Gujarat High Court
Bharwad Jogabhai Arjanbhai vs State Of Gujarat on 25 February, 2021
Bench: Bhargav D. Karia
C/SCA/19175/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19175 of 2015
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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BHARWAD JOGABHAI ARJANBHAI
Versus
STATE OF GUJARAT & 17 other(s)
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Appearance:
D H BHARWAD(7394) for the Petitioner(s) No. 1
MR.SUBHASH G BAROT(2619) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
MR MJ MEHTA(5797) for the Respondent(s) No. 16,17,18
MR. HARDEEP L MAHIDA(7112) for the Respondent(s) No. 16,17,18
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 11,11.3,12,13,14
NOTICE SERVED(4) for the Respondent(s) No.
10,11.1,11.2,11.3.1,11.3.2,11.3.3,11.3.4,11.4,11.5,12.1,13.1,13.2,13.3,13.4,1
4.1,15,16,17,18,2,3,4,5,6,7,8,9
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/02/2021
ORAL JUDGMENT
Heard learned advocate Mr.Subhash Barot for the
petitioner and learned Assistant Government Pleader
Mr.Ishan Joshi for the respondentState through video
conference.
C/SCA/19175/2015 JUDGMENT
1. Rule, returnable forthwith. Learned Assistant
Government Pleader Mr.Ishan Joshi, learned advocate
Mr.M.J.Mehta and learned advocate Mr.Hardeep Mahida
waives service of notice of rule for and on behalf of the
respective respondents.
2. Having regard to the controversy in narrow compass,
with the consent of the learned advocates for the
respective parties, the matter is taken up for hearing.
3. By this petition under Article 227 of the
Constitution of India, the petitioner has prayed for the
following reliefs :
"(A) Be pleased to admit and allow present petition;
(B) Be pleased to issue writ of mandamus or writ in the nature of mandamus or any other
appropriate writ or direction for quashing and setting aside the order dated 31.8.2015
passed by respondent No.3 herein in Revision Application filed by the petitioner being
HKP-KHAD-2-2007 and further be pleased to restore Revenue Entry No.1090 mutated in
revenue records on the basis of registered sale deed for sale of piece of land bearing
Survey / Block No.309 of Mouje: Palaiya, Taluka: Thasra, District: Kheda;
(C) Pending hearing and final disposal of this petition, be pleased to stay the execution,
implementation and operation of the order dated 31.8.2015 passed by respondent No.3
herein in Revision Application filed by the petitioner being HKP-KHAD-2-2007;
(D) Be pleased to pass such other and further relief in the interest of justice."
4. Brief facts of the case are as under :
4.1. The land bearing Block No.309 of Mouje: Palaiya,
Taluka: Thasra, District: Kheda, admeasuring 4 acres 55
Guthas 86 Are was owned by respondents No. 4 to 15
herein. The respondents No. 4 to 14 herein appointed
C/SCA/19175/2015 JUDGMENT
respondent No. 15 Solanki Juvansinh Magansinh as their
Power of Attorney by deed dated 13.6.2001 for
administration of abovementioned land bearing Block
No.308 and Block No.309 of Mouje: Palaiya.
4.2. In the year 2001 when respondents No. 4 to 14 herein
executed power of attorney in favour of respondent No. 15
Solanki Juvansinh Maganbhai, abovementioned land
bearing Block No.308 and Block No.309 of Mouje: Palaiya
was under the mortgage. It is the case of the petitioner
that the details of amount and names of mortgagee are as
under:
Sr.No. Block No. Name of Mortgagee Amount (Rs.)
1. 309 Solanki Punabhai Nanabhai 64,700
2. 309 Dabhi Mohanbhai Prabhatbhai 42,100
3. 309 Dabhi Jugabhai Somabhai 31,000
4. 308 Solanki Bharabhai Raisangbhai 28,700
5. 308 Solanki Bhagubhai Raisangbhai 42,800
4.3. Abovementioned mortgagees executed one deed on
28.4.2001 and released said mortgage after obtaining
amount as reflected in abovementioned table. It is the
case of the petitioner that on behalf of respondents No.
4 to 15, their power of attorney respondent No. 15
Solanki Juvansinh Maganbhai has paid the amount of
mortgage to respective mortgagees and has signed the
document of release of mortgage.
4.4 After payment of mortgage amount to mortgagees, the
land bearing Block No.308 and Block No.309 of Mouje:
Palaiya, Taluka: Thasra was marketable and in ownership
of respondents No. 4 to 15.
C/SCA/19175/2015 JUDGMENT
4.5 The land bearing Block No.308 and Block No.309 of
Mouje: Palaiya, Taluka: Thasra was originally new tenure
land and necessary permission under the Bombay Tenancy
and Agricultural Lands Act, 1948 was obtained. It is the
case of the petitioner that necessary permission was
asked from the competent officer and by order dated
29.6.2001, Deputy Collector was pleased to grant
permission to sell the land.
