Vankar Labiben D/O Maghabhai ... vs The State Of Gujarat
2021 Latest Caselaw 18616 Guj

     C/SCA/4818/2019                             JUDGMENT DATED: 21/12/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4818 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         Yes

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                 VANKAR LABIBEN D/O MAGHABHAI MULABHAI
                                 Versus
                         THE STATE OF GUJARAT
==========================================================
Appearance:
DECEASED LITIGANT(100) for the Petitioner(s) No. 2,2.1
MR BHAVESH J PATEL(6801) for the Petitioner(s) No. 1,2.1.1,2.1.2
MR. RADHESH Y VYAS(7060) for the Petitioner(s) No. 1,2
MS. DHWANI TRIPATHI, AGP (1) for the Respondent(s) No. 1
MR PRADIP J PATEL(5896) for the Respondent(s) No. 8
MR YM THAKKAR(902) for the Respondent(s) No. 2,4,5,6,7
NOTICE SERVED BY DS(5) for the Respondent(s) No. 10,11,12,13,3,9
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 21/12/2021

                            ORAL JUDGMENT

1. By way of filing the present petition, the petitioners have challenged the order dated 30.1.2019 passed by the Additional Secretary, Revenue Department, State of Gujarat in Application

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being HKP/MHS/2/2018 quashing and setting aside the order dated 14.3.2017 passed by the District Collector, Mahisagar below RTS Appeal No. 74/15/Vashi-625-641.

2. The brief facts of the petition are as under:

2.1 The land bearing Survey No. 201 at Moje: Motasonala, Taluka: Lunavada, District: Mahisagar admeasuring Hec. Are.Sq. Mt 02-57-99 was an old tenure land, which was owned by Vankar Mula Punja. The present petitioner and Respondent Nos. 2 to 9 are the descendants of Vankar Mula Punja. Another land bearing Survey No. 331 of the same village also belongs to Vankar Mula Punja. Vankar Mula Punja had two sons i.e. Mandha Mala and Jetha Mala.

2.2 After the demise of Jetha Mula, name of his legal heirs namely Ramabhai Jetha, Punja Jetha, Hira Jetha and Ratna Jetha was mutated by revenue entry No. 251. After death of Punja Jetha, name of Ghumibai, widow of Punjabhai was entered in revenue records by virtue of entry No. 483, as a guardian of minor children Govindbhai and Muliben. It is alleged that from 1.10.1964 by entry no. 489 the names of Madhabhai Mulabhai, Hirabhai Jethabhai, Ratnabhai Jethabhai, Ramabhai Jethabhai and Ghumiben as guardian of minor children Govindbhai and Muliben were on record of village revenue record.

2.3 After the death of Ramabhai Jethabhai, by virtue of entry No. 1398 on 24.8.1995, the name of legal heirs Nathabhai and Jamnaben were brought on record. After the demise of

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Madhabhai Mulabhai i.e. father of the petitioners, by virtue of entry No. 1467 dated 23.12.1997, the name of legal heirs Lebhiben and Jethiben were brought on record. The private respondents are the cousin brothers of petitioners, who had accepted all the social responsibilities as if real brothers and, therefore, it was decided by the petitioners that they will waive their right in respect of Revenue Survey No. 331 and accordingly in the year 2005, an application was given for mutation in respect of revenue survey No. 331 in light of decision of petitioners to waive their right.

2.4 It is alleged that in the year 2012, the petitioners came to know regarding the entry No. 1719 which came to be mutated in the year 2005 in respect of revenue survey No. 201 in village records on the basis of relinquishment/ waiver of right by occupiers i.e. present petitioners, which was certified on 26.4.2005. It is contended that they being legal heir of Madhabhai Mulabhai, were entitled for half of the land in respect of both revenue survey No. 331 and 201, along with half share of legal heirs of Jetha Mulabhai Vankar. It is also contended that after the death of Madhabhai Mulabhai i.e. father of the petitioners in 1997, by virtue of entry No. 1467 on 23.12.1997, the names of legal heirs Lebhiben and Jethiben were brought on record of both revenue survey Nos. 331 and 201. It is alleged that they have relinquished their right only for the land bearing Revenue Survey No. 331, but fraudulently their names in respect of Revenue Survey No. 201 came to be deleted by entry No. 1719 and was mutated in the year 2005. It is contended that no mandatory notice under Section 135-D of the Gujarat Land

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Revenue Code was issued to the petitioners in respect of the land bearing Survey No. 201.

