Gujarat High Court

Patel Mootibhai Madhabhai vs State Of Gujarat on 25 January, 2021

Bench: Bhargav D. Karia

        C/SCA/18099/2015                                            JUDGMENT




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO. 18099 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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         PATEL MOOTIBHAI MADHABHAI
                    Versus
          STATE OF GUJARAT & 7 others
===================================
Appearance:
MR AMIT N CHAUDHARY(5599) for the Petitioner
MR. K.M. ANTANI, AGP (99) for the Respondent No. 1 to 4
DS AFF.NOT FILED (N)(11) for the Respondent Nos. 2, 3, 4, 8
MR R.K.MANSURI(3205) for the Respondent Nos. 5, 6, 7
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 25/01/2021

                              ORAL JUDGMENT

1. Heard learned advocate Mr. Amit N. Chaudhary for the

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petitioner, learned advocate Mr. R.K Mansuri for the respondent nos. 5, 6 and 7 and learned Assistant Government Pleader Mr. K.M. Antani for the respondents - State through video conference.

2. Learned advocate Mr. Amit Chaudhary has tendered the draft amendment on 27th November, 2015. It appears that the draft amendment is still not allowed. The draft amendment is allowed in terms of the draft by adding Gajaraben daughter of Sukhaji Ranaji as respondent no.9.

3. Learned advocate Mr. R.K. Mansuri, who appears for the respondent nos.5 to 7 states that he has instructions to appear on behalf of the newly joined respondent no.9 - Gajaraben daughter of Sukhaji Ranaji, therefore, there is no need to issue fresh notice to her. Mr. Mansuri, is permitted to file appearance for newly joined respondent no.9, if she is alive.

4. Rule returnable forthwith. Learned advocate Mr. R.K. Mansuri waives service of notice of rule on behalf of the respondent nos.5, 6, 7 and 9 and learned AGP Mr. K.M. Antani, waives service of notice of rule on behalf of the respondent nos.1 to 4 - State.

5. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the respective parties, the matter is takenup for hearing.

6. The petitioner has prayed for the following reliefs :

"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ order or direction and be pleased to quash and

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set aside impugned order dated 6th July 2015 passed by the Special Secretary in no.

MAVIVI/HAKAP/BANAS/42/2009 (Annexure A) and the order dated 11th November, 2009 passed by the Collector, Palanpur in no JAMIN 4/REVISION/CASE NO/63/2008 (Annexure B) and also order dated 16th December,2 006 passed by the Assistant Collector, Palanpur in RTS/APPEAL/7/2006 (Annexure C)

(B) During the pendency, admission and final disposal of this petition Your Lordships may be pleased to stay impugned order dated 6th July 2015 passed by the Special Secretary in no.

7. The brief facts of the case are as under :

7.1 The petitioner purchased the land bearing survey no. 294 admeasuring 1 acres and 2 gunthas situated at village Chandisar, Taluka Palanpur, District Banaskantha from Koli Hajurji Ranaji and

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Koli Dahyabhai Virchandji by registered sale deed dated 30.5.1995 for a consideration of Rs. 15,000/. It appears that Revenue Entry No.2310 was mutated in Village Form No.6 on 12.06.1995.

7.2 The land in question was originally in the joint name of Hajurrana, Sukharana and Veerchandrana. On demise of Veerchandrana and Sukharana, entry no. 2304 dated 17.04.1995 was mutated to bring the legal heirs and accordingly, name of Dahyabhai Veerchand was mutated as the legal heir of Veerchandrana and it was declared that Sukharana died without any issue. In view of entry no. 2304, Hajurrana and Dahyabhai Veerchand executed the aforesaid sale deed in favour of the petitioner.

7.3 It appears that Dadambenwidow of Sukharana and Hiraben, Gajraben and Raiben daughters of Sukharana preferred RTS Appeal challenging the entry no. 2304 and 2310 in the year 2006 before the Deputy Collector, Palanpur. The Deputy Collector, Palanpur by order dated 16.12.2006 allowed the RTS Appeal quashing entry nos. 2304 and 2310 and remanded the matter back to the Mamlatdar, Palanpur.

