Smita Amrutlal Dani vs State Of Gujarat
2021 Latest Caselaw 6942 Guj

     C/SCA/4577/2018                                JUDGMENT DATED: 25/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4577 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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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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                          SMITA AMRUTLAL DANI
                                 Versus
                       STATE OF GUJARAT & 6 other(s)
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Appearance:
MR MONAAL J DAVAWALA(6514) for the Petitioner(s) No. 1
MR BHARAT VYAS, AGP for the Respondent(s) No. 1,2,3,4,5,6
SHRINEEL M SHAH(9374) for the Respondent(s) No. 7
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    CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
                      Date: 25/06/2021
                     ORAL JUDGMENT

1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for setting aside the order dated 25.09.2017 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as 'the SSRD'); the order dated 27.10.2014 passed by the District Collector, Ahmedabad; and the order dated 28.10.2013 of the Deputy Collector, Sanand by which the order dated 10.8.2011 of the mamlatdar, cancelling the entry no.24519 dated 13.04.2011, was confirmed.

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2. The facts of the case are, as under:

2.1 The petitioner, in the year 2007-2008, showed her interest in purchasing the land bearing survey no.1932/2, admeasuring 11,534 sq.mtrs situated at Sanand, Ahmedabad (hereinafter referred to as the 'land in question') and accordingly, executed a sale-deed. Apropos which, the petitioner applied for mutation of her name in the revenue record. The entry no.21336 dated 21.03.2018, came to be mutate, however, the same was not certified by the Mamlatdar vide order dated 15.06.2008 on the ground that supporting documents of petitioner being an agriculturist are not produced.

2.2 It is, thereafter, certain documents were provided and entry no.23735 dated 31.08.2010, came to be mutated in the village form no.VI; however, the same came to be cancelled on 23.11.2010, considering the existing entry in the column of other rights. Thereafter, another entry no.24519 dated 13.04.2011, came to be mutated in the revenue record, which was not certified by the Mamlatdar on the ground that there is a mortgage recorded in the column of "other rights" and there were some discrepancies in the revenue record.

2.3 The petitioner, being aggrieved, preferred an appeal before the Deputy Collector, Sanand. In the appeal, it was the case of the petitioner that there is no such information available in 7/12 form in the column of other rights as regards the mortgage; however, the details of the mortgager were recorded in the 7/12 form on 17.08.2011. Further, the Deputy Mamlatdar has used contradictory endorsements such as "cancelled" and "certified", which are illegal. So far as the aspect of mortgage in the column of "other rights" is concerned, it has been stated that the land belonged to one Jiitabhai Sendhabhai, who has mortgaged his land before 74 years; however, the owner of the land did not get the mortgage released within the time limit and therefore, the right of the

C/SCA/4577/2018 JUDGMENT DATED: 25/06/2021

erstwhile owner stood extinguished. Moreover, Nabibhai Dadbhai had purchased the land and thereafter the Respondent No. 7, that is, Devendrasinh Chhatrasinh Vaghela and one another purchased the land from Nabibhai Dadbhai and from Respondent No.7 it is the petitioner who has purchased the land.

2.4 The Deputy Collector held that no steps have been taken for removal of the mortgage, as the name of the mortgager still exists in the revenue record, and the appeal came to be rejected by the Deputy Collector vide order dated 28.10.2013. The order of the Deputy Collector was challenged before the District Collector, who, vide order dated 27.10.2014 dismissed the revision. The order of the Collector was challenged before the SSRD, who, while grating stay was prima facie of the opinion that the order is defective considering the facts namely, (i) entry no.9285 dated 15.10.1965 was certified on the basis of registered sale-deed; (ii) the land was sold again, for which, entry no.15311 dated 26.03.1993 was mutated and certified and (iii) entry no.24519, which was recorded on the basis registered sale-deed, has been rejected on the ground of endorsement of mortgage in the column of "other rights".

2.5 The SSRD, after hearing the parties, has passed the order dated 25.09.2017, rejecting the revision. The aspect of recording of mortgaged in the column of "other rights", weighed with the SSRD. All the three authorities had observed that though the entry has been mutated based on registered mortgage deed; however, registered deed releasing the mortgage is not executed. Since the transaction was inconsistent with the record, the entry was not certified. Being aggrieved, the petitioner has filed the captioned petition with the afore- mentioned prayers.

