Nirmalaben @ Nilaben Ratnasinh ... vs State Of Gujarat Through The ...
2021 Latest Caselaw 3148 Guj

         C/SCA/13092/2018                                        JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 13092 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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    NIRMALABEN @ NILABEN RATNASINH CHAUHAN W/O TAKHATSINH
                       DANSINH THAKORE
                            Versus
       STATE OF GUJARAT THROUGH THE SECRETARY & 4 other(s)
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Appearance:
MR. JAY M THAKKAR(6677) for the Petitioner(s) No. 1
MR K.M.ANTANI, AGP for the Respondent(s) No. 1,2,3,4
MR ASPI M KAPADIA(1865) for the Respondent(s) No. 5
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    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                 Date : 24/02/2021

                                 ORAL JUDGMENT

Heard learned advocate Mr.Jay Thakkar for the petitioner, learned Assistant Government Pleader Mr.K.M.Antani for the respondents­State and learned

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advocate Mr.Aspi Kapadia for the respondent No.5 through video conference.

1. Rule, returnable forthwith. Learned advocate Mr.Aspi Kapadia waives service of notice of rule on behalf of the respondent No.2 and learned Assistant Government Pleader Mr.K.M.Antani waives service of notice of rule on behalf of the respondents­State through video conference.

2. Having regard to the controversy in the narrow compass, with the consent of the learned advocates appearing for the respective parties, the matter is taken up for hearing.

3. The petitioner has challenged the order passed by the Revenue Authorities whereby, the entry no.4862 dated 22nd April, 2016 in connection with the sale­deed no.157 registered on 16th March, 2016 executed in favour of the petitioner was cancelled. It is the case of the petitioner that the petitioner purchased the land ad­ measuring 29,863 Sq.Mtrs of Survey No.1098 and land ad­ measuring 8093 of Survey No.1175 situated at Village: Vandarvela, Taluka : Vasda, District : Navsari.

4. On registration of the sale­deed the petitioner applied for mutation of entry, however, respondent No.5 objected to such mutation of entry on the ground that the respondent has instituted Special Civil Suit No.54 of 2014 praying for specific performance of the agreement for sale in the Court of Principal Senior Civil Judge, Navsari against the original land owners with respect to

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land ad­measuring 28,952 Sq.Mtrs of Block / Survey No.1098 on the ground that there was an agreement for sale in favour of the respondent No.5 and the respondent No.5 was in possession of the land in question.

5. The Mamlatdar allowed the objection by order dated 31st May, 2016 and did not certify the entry no.4862 in favour of the petitioner. The petitioner therefore, preferred RTS Appeal No.56 of 2016 before the Deputy Collector which was also rejected by the Deputy Collector vide order dated 20th April, 2017.

6. Being aggrieved and dis­satisfied by the order of Deputy Collector, the petitioner preferred Revision Application before the Collector which was also rejected vide order dated 18th September, 2017. The petitioner therefore, filed Revision Application No.11 of 2018 before the Special Secretary (Appeal), Revenue Department (for short 'the SSRD') which was also rejected by the order dated 22nd June, 2018. The petitioner therefore, has approached filed this petition with the following prayers:

"A)YOUR LORDSHIP may be pleased to admit and allow the present Special Civil Application.

B) YOURLORDSHIP may be pleased to issue appropriate writ, order or direction and thereby quash and set aside the order dated 31.05.2016 passed in No.JMN / RTS / Case No.18 / 2016 by Mamlatdar, Vansda (Annecure ­ 'A'); Order dated 20.04.2017 passed in No.RTS / APPeal / Vashi.595 / Case No.56 / 2016 by Deputy Collector, Vansda (Annexure ­ 'B'); Order dated 18.09.2017 passed in No.CH / RTS / Revision / Case No. 66 / 2017 Vashi. 5835 / 17 by Collector, Navsari (Annexure­'C') and order dated 22.06.2018 passed in no. MVV / HKP / NVS / 11 / 2018 by Secretary, Revenue Department (Appeal), Ahmedabad (Annexure­'D'), and thereby be pleased to allow & certify mutation entry no.4862 dated

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22.04.2016 in favor of petitioner, in the interest of justice;