2.5 On the aforesaid basis, the petitioners challenged the mutation entry No. 1719 by preferring RTS Appeal No. 5 /2012 before the learned Deputy Collector, District: Mahisagar. The Deputy Collector has partly allowed the appeal and the matter came to be remanded back to the Mamlatdar by order dated 29.4.2015. Thus, order of teh Deputy Collector, Mahisagar was challenged by the respondents by way of RTS Appeal No. 74/15 before the learned Collector, Mahisagar. The learned Collector vide order dated 14.3.2017 quashed and set-aside the order of the Deputy Collector and cancelled the revenue entry No. 1719 registered in village records of Moje village Sonela, Taluka: Lunavada. Against that order of teh learned Collector, the private respondents have challenged the said order by filing Revision Application and the learned SSRD by order dated 30.1.2019 allowed the revision application on the sole ground that there was delay of 7 years on the part of the present petitioners in approaching the revenue Court and set aside the order of the learned Collector.

2.6 The main contention raised on behalf of the petitioners are that the petitioners had never relinquished their right in land bearing Survey No. 201 and had relinquished their right only for the land bearing Survey No. 331 and yet by fraudulent action, the private respondents got the alleged revenue entry mutated in their names. It is contended that during the proceedings before the revenue authorities, the respondents herein have specifically

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raised and averred the facts that they have sold off revenue survey no. 201 on 16.2.2010 by accepting consideration of Rs.40,000/- and sale transaction was recorded on Rs.100/- Stamp paper in presence of panchas namely Vankardevabhai Vasrambhai and Vankar Dayalbhai Koyabhai. It is contended that both the panchas have died on 13.10.2000 and 12.2.2008 respectively. It is alleged that this action on the part of the private respondents was only with an intention to grab the land any how. It is contended that the entry No. 1719, got obtained by the private respondents, is based on the fraudulent action by creating bogus Stamp paper, wherein the transaction was said to be witnessed by the Panchas, who all had already died at the relevant time. It is contended that since the action of the private resondents were fraudulent and revenue entries were mutated on that basis, no limitation can be attracted in such a situation. It is also contended that no Notice under Section 135-D was ever issued regarding the alleged transaction on Rs.100/- Stamp paper undertaken by the private respondents, and in absence of such notice, the petitioners could not agitate or take objection regarding the alleged entries. It is contended that all these facts have lost sight by learned SSRD, which were already considered by the learned Collector. On all these grounds, it is prayed to set- aside the impugned order of the learned SSRD.

3. Heard Mr. Bhavesh Patel, learned advocate for the petitioner, Ms. Dhwani Tripathi, learned AGP for the respondent State, Mr. Y.M. Thakkar, learned advocate for respondent Nos. 2, 4, 5, 6, 7 and Mr. P.J.Patel, learned advocate for respondent No.8. Perused the material placed on record.

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4. Mr. B.J. Patel, learned advocate for the petitioner has reiterated the same facts which are narrated hereinabove. He has submitted that there is a dispute regarding the rights in Revenue Survey No. 201 only. He has submitted that the petitioners have relinquished their rights in favour of private respondents only for Survey No. 331. He submitted that the revenue entry with regard to the land bearing Survey No. 201 is based upon the alleged transaction recorded on Rs.100/- Stamp paper, which is not a registered one and the names of the Panchas recorded therein, both have died prior to the execution of the alleged sale deed.

4.1 Mr. Patel submitted that the reliance on the Will in the year 2010, two witnesses have already died in 2006 and 2008 and, therefore, the alleged Will is not a legal and valid one and no reliance could be placed on such Will. He has submitted that the learned District Collector has properly appreciated the entire facts and has rightly passed order in favour fo the petitioners whereas learned SSRD has committed serious error of facts in allowing the revision preferred by the contesting respondents only on the ground of delay. He has submitted that when there was fraudulent action on the part of the contesting respondents, the period of limiation cannot be attracted. He has prayed to allow the petition accordingly.

5. Ms. Dhwani Tripathi, learned AGP for the respondent State has stated that there was no prayer made for condonation of delay. She has submitted that the learned SSRD has not committed any error of facts and law in passing the impugned order. She has supported the impugned order of the learned

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SSRD and has prayed to dismiss the present petition.

6. Mr. Y.M.Thakkar, learned advocate for the contesting respondent Nos. 2, 4, 5, 6 and 7 has submitted that vide order passed by the Deputy Collector, Lunavada, Dist. Mahisagar dated 29.4.2015, the matter was ordered to be remanded back to the Mamlatdar, Lunavada to decide the same afresh. He has submitted that the Appeal came to be filed by respondents on 14.3.2017, before the learned Collector, Mahisagar and has submitted that learned Collector has passed the order whereby it has rejected the appeal filed by the respondents and teh order passed by the Deputy Collector came to be set-aside. According to him, the original appeal preferred by the petitioners was under Section 203 of land revenue code and any person aggrieved by the order, approached the higher authority under Section 205 and the limitation period is prescribed therein. While referring to those provisions, Mr. Thakkar learned advocate for the private respondents has vehemently submitted that the appeal was preferred after 7 years and no separate application was filed for condonation of delay and, therefore, no order for condonation of delay was ever passed. He has submitted that there is no need of interference and the Petition be dismissed. He has relied upon the following decision:

(i) In the case of Shambhubhai Rambhai Dhorajiya since deceased through Heirs v. State of Gujarat, reported in 2019 JX (Guj) 988.