3. Reply has been filed only by the respondent no.7. While supporting the case of the petitioner, contention is raised that almost

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after a period of 35 years, on 10.02.1993, Nabibhai Dadbhai sold the land to Chatrasinh vide registered sale-deed no.196 and accordingly the names of the respondent no.7 - the deponent and his father, namely, Chatrasinh were mutated in the revenue record by entry no.15311. Subsequently, Chatrasinh released his right in favour of respondent no.7, he, being his son, which fact is recorded in the revenue record vide entry no.16045, certified on 14.11.1994, that is, how the respondent no.7 has become the sole owner of the land in question. It has been further stated that respondent no.7 has executed a registered sale-deed in favour of the petitioner and has received full consideration for the sale of land. It has also been stated that the peaceful and vacant possession has been handed over to the petitioner, in full awareness and in good state of mind, without any coercion or misrepresentation or influence from anyone.

4. Mr. Monaal Davawala, learned advocate appearing for the petitioner has submitted that the authorities below, without appreciating the evidence on record, has straightaway concluded that there was a mortgage in the column of other rights, however, what has been lost sight of, by the authorities below is the fact that the land initially belonged to one Mansukhlal Hathisinh and Hathisinh Gonvindji and they had mortgaged the land in question, executing a mortgage deed dated 18.10.1939, in favour of one Sagar Gachha Committee which fact has been recorded vide entry no.4225. It is submitted that since the mortgage deed was executed with possession, Sagar Gachha Committee after obtaining necessary permission dated 21.01.1964 from the Charity Commissioner sold the land in favour of Nabibhai Dadbhai. Pursuant to the sale-deed, name of Nabibhai Dadbhai was mutated in the revenue record vide entry no.9285 dated 15.06.1964.

4.1 While inviting the attention of this Court to entry no.9285 dated 15.06.1964, it is submitted that it clearly reflects about the permission of

C/SCA/4577/2018 JUDGMENT DATED: 25/06/2021

the Joint Charity Commissioner dated 21.01.1964 and therefore it cannot be said that any mortgage continued over the land in question. Further, the mortgage deed was with possession giving all the rights to the Sagar Gachha Committee to deal with the land. It is submitted that the entry no.9285 was mutated in the revenue record after following due procedure and even during the stage of issuance of notice under Section 135 of Gujarat Land Revenue Code 1879 (hereinafter referred to as 'the Code'), no objection or any dispute was ever raised by the mortgager.

4.2 It is further submitted that thereafter, in the year 1993, Nabibhai Dadabhai sold the land to Chhatrasinh Vaghela and Devendrasinh Chhatrasinh Vaghela, by executing sale-deed, followed by mutation of the entry no.15311 dated 26.03.1993 in the revenue record, and no objection, worth the name, was raised by anybody. It is submitted that as is clear from the covenants in the sale-deed, executed between Nabibhai Dadbhai and the respondent no.7, they clearly reflect about the aspects namely, permission of the Charity Commissioner; sale of land in favour of Nabibhai Dadbhai; Nabibhai Dadbhai having acquired ownership and he in possession and cultivating the land in question.

4.3 It is submitted that thereafter, the land in question was purchased by the petitioner from respondent no.7. Accordingly, the petitioner has applied for mutation of the entry based on sale-deed executed between herself and respondent no.7. The entry no.23735 dated 31.08.2010, was mutated in the revenue record; however, the office of the Mamlatdar on 23.11.2010, considering the note in the column of "other rights", has rejected the entry. Once again, entry no.24519 was mutated in the revenue record on 13.04.2011, the same was also rejected on the ground of the mortgage recorded in the column of "other rights". It is submitted that owing to the discrepancy, the entry no.24519 dated 13.04.2011, carried two endorsements, i.e., "cancelled" and "certified".

       C/SCA/4577/2018                                     JUDGMENT DATED: 25/06/2021



4.4     It is further submitted that when the rights were crystallized in

favour of the Nabibhai Dadbhai in the year 1964 and thereafter, in favour of respondent no.7 in the year 1993, there was no cause available to the respondent authorities, not to have accepted the execution of the sale-deed in favour of the petitioner and simply rejecting it on the ground that in the column of other rights, there is an endorsement of land being mortgaged. It is submitted that therefore, if at all there is any remark or endorsement in the column of other right, it is, owing to the mistake on the part of the authorities in not removing the same.

4.5 It is submitted that the Deputy Collector, while rejecting the appeal of the petitioner has misinterpreted the entry no.9285 mutated in the revenue record in favour of Nabibhai Dadbhai. It ought to have been appreciated that when the entry was mutated in the revenue record, no objection was raised by the mortgagors. Similarly, the Collector while not entertaining the appeal has adopted the reasons which, are vague so also the SSRD. It is therefore urged, that the orders passed by the authorities below namely the Deputy Collector, Collector and SSRD, are not in conformity with the documents available on record and therefore they deserve to be quashed and set aside.