C) PENDING THE HEARING AND FINAL DISPOSAL OF THIS APPLICATION, be pleased to stay the operation, implementation and effect of theorder dated 31.05.2016 passed in No.JMN / RTS / Case No.18 / 2016 by Mamlatdar, Vansda (Annexure­'A'); Order dated 20.04.2017 passed in No.RTS / Appeal / Vashi. 595 /Case No.56 / 2016 by Deputy Collector, Vansda (Annexure­'B'); Order dated 18.09.2017 passed in No. CH / RTS / Revision / Case No.66 / 2017 Vashi. 5831 to 5835 / 17 by Collector, Navsari (Annexure ­ 'C') and order dated 22.06.2018 passed in no.MVV / HKP / NVS / 11 / 2018 by Secretary, Revenue Department (Appeal), Ahmedabad (Annexure ­ 'D') and thereby be pleased to continue the operation of mutation entry no.4862, in the interest of justice;

D) YOUR LORDSHIP may be pleased to grant any other and further relief(s) as may be deems fit and proper, in the interest of justice."

7. Learned advocate Mr.Thakkar submitted that as per the settled legal position the respondents­Revenue Authorities were supposed to pass a mutation entry recording the registered sale­deed executed in favour of the petitioner. Learned advocate Mr.Thakkar relied upon the following case laws in support of his submissions :

"1. Bhikhubhai Naranji Desai (decd.) by heirs V. Chhotubhai Ranchhodji Desai (Decd.) by heirs & Ors., 2017 (4) GLR 3083.

2. Pagi Aataji Kacharaji V. State of Gujarat & anr., 2011 (2) GLR 1449.

3. Rajnder Singh V. State of Jammu & Kashmir & Oors., (2008) 9 SCC 368.

4. Suraj Bhan & Ors. V. Financial Commissioner & Ors. (2007) 6 SCC 186.

5. Gandabhai Dalpatbhai Patel V. State of Gujarat & Ors., 2005 (2) GLR 1370."

8. Learned advocate Mr.Thakkar however, submitted that the mutation entry of registered sale­deed in favour of the petitioner is required to be passed subject to out

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come of the Special Civil Suit No.54 of 2014.

9. On the other hand learned advocate Mr.Kapadia submitted that the respondent­authorities have rightly not certified the entries and by concurrent findings have approved the decision of the Mamlatdar for not certifying the entry no.4862 in view of the pendency of the Special Civil Suit No.54 of 2014 filed by the respondent No.5 for specific performance. Learned advocate Mr.Kapadia submitted that as per Sub­section 8 of Section 135(D) of the Gujarat Land Revenue Code, 1879 (for short 'the Code, 1879') the Revenue Authorities were justified in not certifying the entry as the respondent No.5 has preferred the Special Civil Suit No.54 of 2014 invoking Section 53(A) of the Transfer of Property Act, 1882 which provides for part performance. Learned advocate Mr.Kapadia invited the attention of the Court to the averments made in the plaint annexed with the affidavit in reply to point out that the entire suit is based on the fact of part performance under Section 53(A) of the Transfer of Property Act, 1882. He relied upon the following averments made in the affidavit­in­reply which reads thus :

"2. At the outset it is submitted that all four lower authorities, ie. Mamlatdar, Deputy Collector, Collectorand Special Secretary, Revenue Department (Appeals) (for short 'SSRD'), all have concurrently decided against the petitioner. The SCA seeks to challenge all four orders passed by the said authorities. It is submitted that the impugned orders are legal and proper. The orders provide that the revenue entry will be subject to the outcome of the Civil Suit filed by me in the Civil Court. Hence, no prejudice is caused to the petitioner. SCA does not warrant interference of this Hon'ble Court under the extraordinary jurisdiction under Article 226 of the Constitution of India.

3. It is submitted that the property in question i.e. Block

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No. 1098, Survey Nos. 784/1 and Survey No. 787 of Villege Vandervela, Taluka Vansda, Dist. Navsari was agreed to be sold by the owner of the said land Mr. Rushi Behramji Saher, to me. in the February, 1979 and January, 1986.Survey Nos. 784/1 was agreed to be sold in the month of February, 1979. The total agreed sale consideration of Rs. 10,001/was been paid by me at that time. The possession of the said land was also handed over to me. I am in possession of the said land since then, till date. Survey No. 787 was agreed to be sold on or around 31.01.1986. The total agreed sale consideration of Re. 28,000/for the said land was been paid by me at that time. The possession of the said land was also handed over to me. I am in possession of the said land since then,tilldate.