7. Mr. P.J. Patel, learned advocate for the respondent No.8 has submitted that respondent No.8 is not a contesting party and

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he has no submissions to make.

8. In rejoinder, Mr. B.J.Patel, learned advocate for the petitioners has submitted that the right of the married woman cannot be taken away merely by making an entry in the revenue record. He has submitted that initiation of proceedings by the concerned is also after a lapse of 8 years and, therefore, the entire action has not been initiated in a reasonable time. He has relied on the following decision in support of his submissions:

(i) In the case of Kamlaben Babarbhai Solanki through Power of Attorney v. State of Gujarat and Others, reported in 2016 (4) GLR 3281;

(ii) In the case of Vineeta Sharma v. Rakesh Sharma and Others, reported in (2020) 9 SCC 1.

9. Heard learned advocates for the parties. Considered the material placed on record. There is no dispute that the original land bearing Survey Nos. 331 and 201 of village: Motasonala, Taluka: Lunavada, Dist. Mahisagar was belonging to deceased Madha Mula. The original entry No. 1467 dated 23.8.1997 clearly shows that the deceased Madha Mula had not male child and had only two daughters, whose names came to be mutated in revenue record, for both these lands as heirs of the deceased. It is also an admitted fact that the petitioners have accepted that they have relinquished their rights over the revenue Survey No.

331. The dispute is regarding as to whether the petitioners have relinquished their rights from the land of Survey No. 201 or not. It is pertinent to note that respondents are heavily relying upon the sale deed alleged to be executed by the two daughters in favour

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of Vankar Haribhai Jethabhai, Vankar Ratnabhai Jethabhai and Vankar Govindbhai Punjabhai. The alleged agreement is annexed at ANNEXURE "D" which is on Rs.100/- stamp paper. But it is not a registered one. It is settled law that transfer of any immovable property needs to be by way of registered sale-deed except where the value of the property is below Rs.100/-. It is revealed from the alleged Sale-deed that consideration for the sale transaction is Rs.40,000/-. Therefore, the said document needs registration. Further, it appears that the stamp papers bears the date 16.12.2020 wherein thumb impression of two daughters namely Jethiben and Lebhiben have been shown to be affixed. Not only that, but the names of the witnesses have also been appended thereto which inludes Vankar Devabhai Vashrambhai, Dayalbhai Koyabhai, Vankar Vala Kana and Vankar Nathabhai Khatabhai.

9.1 It appears from the material placed on record i.e. death certificate of Vankar Devabhai Vashrambhai, that he died on 13.10.2000 i.e. prior to the execution of the said sale deed. It also appears from the death certificate produced on record that Vankar Dayalbhai Koyabhai died on 12.2.2008. Thus, prior to the execution of the alleged sale deed, both these witnesses had already passed away. Under this circumstances, the alleged documents prima-facie appears to be a forged one. Further, on the basis of the said sale-deed, the names of the daughters of Mulabhai have been came to be deleted from the revenue record. The private respondents are not in a position to clarify these material facts relating to the death of two witnesses, as alleged to have been attesting witnesses on the alleged sale-

       C/SCA/4818/2019                                    JUDGMENT DATED: 21/12/2021



deed.

10. In case of Shambhubhai Rambhai Dhorajiya since deceased through Heirs v. State of Gujarat (Supra), the Court has observed as under:

"6. In the instant case, it is not disputed that the predecessor of the respondent No.6 Parshottambhai had preferred three suits one after the other, seeking declaration and permanent injunction in respect of the land in question, however, had not proceeded further with the same and withdrawn all the three for one reason or the other. The last suit being Suit No.10 of 2001 was withdrawn on the ground that the parties had settled their disputes as per the purshis (Exh.16) filed in the said suit, however, it is pertinent to note that there was no settlement placed on record, nor the said purshis bore any signature of Shambhubhai, who was the defendant in the said suit. Be that as it may, the concerned Civil Court vide the order dated 29.8.2002 permitted the plaintiff Parshottambhai to withdraw the said suit with liberty to file fresh suit. However, the said Parshottambhai filed an appeal being No.26/2002 before the Deputy Collector, challenging the order dated 19.8.1995 passed by the Mamlatdar. The said appeal was stated to have been filed under Section 203 of the Code. It is required to be noted at this juncture that in view of Section 205 of the Code, no appeal could have been filed after the expiration of 60 days if the decision or order complained of has been passed by an officer inferior in rank to a Collector or a Superintendent of Survey in their respective departments, nor after the expiration of 90 days in any other case. In the instant case, the said Parshottambhai having preferred the appeal under Section 203 of the Code before the Deputy Collector in the year 2002, challenging the order dated 19.8.1995 passed by the Mamlatdar, i.e. almost after seven years of the said order, the appeal itself was not maintainable in the eye of law in view of Section 205 of the Code. Hence, the Deputy Collector could not have entertained the said appeal after the prescribed period of limitation, and which was grossly time barred. The

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order passed by the Deputy Collector on 16.8.2003, therefore, was clearly without any jurisdiction and authority of law, and the subsequent orders passed by the Collector and the Additional Secretary confirming the said order would also be without any jurisdiction and authority of law".