5. On the other hand, Mr.Bharat Vyas, learned Assistant Government Pleader appearing for the respondent-authorities, has submitted that no error can be said to have been committed either by the Deputy Collector in passing the order dated 28.10.2013 so also the Collector by passing the order dated 27.10.2014 and also order dated 25.09.2017 by the SSRD. It is submitted that though the entry no.9285, has been mutated in the revenue record, in absence of any documents and steps taken for removal of the mortgage, it cannot be said that the authorities concerned have committed any illegality in passing the orders and not approving the entry in favour of the petitioner. It is

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therefore urged that the orders having been passed in conformity with the documents available on record, the same do not deserve to be interfered with.

6. Mr. Vaibhav Goswami, learned advocate for Mr. Shrineel M. Shah, learned advocate for the respondent no.7, while supporting the case of the petitioner, submitted that Nabibhai Dadbhai has purchased the land in question and entry no.9285 came to be mutated in the revenue record and if, the 7/12 forms are viewed, it does not reflect any entry of mortgage in the column of other rights. It is further submitted that almost after a period of 35 years Nabibhai Dadbhai, had sold the land in favour of respondent no.7 vide registered sale-deed dated 10.02.1993, apropos which, entry no.15311 came to be mutated in the revenue record. It is submitted that for all the 78 years, neither the mortgagors nor their heirs have raised any objections against the entries mutated in the revenue record or the sale-deed executed in favour of Nabibhai Dadbhai in first instance and respondent no.7 in the second and lastly in favour of the petitioner. It is submitted that the orders passed by the respondent authorities, are not in the right earnest and considering the transactions, which have been entered into between the parties, the petition deserves to be allowed and the entry in favour of the petitioner be directed to be mutated.

7. Heard Mr.Monaal Davawala, learned advocate for the petitioner, Mr.Bharat Vyas, learned Assistant Government Pleader for the respondent nos. 1 to 6 and Mr.Vaibhav Goswami, learned advocate for the respondent no.7.

8. The facts have already been recorded in the preceding paragraphs however, brief mention is necessitated at this stage. Mansukhlal Hatthisinh and Hatthisinh Gonvindji had borrowed an amount of Rs.600/- from Sagar Gachha Committee by mortgaging land

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in question and accordingly, the said transaction was recorded in revenue record by entry 4225. As is evident from the record and not disputed by the State Government, prior to the year 1957 the land in question was in the possession of the Nabibhai Dadbhai and he was paying the land revenue to the State Government. With a view to seeing that in future there are no complications as regards the land in question, Sagar Gachha Committee, on 28.7.1957, through its members and administrator and after obtaining necessary permission from the office of the Charity Commissioner, sold the land with mortgage in favour of Nabibhai Dadbhai. Consequently, on 15.06.1964 entry no.9285 was mutated in the revenue record, followed by certification.

9. After almost 35 years, Nabibhai Dadbhai executed a registered sale-deed dated 10.02.1993 in favour of respondent no.7 and one another. Apropos which entry no.15311 has been mutated in the village form no.VI, in favour of the respondent no.7 and his father. It is, thereafter, the respondent no.7 executed a registered sale-deed no.1553 dated 21.03.2007 in favour of the petitioner after receiving full consideration. In the first instance when the petitioner applied for mutation the same was rejected on the ground of insufficient evidence as agriculturist. Later, the petitioner, with all the relevant documents, applied to the Mamlatdar for mutation of the entry, the Mamlatdar on 23.11.2010, rejected the same considering endorsement in the column of "other rights". In the interregnum some correction entry no. 21830 was mutated in the revenue record. Once again, the petitioner applied, to the Deputy Mamlatdar, Sanand, who on 10.08.2011 cancelled the entry no.24519; the reason, which weighed with the Mamlatdar, Sanand cancelling the entry, was, the endorsement of mortgage in the column of "other rights".

10. The petitioner being aggrieved has preferred an appeal to the Deputy Collector who did not entertain the same on the ground that

C/SCA/4577/2018 JUDGMENT DATED: 25/06/2021

there is no entry by which the mortgage has been removed and therefore as of today, the mortgage still exists over the land in question. In the appeal before the Collector, he also did not accept the say of the petitioner and the respondent no.7 and held that considering the evidence, the record still carries the name of the mortgagors based on registered mortgage deed, however, no steps appear to have been taken for release of the mortgage by executing any registered document. It is further observed that in absence of any documents substantiating the fact that mortgage is removed, the name in the column of "other rights" cannot be deleted. The SSRD, also while rejecting the revision application has adopted the findings of the Collector with an additional observation to the effect that owing to the inconsistency in the documents, the entry cannot be mutated. SSRD has observed that since there are discrepancies, in the documents, it will be open to the parties concerned, to take out legal proceedings and get the name deleted. The revision application of the petitioner came to be rejected vide order dated 25.09.2017.