4. On account of good relations between the parties, the execution, of the sale deed was not insisted. After some time, Mr. Rusi Behramji Saher had shifted to Hyderabad. Subsequently, I came to know that Mr. Rusi Saher had expired. I contacted the heirs of Mr. Rusi Saher and they had assured me that they would execute the sale deed.

5. However, on 22.07.2014, a public notice came to be issued in respect of the intention to sell the said lands. I immediately contacted the heirs of Mr, Rusi Saher. However, they refused to co­operate and execute the sale deed in my favour. I therefore, immediately filed a suit for specific performance in the Civil Court at Navsari against the heirs of Mr. Rusi Saher, being Special Civil Suit No. 54 of 2014. The plaint of the said suit is annexed hereto as Annexure ­ A. I had also got the lis pendens notice dated 02.08.2014 (copy at Annexure ~ B hereto) registered in respect of the said suit.

6. It is submitted that I am in possession of the said lands. Since the agreement to sell. My possession is in part performance of the agreement to sell. I am entitled to protection under section 63 A of the Transfer of Property Act, 1882. I have constructed a residential house on the said lands and am residing therein with my family since last many years. I am also carrying out agricultural activities, including growing sugarcane on the said lands. I have also constructed a bore well in the said land. The house constructed by me on the said lands ie registered with the gram panchayat.

7. in the aforesaid suit, the Hon'ble Civil Court had appointed a Court Commissioner and in his report (Copy at Annexure ­ C hereto), my possession has been recorded. Further, on the application under section 145 of the Cr. P. C.,by the order dated 05.02.2015, my possession has been upheld by the Magistrate. Against the said order, the Criminal Revision Application No. 28 of 2016, preferred by the petitioner, came to be rejected vide order dated 19.04.2017. However, the petitioner has preferred a Special Criminal Application before this Hon'ble Court and by ex­parte order dated 07.11.2017, the aforesaid orders have been stayed. Despite having knowledge that I was in possession of the said lands in part performance of the agreement to sell, and despite the lis pendens notice, the petitioner, fraudulently and in connivance with the heirs of the deceased Mr.

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Rusi Saher, during the pendency of the suit, got a sale deed dated 05.09.2014 in respect of the said lands, executed. The said sale deed was registered belatedly on 16.03.2016.

8. In the aforesaid civil suit, the petitioner has been impleaded as a defendant after the execution of the sale deed in her favour. The relief for setting aside her sale deed is also sought.

9. In respect of the said sale deed, a provisional entry no. 4862 was made on 22.04.2016. Upon objections, the Mamlatdar, by his order dated 31.05.2016, declined to certify the entry and the entry was cancelled. Being aggrieved, the petitioner filed appeals/revisions to the Deputy Collector, Collector and SSRD. All the authorities have been pleased to dismiss the appeals/revisions preferred by the petitioner. The authorities have held that the entry in the revenue records shall be subject to the final outcome of the aforesaid civil suit filed by me.

10. It is explicit that the sale deed in favour of the plaintiff is fraudulent and got executed simply with oblique motives to defeat and frustrate my proprietary rights. The petitioner is not a bona fide transferee without notice. As the seller is paid the full sale consideration and possession is also handed over, till the execution of the sale deed, the seller would hold the property in trust for the purchaser. Thus, he would have no right to sell off the property to any third person. It is well established that fraud Vitiates all actions. Thus, the sale deed executed in favour of the petitioner is null and void."

10. Relying upon the aforesaid averments learned advocate Mr.Kapadia vehemently submitted that no interference is required to be made in the concurrent findings given by the authorities below for not certifying the entry no.4862 in view of the pendency of the Principal Special Civil Suit No.54 of 2014 before the Court of Senior Civil Judge at Navsari.

11. Learned Assistant Government Pleader Mr.Antani submitted that in view of the concurrent findings of fact, no interference should be made while exercising extra­ordinary jurisdiction under Article 227 of the Constitution of India.

           C/SCA/13092/2018                                                   JUDGMENT




12.     Having         heard        the       learned           advocates          for        the

respective parties and having gone through the materials on record, it is not in dispute that there is registered sale­deed executed in favour of the petitioner by the original owners of the land in question who are not party before this Court.