7.4 The petitioner preferred Revision Application No. 63/2008 challenging the order passed by the Deputy Collector before the Collector, Palanpur who by order dated 11.11.2009 rejected the revision application of the petitioner.

7.5 The petitioner therefore, challenged the order passed by the

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Collector before the Special Secretary, Revenue Department (Appeals) [For short "SSRD"]. SSRD granted interim relief to the petitioner during the pendency of the revision application and thereafter, by order dated 6.7.2015 dismissed the revision application of the petitioner confirming the order passed by the Collector and the Deputy Collector.

7.6 The petitioner has therefore, preferred this petition challenging all the three orders passed by the authorities below.

8. Learned advocate Mr. Chaudhary states that the petitioner is a bonafide purchaser of the land in question by registered sale deed and therefore, as per the settled legal position, the Entry no.2310, which is mutated in favour of the petitioner could not have been cancelled by the Deputy Collector while exercising the power under Section 211 of the Gujarat Land Revenue Code, 1879 (for short 'the Code, 1879').

9. The learned advocate Mr. Chaudhary would submit that the respondent nos.5 to 7 and 9 have filed Regular Civil Suit no.91 of 2010 in the Court of Senior Civil Judge, Palanpur for cancellation of sale deed executed in favour of the petitioner and the said suit is pending and therefore, the Revenue Authority should be directed to give effect of the outcome of the civil proceedings pending between the parties.

10. On the other hand, learned advocate Mr. Mansuri appearing for the respondent nos.5 to 7 and 9 submitted that the respondent nos.5 to 7 and 9 are legal heirs of Sukhaji Ranaji. The entry no.2304 was passed by the Revenue Authorities considering that

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there is no legal heir of late Sukhaji Ranaji though the respondent nos.5 to 7 and 9 are the legal heirs and accordingly the Deputy Collector has rightly rejected the entry no.2304 dated 17th April, 1995. It was submitted by Mr. Mansuri that within the period of one month from the date of the Entry no.2304 dated 17th April, 1995, Hajurji Ranaji and Dahyabhai Virchand Rana have executed the sale deed on 2nd June, 1995 in favour of the petitioner. It was submitted that the petitioner, as well as, Koli Hajurji Ranaji and Koli Dahya Virchand are having collusion and therefore, the Deputy Collector has rightly rejected both the Entry nos.2304 and 2310.

11. Having considered the rival submissions and having gone though the materials, it appears that the Deputy Collector has taken into consideration the fact that the respondent nos.5 to 7 and 9 are the legal heirs of late Sukhaji Ranaji, cancelled the entry no.2304 and consequently cancelled the entry no.2310. However, Revenue Authority ought to have considered that there is a registered sale deed in favor of the petitioner and civil disputes are pending by way of Regular Civil Suit no.91 of 2010 and therefore, it was required to be observed and held that the parties should be governed by the outcome of the civil dispute between them and the Revenue Entry would be subject to outcome of the civil proceedings between the parties.

12. It was also pointedout by the learned advocates for both the sides that the civil Court has passed an order not to transfer the land in question during the pendency of the suit while passing the order Exh.5 under Order39 Rule1 and 2 of the Civil Procedure Code, 1908.

13. In view of the settled legal position, the civil proceedings will

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govern the Revenue Entries. The authorities are hereby directed to give effect of outcome of the pending Regular Civil Suit no.91 of 2020 between the parties.

14. With the aforesaid observation, there is no need to interfere in the impugned order as the parties are directed to be governed by the outcome of the civil suit and accordingly the petition is disposed of. Rule is discharged. No order as to costs. The interim relief stands vacated forthwith.

(BHARGAV D. KARIA, J.) AMAR RATHOD...