4.6 After making the land marketable and after obtaining
necessary permission under the Bombay Tenancy and
Agricultural Lands Act, 1948, respondents No. 4 to 15
herein executed registered sale deed for land bearing
Block No.309 of Mouje: Palaiya, Taluka: Thasra in favour
of the petitioner for a consideration amounting to
Rs.4,11,000/.
4.7 Another Block No.308 of Mouje: Pajaiya, Taluka:
Thasra was sold by respondents No. 4 to 10 herein in
favour of one Nagjibhai Jagmalbhai Bharwad.
4.8 After execution of registered sale deed in favour
of the petitioner, Revenue Entry No.1090 was mutated in
revenue record of Mouje: Palaiya, Taluka: Thasra,
District: Kneda on the basis of registered sale deed and
the name of the petitioner was mutated in Block No.309 of
Mouje: Palaiya, Taluka: Thasra.
4.9 Respondents No.16, 17 and 18 herein who are not at
all connected with the abovementioned land bearing Block
No.308 and Block No.309 of Mouje: Palaiya, Taluka: Thasra
raised objections against the mutation of Entry No.1090
C/SCA/19175/2015 JUDGMENT
whereby the name of the petitioner was inserted in
revenue records of land bearing Block No.309 of Mouje:
Palaiya, Taluka: Thasra, District: Kneda. It is the case
of the petitioner that on raising objection by
respondents No.16, 17 and 18 herein, Takrari Case
No.21/01 was registered. By order dated 6.2.2002 in
Takrari Case No.21/01, Mamlatdar ordered to cancel
Revenue Entry No.1090 mutated in revenue records on the
basis of the registered sale deed whereby the name of
the petitioner was inserted in the revenue records as
owner of Block No.309.
4.10 It is the case of the petitioner that as per the
case of respondents No.16, 17, and 18, they are the heirs
of Koyabhai Alambha in whose favour the land was allotted
under the Bombay Tenancy and Agricultural Lands Act,
1948. It is the case of the petitioner that
simultaneously, respondents No.16, 17 and 18 herein were
also claiming that they are tenants in Block No.309 of
Mou: Paiarya,Taluka: Thasra, District: Kheda.
4.11 The petitioner challenged order dated 06.02.2002
passed by Mamlatdar in Takrari Case No.21/01 cancelling
Revenue Entry No.1090 by filing appeal before Deputy
Collector, Nadiad. The Deputy Collector, Nadiad dismissed
appeal filed by the petitioner being RTS/Appeal
No.51/2004 by order dated 18.4.2006.
4.12 Order passed by the Deputy Collector in RTS/Appeal
No.51/2004 dated 18.4.2006 was challenged by the
petitioner by filing Revision Application being
RTS/RA/65/0506 and by order dated 18.10.2006, Collector,
Kheda dismissed the revision application filed by the
C/SCA/19175/2015 JUDGMENT
petitioner.
4.13 Being aggrieved and dissatisfied by the order passed
by the Collector in RTS/RA/65/0506, the petitioner
preferred Revision Application under Rule 108(6)(a) of
the Gujarat Land Revenue Rules before the Special
Secretary (Appeais), Revenue Department (for short
'SSRD') which was registered as HKPKHAD22007.
4.14 It is the case of the petitioner that the SSRD
issued notice and the respondents No.16, 17 and 18 herein
appeared before the SSRD through their advocate and filed
reply to the application filed by the petitioner. The
respondents No. 4 to 15 herein who are the owners of the
land bearing Block No.309 of Mouje: Palaiya, Taluka:
Thasra, did not appear before the SSRD and did not file
any reply to the application filed by the petitioner.
4.15 The SSRD dismissed the revision application filed by
the petitioner vide order dated 31.8.2015 on the ground
that various civil litigations are pending between the
parties and as authorities below have observed that the
final decision of Civil Court would follow Revenue Entry
No.1090. The SSRD further observed that power of attorney
deed is not registered with the District Court and
necessary orders are not obtained.
4.16 Respondents No. 16, 17 and 18 preferred Special
Civil Suit No.127 of 2001 before the learned 6th
Additional Senior Civil Judge, Court at Nadiad against
respondents No. 4 to 15, petitioner and prayed for
cancellation of registered sale deed dated 30.6.2001
executed by Juvansinh Maganbhai Solanki in capacity of
C/SCA/19175/2015 JUDGMENT
power of attorney holder of respondents No. 4 to 14 and
for himself herein in favour of the petitioner. It is the
case of the petitioner that after adjudication of Special
Civil Suit No.127 of 2001, the learned 6th Additional
Senior Civil Judge, Court at Nadiad was pleased to
dismiss the suit by order dated 15.5.2009.