13. It is also not in dispute that the respondent No.5 has filed a Suit for specific performance in the year 2014 against the original land owners in view of the provisions of Section 53(A) of the Transfer of Property Act, 1882. According to the respondent No.5, there was a pert performance and therefore, under Sub­section 8 of Section 135(D) of the Code 1879, the respondent­ Authorities have rightly not certified the entry of mutation of registered sale­deed in favour of the petitioner.

14. In order to appreciate and analyze the above submissions made by both the sides, it would be germane to refer to the various provisions of the relevant Acts as under :

(1) Section 135 (C) of the Gujarat Land Revenue Code, 1879 :

"135C. Any person acquiring the right on any land by succession, survivorship, inheritance, partition, purchase, mortagage, gift, 8[lease or Certificate of No Dues made under sub-section (2) and (3) of section 125L and section 133(2), or otherwise] any right as holder, occupant,owner, mortagagee, assignee of the rent thereof, shall make a report of such acquisition of such right, either manually or electronically, to the designated officer within the period of three months from the date of such acquisition, and the said designated officer shall at once, give a written acknowledgment of the receipt of such report to the person making it :

Provided that where the person acquiring the right is a minor, or otherwise disqualified, his guardian or other person, having charge of his property, shall make the report to the designated officer :

Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the designated officer :

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Explanation I.--The rights mentioned above include a mortgage without possession, but do not include an easement or a charge not amounting to a mortagage of the kind specified in section 100 of the Transfer of Property Act, 1882. Explanation II.-A person in whose favour a mortgage is discharged or extinguished, or lease determines, acquires a right within the meaning of this section."

(2) Section 135(D) of the Gujarat Land Revenue Code, 1879 :

"(1) (a) The designated office shall enter, manually or electronically by the automated process, in a register of mutations, every report made to him under section 135C or any intimation of acquisition or transfer of any right on land made to him, either manually or electronically under section 135C from the Mamlatdar, or a court of law.

b) (i) When a claim or document of right is produced before the designated office, he shall, through bio-metric ID or any other mode as may be prescribed, verify the identity and the lawful rights of the transferor and the transferee.

(ii) Upon completion of verification, the necessary entries shall be made in the register of mutations in the manner as may be prescribed and the notice of the transaction under section 135D shall be served to the persons interested therein.

(2) Whenever a designated office makes an entry, either manually or electronically in the register of mutations, he shall at the same time intimate to all persons appearing from the record of rights or register of mutations to be interested in themutation and to any other person whom he has reason to believe to be interested therein in the manner as may be prescribed.

(3) It shall be the duty of the designated officer to enter the particulars of the objection if any received from any person either manually or electronically, in a register of disputed cases and to give written acknowledgment of the receipt of such objection to the person making it in the same manner.

(4) Orders disposing of objections entered in the register of disputed cases shall be recorded, either manually or electronically, in the register of mutations, after disposing it within the period as may be prescribed for this purpose and the same may be intimated to the concerned person having interest in the said mutation.

(5) Where no objection is raised by any person having interest in the transaction, either manually or electronically, within a period of thirty days, the mutation entry shall be certified electronically through an automated process or manually, as the case may be.

(6 ) The transfer of entries from the register of mutations to the record of rights shall be effected subject to such rules as may be made by the State Government in this behalf : Provided that an entry in the register of mutations shall not be transferred to the record of right until such entry has been duly certified.

(7) In the event, where the automated process of certification of entries has not been initiated, the entries in the register of mutations shall be verified and if found correct or after correction shall be certified in the Mutation Register, within a period as may be prescribed, by a Revenue Officer not below the rank of a Deputy Mamlatdar, and the same may be intimated to the concerned person having interest therein.

(8) Where the certitying officer has a reason to believe that such mutation entry violates or contravenes any of the provisions of the Act or any other Act, he shall not certify such entry and shall intimate the same with reasons in writing to the person concerned.

(9) The provisions of this section shall apply in respect of perpetual tenancies and also in espect of any tenancies mentioned in a notification under sub-section (2) of section 135B but

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the provisions of this section shall not apply in respect of other tenancies, which shall be entered in a register of tenancies, in such manner and under such procedure as may be prescribed."

