However, it is an admitted fact of the matter that apart from the alleged sole entry, there is no mention of the property in question being the Trust property in the revenue records at any point of time. The property in question, admittedly owned by Narayanbhai Kalidas along with other co-owners, details of whom are lacking in the writ petition. The petitioner herein is Page 7 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined also claiming through one of the heirs of Narayanbhai Kalidas, who according to the petitioner had created Trust in the year 1975. In any case, from the averments in the writ petition, as noted herein above, the Trust was not created by the original owners of the property including Narayanbhai Kalidas, who happened to be the grandfather of the petitioner herein. It is the own case of the petitioner that the Trust was created by his father namely Vasudevbhai Narayandas Rajgor along with one Vallabhdas Shantilal by moving an application on 03.07.1975 before the Charity Commissioner. It is not known nor there is any material as to in whose name the property in question was recorded on 03.07.1975, i.e. on the date when the application was moved under Section 18 for creation of the Trust in the name of Narayan Dham Trust at Mouje: Tajpur, Taluka: Halol, District: Panchmahals.
5.2 There is a categorical finding recorded by the Revenue Secretary, as affirmed by the learned Single Judge, that Survey No. 29 was jointly possessed by two other persons namely Shri Sukhabhai Chhababhai and Desaibhai Chhababhai along with Page 8 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023 NEUTRAL CITATION C/CA/1790/2023 ORDER DATED: 01/11/2023 undefined Rajgor Narayandas Kalidas. The question, therefore, would be as to how the share of those two co-sharers could go to the Trust. None of them have not been made party in the Trust Deed nor there is any Gift Deed in existence. From the above, as is evident, in absence of details about the actual ownership of the property in question on the date of the creation of the Trust and that apart from the alleged sole entry in the register of the Charity Commissioner there is no document of transfer of the property in question to the Trust or creation of the Trust over the property in question. No infirmity as such can be found in the decision of the learned Single Judge. The appeals are dismissed, accordingly, both on the grounds of delay as well as on merits. Connected applications also stand dismissed, accordingly.
[ Sunita Agarwal, CJ. ] [ Aniruddha P. Mayee, J. ] hiren /1-2, SB-II-1-2 Page 9 of 9 Downloaded on : Fri Nov 03 20:38:25 IST 2023