State Of Gujarat Thro' ... vs Ajay Ashok Sharma
2021 Latest Caselaw 2362 Guj

C/LPA/45/2013                                               JUDGMENT Dt.15.2.2021
STATE OF GUJARAT THRO' SECRETARY(APPEALS) & 3 other(s) Versus AJAY ASHOK SHARMA & 9
other(s)


        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 45 of 2013
                              In
          R/SPECIAL CIVIL APPLICATION NO. 8670 of 2011


FOR APPROVAL AND SIGNATURE:



HONOURABLE DR. JUSTICE VINEET KOTHARI

and

HONOURABLE MS. JUSTICE GITA GOPI

==========================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of India
      or any order made thereunder ?

==========================================================
    STATE OF GUJARAT THRO' SECRETARY(APPEALS) & 3 other(s)
                           Versus
               AJAY ASHOK SHARMA & 9 other(s)
==========================================================
Appearance:
MR UTKARSH SHARMA ASST. GOVERNMENT PLEADER(1) for the
Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 8.6
Advocate Not Given for the Respondent(s) No. 8.7
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1,2,3,4
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 1,2,3,4
RULE SERVED BY DS(65) for the Respondent(s) No. 8.1,8.2,8.3,8.4,8.5


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 C/LPA/45/2013                                               JUDGMENT Dt.15.2.2021
STATE OF GUJARAT THRO' SECRETARY(APPEALS) & 3 other(s) Versus AJAY ASHOK SHARMA & 9
other(s)
RULE SERVED(64) for the Respondent(s) No.
1,10,2,3,4,5,6,7,8.1,8.2,8.3,8.4,8.5,8.7.1,8.7.2,8.7.3,8.7.4,8.7.5,9
UNSERVED EXPIRED (R)(69) for the Respondent(s) No. 8
==========================================================

 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
                            and
        HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 15/02/2021

                     ORAL JUDGMENT

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The present appeal arises against the order dated 18.8.2011 of learned Single Judge allowing the Writ Petition being Special Civil Application No.8670 of 2011 filed by the Purchasers of the land in question Ajay Ashok Sharma and three others and the learned Single Judge has held that on the basis of Registered Sale Deed in their favour, they were entitled to Mutation Entries in the Revenue Record which was entered in their name as Entry Nos. 948, 949, 950 and 951 which entries were set aside by learned District Collector by Revisional Order dated 27.6.2011.

2. The learned Single Judge has observed that the cloud over the title of the disputed land in question of the purchasers in the form of Civil Suit No. 41/2009 also did not remain and as the said Civil Suit was withdrawn and therefore, the Revenue Entries were bound to be mutated and retained in favour of the Purchasers­Petitioners on the basis of Registered Sale Deed. The land in question lies in Survey Nos.88/1 and 88/2 total admeasuring 29 Acres and 4 Gunthas of land situated at Village:Chubdak, Taluka:Bhuj and the seller of the said land in question was one Jashodaben @ Jahuben Karsanbhai

C/LPA/45/2013 JUDGMENT Dt.15.2.2021 STATE OF GUJARAT THRO' SECRETARY(APPEALS) & 3 other(s) Versus AJAY ASHOK SHARMA & 9 other(s)

Raghvani who sold the land to four petitioners by four different Registered Sale Deeds.

3. The State being aggrieved by the Order of learned Single Judge has filed the present Letters Patent Appeal and Mr.Utkarsh Sharma, learned Assistant Government Pleader for the State submitted that the issue of the Purchasers being not Agriculturists was not raised before the learned Single Judge and, therefore, the State should be left free to raise that issue before in any appropriate proceedings and the Order of learned Single Judge should not come in the way of such proceedings.

4. Learned counsel for the purchasers Mr.S.P.Majmudar opposed the submissions and submitted that no such issue was ever involved either before the learned Collector in Revisional Proceedings nor were raised before the learned Single Judge and therefore, the issue which is not raised before the learned Single Judge cannot be raised in Letters Patent Appeal filed by the State.

5. Having heard learned counsel for the parties, we are satisfied that no interference is called for in the Order of the learned Single Judge under appeal before us and the present Letters Patent Appeal is without any merit.

6. If an issue is not a subject matter either before the learned Singe Judge and there is no observation or finding given by learned Single Judge in the Order impugned before the Division Bench of this Court, there is no occasion for raising any such issue in the intra court appeal before us for the first time. The State cannot be permitted to get a clue to initiate

C/LPA/45/2013 JUDGMENT Dt.15.2.2021 STATE OF GUJARAT THRO' SECRETARY(APPEALS) & 3 other(s) Versus AJAY ASHOK SHARMA & 9 other(s)

some proceedings which was not initiated hither to or the law may not permit them to do so now, after the Registered Sale Deed executed in favour of the petitioners and who succeeded before the learned Single Judge in even getting the Mutation Entries recorded in their favour.

7. Nothing more is required to be stated while disposing of the present appeal filed by the State and to give them unnecessary scope or handle to initiate such proceedings. The appeal being otherwise devoid of merit is liable to be dismissed and the same is accordingly dismissed. Rule discharged. No costs.

(DR. VINEET KOTHARI,J)

(GITA GOPI,J) NAIR SMITA V.