(3) Section 53(A) of the Transfer of the Property Act, 1882:

"53A. Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

15. In view of the above, it would be fruitful to refer to the various decisions relied upon by the petitioner in this regard :

"1. Bhikhubhai Naranji Desai (decd.) by heirs V. Chhotubhai Ranchhodji Desai (Decd.) by heirs & Ors., 2017 (4) GLR 3083­

"8. As rightly submitted by Mr.Mehta, the revenue entries are made only for fiscal purpose and the Revenue Authorities have no jurisdiction to decide about the civil rights of the parties. A beneficial reference of the judgement of this Court in the case of Gandabhai Dalpatbhai Patel (supra) be made in this regard, wherein it has been held as under:­

"9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with RTS proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Hon'ble Supreme Court in the case of State of Gujarat VS. Patel Raghav Natha AIR 1969 SC Page 1297 and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal

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Solanki 1996( 2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in 1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathabhai Meraman Darji (Supra) that when a document of registered sale deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.

10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors. vs. Collector, Rajkot and Ors., reported in 2003(1) GLH 30, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Section 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Section 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court."

8.1. In view of the afore­stated legal position, it is required to be held that the respondent SSRD has committed error in assuming the jurisdiction of Civil Court and in deciding the civil rights of the parties in the RTS proceedings. It is also pertinent to note that as per Section 135C of the Land Revenue Code, any person acquiring the right on any land by succession, survivorship, or otherwise, is required to report to the designated authority, however, if any person acquires the right by virtue of a registered document, he is exempted from the obligation of reporting to the designated officer. As per the settled legal position, the revenue authority is required to go by the documents i.e. the registered sale deed produced before it and give effect in the revenue entry. It can not decide the question of title in the revenue proceedings. In the instant case, the deceased Bhikhubhai Naranji Desai, the predecessor of the petitioners having purchased the land in question by way of registered sale deed, it was obligatory on the part of the concerned authority to mutate his name in the revenue record. If Chhotubhai had any objection against such sale made by Manchhaben, Widow of Dahyabhai, he should have approached the Civil Court, Challenging the validity of the sale deed, as rightly observed by the Collector in his order dated 16.11.1994. Admittedly no such civil proceedings have been initiated by the said Chhotubhai or after his death, by his heirs. Hence, the respondent SSRD could not have examined the validity of the said sale deed in the RTS proceedings and could not have directed to cancel the Entry No.621."

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2. Pagi Aataji Kacharaji V. State of Gujarat & anr., 2011 (2) GLR 1449­

"28. Time and again this Court has reminded the revenue authorities that in RTS proceedings disputed questions of title are not to be adjudicated. If any issue with regard to right, title and interest is raised, it is for the civil courts to decide such rights and give a declaration. In spite of this settled position of law, time and again revenue authorities are committing the same mistake knowingly or unknowingly. We deem it fit and proper to once again explain the entire process of law so that the authorities would bear in mind and would not commit the same mistake. It is necessary to make a brief reference to the statutory provisions having a bearing on the controversy involved in these appeals which pertains to what is popularly known as RTS proceedings.

34.In Janardan D Patel vs. State of Gujarat, 36 (1) GLR 50, this Court considered the scheme of the aforesaid provisions and held that the revenue authorities exercising powers with respect to RTS proceedings are invested with limited powers. They cannot assume to themselves certain powers not conferred on them by law nor can assume jurisdiction not conferred on it by law and that in that view of the matter, it has no power to decide the validity of a transaction on the touchstone of a statutory provision occurring in some other enactment. If any such question arises, the matter should be referred to the authority empowered to deal with under the said other enactment. In such situation, the correct procedure to be followed would be to refer the matter to the authority empowered under the other Act for its decision. The necessary mutation entry may be made only after the decision of that authority under the other Act is received. It would, however not be open to the revenue authorities in RTS proceedings to decide that question.

35. In State of Gujarat vs. Patel Raghav Natha, AIR 1969 SC 1297, the Apex Court has made the following observations in para 14 of the judgment :­

"14. We are also of the opinion that the Commissioner (exercising the revisional power under Section 211 of the Bombay Land Revenue Code) should not have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate course for the Collector or the Commissioner would be to refer the parties to a competent court and not to decide the question of title himself against the occupant."

36.In Evergreen Apartment Co­op. Housing Society vs. Special Secretary, Revenue Department, 1991(1) GLR 113, a learned Single Judge of this Court has held that in the proceedings under Rule

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108 of the Bombay Land Revenue Rules, the revenue authorities cannot independently pass orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed.