11. In the case of Kamlaben Babarbhai Solanki through Power of Attorney v. State of Gujarat and Others (Supra), the following observation is made in Paras-6, 7 and 8, which is reproduced as under:

"6. In view of the aforesaid observation made by the Division Bench, the submission of Mr. Mehta that the petitioner was required to file appeal under Section 203 of the said Act, cannot be accepted. So far as the contention with regard to non - maintainability of the Revision Application under section 211 at the instance of Private party is concerned, it has been specifically held in the said decision that it is open to the State Government under Section 211 to exercise revisional powers either suo moto or otherwise and to examine the order or decision of the Collector to find out whether it is legal and proper. On plain reading of Section 211, it clearly transpires that it is a residuary section in the sense that an officer empowered by that section on his own motion or otherwise can correct or set-aside an erroneous decision of the subordinate officer. This power could be exercised by the State government or revenue officer at the instance of any person, even if he is not the aggrieved party. There is nothing in the said Section to suggest that it could be invoked suo moto only and not at the instance of the aggrieved or private party. The court therefore does not find any substance in the submission of Mr. Mehta that the Revision Application at the instance of the petitioner was not maintainable before the respondent no.1.

7. So far as the issue with regard to the period of limitation is concerned, the Division Bench in the aforestated case has relied

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upon the ratio of the decision laid down by the Supreme Court in case of State of Gujarat v/s. Patel Raghav Natha, AIR 1969 SC 1297, in which it has been held as under:- "It is true that there is no period of limitation prescribed under sec.211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

8. From the aforestated legal position, there is no room of doubt that no period of limitation is prescribed for exercising the powers under Section 211, however, the same should be exercised within reasonable time. Since there is no period of limitation prescribed, the question of condoning delay also would not arise. It is needless to say that the powers conferred upon the State Government and the officers mentioned therein to revise the orders of the subordinate officers are discretionary in nature and therefore the State Government may, if it deems fit, not entertain the Revision application on the ground of delay, laches and acquiescence etc., however, in absence of any specific time limit prescribed in the said Section 211, the same could not be rejected on the ground that it has been preferred after the prescribed period of limitation. The insistence of the respondent no.1 or its office directing the parties to file application for condonation of delay, if the order under challenge was passed one year or more prior to filing of the Revision Application, therefore is totally unjustified".

12. The petitioner has challenged the said action of the revenue authority by filing the requisite revenue proceedings before the concerned lower authority. Of course, there was delay on their part but as reflected from the factual aspect, when there was fraudulent action on the part of the private respondents, the removal of the names of the present petitioner from the revenue record itself is void ab-initio and, therefore, there cannot be any

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question of limitation applicable against the present petitioners who have come to know regarding fraud committed by the other side. Right of the daughter cannot be defeated by such a fraudulent action or on the alleged sale-deed, which is surrounded with suspicion. Therefore, even if the petitioner has not moved any application for condonation of delay before the concerned authority for preferring appeal, it does not defeat their right as the initial action based upon non-registered sale- deed, that too having colour of fraud, itself was ab-initio void.

12.1 Therefore, reliance placed on the decisions of Shambhubhai Rambhai Dhorajiya since deceased through Heirs v. State of Gujarat (Supra) is not applicable to the present facts.

13. Now, on perusal of the order dated 14.3.2017 passed by the revenue authority, it clearly transpires that the learned Collector, Mahisagar has properly appreciated the facts and has properly applied the legal provisions by allowing the names of the present petitioners to be mutated in the revenue record. Whereas the learned SSRD has lost sight of the fact that the basis of the deletion of the names of the present petitioners from revenue record is on a unregistered sale-deed, which has no existence in the eye of law. Therefore, impugned order of the learned SSRD needs to be set-aside and the order passed by the learned Collector needs to be confirmed.

14. In view of the above, present petition deserves to be allowed. Accordingly it is allowed. The order dated 30.1.2019 passed by the learned SSRD in Application being

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HKP/MHS/2/2018, Annexure "A" to the petition, is hereby quashed and set aside.

Rule is made absolute. No order as to cost. Direct Service is permitted.

(DR. A. P. THAKER, J) SAJ GEORGE