4.17 Another suit being Civil Suit No 46 of 2001 was
filed by respondents No.16, 17 and 18 and Bharatbhai
Raisingbhai Solanki & Bhagubhai Raisingbhai Solanki and
prayed that the defendants in the said suit are having no
right, title over Survey Nos. 308 and 309 of Mowe:
Palaiya, Taluka. Thasra, District: Kheda and has further
prayed that they are in possession of the property since
last 25 years and the defendants of said suit are having
no right to restrain them from entering in the said land.
It is the case of the petitioner that the said suit was
filed on 28.6.2001. It is the case of the petitioner that
the petitioner was joined as defendant No.1 in said suit.
It is the case of the petitioner that the petitioner
being defendant in the said suit along with other three
persons filed written statement to the said suit.
4.18 During the proceedings before the learned Civil
Judge, Court at Dakor in Civil Suit No.46 of 2001, the
plaintiff of said suit (including respondents No.16, 17
and 18) submitted one purshis on 18.12.2006 and has
withdrawn said suit unconditionally. Considering the said
purshis passed by the plaintiffs, the learned Civil Judge
and Judicial Magistrate (First Class), Dakor at Thasra on
3.9.2007 has passed the order and permitted the
plaintiffs to withdraw said suit unconditionally. It is
the case of the petitioner that the defendants were
C/SCA/19175/2015 JUDGMENT
allowed to continue with their counterclaim in
accordance with the Code of Civil Procedure.
4.19 In the impugned order dated 31.8.2015 passed by the
SSRD it is mentioned that the proceeding under section
84(c) of the Bombay Tenancy and Agricultural Lands Act,
1948 is pending. It is the case of the petitioner that
while making such observation, the SSRD has not verified
that those proceedings are not under section 84(c) of the
Bombay Tenancy and Agricultural Lands Act, 1948 but are
under section 43 for breach of tenancy condition. It is
the case of the petitioner that those proceedings are
already over and respondents No. 16, 17 and 18 have lost
their case before the learned Agricultural Land Tribunal.
It is the case of the petitioner that said tenancy case
was numbered as 50/2001 which has been decided on
30.7.2003. It is the case of the petitioner that these
facts are reflected in 7/12 form of Survey No.309.
4.20 As the petitioner is in possession of the land
bearing Survey No.309 of Mouje: Palaiya, Taluka: Thasra,
District: Kheda since the date of purchase, the
petitioner has made an application before Mamlatdar for
appropriate entry in the revenue records. It is the case
of the petitioner that the said application was
registered before Mamlatdar as Case No.13/2002 in which
Mamiatdar has passed order in favour of the petitioner
and on the basis of said order, Entry No.1174 has been
mutated in revenue records and name of the petitioner is
mutated in revenue records as agriculturist and the Entry
No.1174 has remained unchallenged till date.
5. Learned advocate Mr.Barot submitted that the
C/SCA/19175/2015 JUDGMENT
additional affidavit of the petitioner dated 3rd February,
2021 pointing out that in the impugned orders the
authorities have relied upon the pending Civil
Proceedings between the parties and now the Civil
Proceedings are over and no litigation in the Civil Court
between the petitioner and respondent No.4 to 18 is
pending. Along with the affidavit of the petitioner, copy
of the judgment and decree dated 15.05.2009 passed in the
Special Civil Suit No.127 of 2001 which is dismissed on
merits is also placed on record. It was therefore
submitted by learned advocate Mr.Barot that the impugned
order, in which the reference was made by the SSRD that
the Civil Suit No.127 of 2001 is pending in the Civil
Court at Thasra, but the same is also dismissed by the
concerned Court on 23rd September, 2014 and the Special
Civil Suit No.46 of 2001 filed by the respondent Nos.16
to 18 is already withdrawn and the Cross Objection filed
by the petitioner was also disposed of by order dated 23 rd
September, 2014.
6. In view of the above facts, the impugned orders
passed by the respondent authorities are required to be
quashed and set aside with a direction to the respondent
authority to certify the entry No.1090 with regard to the
sale transaction in favour of the petitioner for land ad
measuring 11 Acres and 25 Gunthas of Block No.309 of
Village:Palaiya, Taluka:Thasra, District:Kheda.
7. In view of the fact that no civil proceedings are
pending in any Civil Court against the registered sale
deed executed in favour of the petitioner, the petition
C/SCA/19175/2015 JUDGMENT
is accordingly allowed. The order dated 31.08.2015 passed
by the respondent No.3 in Revision Application being HKP
KHAD22007, order dated 18.10.2006 passed by the
respondent No.2Collector, Kheda in RTS/65/0506 and
order dated 06.02.2002 passed by the Mamlatdar in Takrari
Case No.21/01 are hereby quashed and set aside with a
direction to the respondentMamlatdar to certify the
entry No.1090 mutating the registered saledeed dated
13.06.2001 in favour of the petitioner.
8. Rule is made absolute to the aforesaid extent. No
orders as to cost.
(BHARGAV D. KARIA, J)
PALAK