37.In Ratilal Chunilal Solanki vs. Shantilal Chunilal Solanki, 1996 (2) GLR 525, this Court again examined this issue and laid down as under :­

"It cannot be gainsaid that, when a dispute as to the title to the properties mentioned in the revenue records arises, the parties have to go to the competent Civil Court for resolution of their such dispute. They cannot convert the mutation proceedings under Chapter 8A of the Code into a battle­field for the purpose. The revenue authorities are incompetent to decide the disputed question of title to any property mentioned in any revenue record."

38.It is very clear that the scope of Rule 108 of the Rule of 1972 is to deal with the entries made in the record of rights and dispute regarding legality of such entries. Mutation entries do not create any title to the property since such entries are only enable the State for collection of tax. The right, title and interest as to the proper should be established independently of the entries. It is settled law that one cannot be divested of his legal title merely by virtue of mutation entries and one cannot be conferred a legal title merely by virtue of positing of mutation entries."

3. Rajnder Singh V. State of Jammu & Kashmir & Oors., (2008) 9 SCC 368­

"17. It is well settled that revenue records confer no title on the party. It has been recently held by this Court in Suraj Bhan v. Financial Commr. that such entries are relevant only for "fiscal purpose" and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings.

18. It is clear from the record that grievance of Respondent 2 daughter, related to mutation entry. If the authorities under the Tenancy Act felt that the action was in consonance with law, it could have retained the entry. The inquiry, however, was limited to the entry in the revenue records and nothing more. It had no bearing whatsoever as to the right of ownership, inheritance or title to the property. In our opinion, therefore, neither the authorities under the Tenancy Act nor the High Court could have entered into the question of ownership, title or inheritance in

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the present proceedings and they ought to have decided the controversy limited to mutation entry in the revenue records."

4. Suraj Bhan & Ors. V. Financial Commissioner & Ors. (2007) 6 SCC 186­

"8. So far as mutation is concerned, it is clear that entry has been made and mutation has been effected in revenue records by the Vahsildar on the basis of an application made by Respondent 5 herein and his name has been entered in record­of­rights on the basis of the will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of Respondent 5 in revenue records, any illegality had been committed by the Tahsildar. It is true that no notice was issued to the appellants but the Tahsildar had taken the action on the basis of will said to have been executed by deceased Ratni Devi in favour of Respondent 5. The said order has been confirmed by the Collector as also by the Financial Commissioner. When the grievance was made against the said action by filing a writ petition, the High Court also confirmed all the orders passed by the Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned.

9. There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in revenue records does not confer title on a person whose name appears in record­of­rights. It is settled law that entries in the revenue records of jamabandi have only "fiscal purpose" i.c. payment of land revenue, and no Ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh). As already noted earlier, civil proceedings in regard to genuineness of will are pending with the High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."

5. Gandabhai Dalpatbhai Patel V. State of Gujarat & Ors., 2005 (2) GLR 1370­

"8. Heard, the learned Advocates appearing on behalf of the parties. So far as the contention on behalf of the petitioner and the proposition of law laid down in the judgment reported in AIR 4992 Bom. 149 is concerned, there is no dispute with regard to said proposition of law. The only question is whether such an enquiry is required to be conducted by Mamlatdar in an R.T.S. proceeding or not. The questions in relation to genuineness of Power of Attorney and/or authority, and whether the Power of Attorney holder can execute the sale deed or not, are the questions which are required to be considered by a Civil Court and not in an R.T.S. proceeding while mutating necessary entry in the record of rights which is only made for fiscal purpose and

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which does not confer any right, title or interest in favour of a person in whose favour entry is made. As held by the Honble Supreme Court in the case of Sawarni (Smt.) v Inder Kaur (Smt.) & Ors., reported in 1996 (6) SCC 223, and in the case of Sankalchand Jayantilal Patel (supra), record of rights and mutation entries are only one of the modes of proof of enjoyment of the property and such entries do not create any right, title or interest in property. It is required to be noted that the case before the Honble Supreme Court in the case of Sankalchand Patel (supra) was also relating to the provisions of Bombay Land Revenue Code and the Apex Court was dealing with Sec. 135 of the Code. Even it is the consistent practice and view of this Court as held in catena of judgments that the entries in the record of rights do not confer any right, title or interest in the property and that they are only for the fiscal purposes for collection and payment of revenue.