11. Pertinently, the authorities below ought to have appreciated that the Sagar Gachha Committee in whose favour the mortgaged deed was executed with possession, after taking necessary approval from the office of the Charity Commissioner, sold the land in favour of Nabibhai Dadbhai against the consideration of Rs.600, which fact is recorded vide entry no.9285, dated 15.02.1964 followed by the certification. Perceptibly, neither any objection was raised by the mortgagors against the entry no.9285, nor has it been ever challenged by them. Nabibhai Dadbhai was in possession of the land in question for more than three decades and thereafter, almost after a period of 35 years, Nabibhai Dadbhai sold the land in favour of respondent no.7, vide registered sale-deed no.196 dated 10.02.1993 and consequently one another entry no.15311 came to be mutated in the revenue record. The said

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entry, has also not been challenged either by the mortgagors or for that matter by their heirs, and has remained unchallenged. Therefore, the first entry 9285 dated 15.02.1964 so also entry no.15311 were mutated in succession, without there being any objection by any of the mortgagors or by their heirs. Under the circumstances, the authorities below were not justified in rejecting the application for mutation of the entry only on the ground that in the column of "other rights", the endorsement of mortgage exist.

12. Further, the respondent no.7 thereafter sold the land in favour of the petitioner by executing the registered sale-deed dated 21.03.2007. When objection has been raised by the Deputy Mamlatdar that owing to the entry in the column of other rights, recording mortgage, the entry cannot be mutated. Orders, passed by all the authorities concerned, do not appear to be in the right earnest inasmuch as, the Deputy Mamlatdar, ought to have considered the entry no.9285 in its right perspective. When the mortgage deed, was executed in favour of Sagar Gachha Committee, with possession and it after taking approval of the Charity Commissioner, executed the sale-deed in favour of Nabibhai Dadbhai, there was no reason available to the Deputy Mamlatdar, to have raised an objection of the endorsement of the mortgage in the column of "other rights". Clearly, except mentioning that there is an endorsement in the column of the other rights, neither of the authorities have taken care to verify the aspects of the subsequent purchases; mutation of entries in succession without there being any objection raised by anybody and challenge to such transactions. A bare perusal of the contents of the order of the Deputy Collector, reflects that he, has only considered entry no.4252 of the year 1939; however, has failed to consider the subsequent transactions entered and executed between the parties and resultant mutation of entries in the revenue record. Also, the land in question, have changed hands, initially from Sagar Gachha

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Committee to Nabibhai Dadabhai in the year 1964 and thereafter from Nabibhai Dadbhai in favour of respondent no.7 in the year 1993. Despite there being a change of ownership, there was no reason available to the Deputy Mamlatdar, and the authorities to observe that there still exists the mortgage which observations are too far-fetched.

13. As discussed herein above, the authorities below, have lost sight of the fact that the mutation of the entry no.9285 was never challenged so also the mutation entry no.15311, recording the transaction in favour of the respondent no.7. In absence of any challenge to any of the entries dated 9285 as well as 15311, even if there is an endorsement in the column of other rights, the same does not have any efficacy inasmuch as, the land in question was ordered to be transferred in favour of Nabibhai Dadbhai in view of the consideration of Rs.600/- way back in the year 1964. Before the authorities, the mortgagors were very much a party; however, it is apparent that they have not raised any objection much less entering their appearance. The authorities below, except raising objection of the endorsement in the column of other rights, have not examined the documents in depth and straight away rejected the mutation of the entry on the flimsy ground that the mortgage still exists and that the same has not been removed or cancelled by executing the registered deed, releasing the mortgage. Mr.Davawala, learned advocate is justified in contending that when the mortgagors have not taken any steps or action, for all these years, for release of the land in question from the mortgage, their rights would stand extinguished.

14. Under the circumstances, the ground on which, the orders have been passed rejecting the mutation of the entry, are not in consonance with the record and irrelevant considerations have weighed with the authorities below and therefore, all the orders, that is, of the Deputy Collector dated 28.10.2013, order dated 27.10.2014 passed by the

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Collector and so also the order dated 25.09.2017 passed by the SSRD deserve to be quashed and set aside and are hereby quashed and set aside. The Deputy Mamlatdar concerned, is directed to forthwith mutate the entry in the name of the petitioner with respect to the land in question i.e., land bearing survey no.1932/2, situated at Sanand, Ahmedabad.

Rule is made absolute. No order as to costs.

(SANGEETA K. VISHEN,J) URIL RANA