9. It is the consistent view taken by this Court in catena of judgments that the revenue authorities while dealing with R.T.S. proceedings had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to title the parties are to be relegated to the Civil Court. As held by the Honble Supreme Court in the case of State of Gujarat v. Patel Raghav Natha, AIR 1969 SC 1297 : 1969 GLR 992 (SC) and judgment of this Court in the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki, 1996 (2) GLR 525 and Siddharth B.. Shah v. State of Gujarat, reported in 1999 (3) GLR 2527, the revenue authorities cannot decide the disputed question of title to the property and they have to merely go by the documents produced before them. Even this Court has held in the case of Nathubhai Meraman Darji (supra) that when a document of registered sale­deed is produced before the authority, the revenue authorities are bound to give effect to the same and are not required to decide the question of title.

10. Even this Court in a recent judgment in the case of L.Rs. of Popat Khima Ramani & Ors. v. Collector, Rajkot & Ors., reported in 2003 (1) GLH 30 : 2002 (3) GLR 2256, has considered the scope of revenue authorities while deciding the question with regard to mutation entry and the powers under Sec. 135 and Rule 108, has held that revenue authorities are not to decide the question about title and the revenue authorities are to make necessary entries on the basis of decision of Civil Court. It is further held in the said judgment that the revenue authorities are invested with limited powers under Sec. 135 and they cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of Civil Court. The revenue authorities cannot decide validity of transaction on touchstone of statutory provision occurring in some enactment and that they cannot decide disputed question of title. In fact, this Court has gone to the extent that when a dispute as to the title arises the parties have to go to the competent Civil Court. In the present case, in fact the Civil Suit is pending between the parties and the Civil Court is to decide all these questions which are raised by the petitioner in the present Special Civil Application with regard to validity of the Power of Attorney, the genuineness of sale­deed, and the authority of Power of Attorney­holder on the

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basis of the power of Attorney. Considering the fact that the suit is pending between the parties and that the petitioner has challenged the legality and validity of the sale­deed before the Civil Court and that there is an injunction in the said suit, in fact the Secretary (Appeals) has tried to strike the balance and has tried to protect the interests of all the parties by directing that the factum of injunction granted by the Civil Court should also be noted in the entry and that the entry in favour of respondent No. 5 would be subject to the ultimate outcome of the suit pending between the parties in which the legality and validity of the sale­deed is challenged. It cannot be said that there is any illegality committed by the Secretary (Appeals). On the contrary, the judgment and order passed by the revisional authority, i.e. Secretary (Appeals) is in consonance with the provisions of Sec. 135 of the Bombay Land Revenue Code and Rule 108 of the Gujarat Land Revenue Rules and the view taken by the Honble Supreme Court as well as this Court with regard to the powers of revenue authorities while dealing with the question of mutation entries. The revenue authorities are not required to consider with regard to the genuineness of the sale­deed, the powers and authority of the Power of Attorney­holder under the Power of Attorney and the question with regard to the title. What is required to be done by the Suo­Registrar at the time when the sale­deed was executed cannot be permitted to be done by the Mamlatdar and/or revenue authorities while deciding the question with regard to Mutation entry, more particularly the entry in the record of rights is only having a presumptive value and only for a fiscal purpose of recovering and payment of revenue and it does not confer any right, title or interest in favour of any party in the property."

16. In view of the settled legal position and dictum of law, the revenue authorities were not justified in not certifying the entry no.4862 in favour of the petitioner. However, such entry no.4862 ought to have been certified with a rider that such entry is mutated subject to out­ come of the Special Civil Suit No.54 of 2014 pending in the Court of Principal Senior Civil Judge, Navsari.

17. In view of the foregoing reasons, the petition is allowed in part. The Revenue Authorities are directed to mutate the entry of sale­deed dated 22nd April, 2016 at Sr.No. 4862 in village Form No.6 with qualification rider that such entry is subject to out­come of Special Civil Suit No.54 of 2014 pending in the Court of Principal

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Senior Civil Judge, Navsari with respect to the land ad­ mearsuing 28,952 Sq.Mtrs of Survey / Block No.1098 so that the petitioner or any other third party may not take advantage of such mutation entry as such entry is subject to out­come of Special Civil Suit No.54 of 2014 pertaining to the land ad­measuring 28,952 of the Survey / Block No.1098. Rule is made absolute to the aforesaid extent. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK