Chhaganbhai Durlabhbhai vs Jayantibhai Balubhai Ahir
2021 Latest Caselaw 17678 Guj

    C/LPA/748/2018                             ORDER DATED: 24/11/2021



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/LETTERS PATENT APPEAL NO. 748 of 2018
                                In
           R/SPECIAL CIVIL APPLICATION NO. 9054 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                                 In
            R/LETTERS PATENT APPEAL NO. 748 of 2018
                               With
      CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
                                 In
            R/LETTERS PATENT APPEAL NO. 748 of 2018
                               With
            R/LETTERS PATENT APPEAL NO. 554 of 2021
                                 In
            SPECIAL CIVIL APPLICATION NO. 9054 of 2015
                               With
            CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
                                 In
            R/LETTERS PATENT APPEAL NO. 554 of 2021
                                 In
            SPECIAL CIVIL APPLICATION NO. 9054 of 2015
================================================================
                 CHHAGANBHAI DURLABHBHAI & 2 other(s)
                                Versus
                 JAYANTIBHAI BALUBHAI AHIR & 1 other(s)
================================================================
Appearance:
MR HARSHEEL D SHUKLA(6158) for the Appellant(s) No.
1,2.1,2.2,2.3,2.4,3.1,3.2,3.3,3.4
MR MEHUL SHARAD SHAH(773), SENIOR COUNSEL for the Appellant(s)
No. 2,3,4
MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 2
MR PERCY KAVINA, SENIOR COUNSEL with MR SATYAM Y
AppCHHAYA(3242) for the Respondent(s) No. 1
================================================================

 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                      Date : 24/11/2021
                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This intra-Court Appeal lays challenge to the order dated

C/LPA/748/2018 ORDER DATED: 24/11/2021

07.03.2018 passed in Special Civil Application No.9054/2015 where under Special Civil Applications filed by the respondents came to be allowed and order dated 28.06.2013 passed by the Additional Secretary, Revenue Department (Appeals) came to be quashed / set aside.

2. Few facts necessary for disposal of this appeal are :- The land bearing Survey No.239/1 of Dumas Ta Choriyasi was said to have been owned by one Shri. Durlabhbhai Chhidiyabhai namely father of the appellant herein. An entry came to be made in respect of the said land in Entry No.3152 on 29.06.1992 at the behest of the petitioner on the strength of the Will said to have been executed by the said person in favour of the petitioner in the year 1985. The said entry continued till the year 2000, the Collector in exercise of suo motu power cancelled the said entry and petitioner filed a revision / appeal before the SSRD unsuccessfully. Being aggrieved by the said order, a Special Civil Application No.9054/2015 was filed which came to be allowed on two grounds namely i) on the ground of delay in exercising suo-motto power, and ii) the entry which subsisted for eight years was not challenged or disputed. Hence this Appeal.

C/LPA/748/2018 ORDER DATED: 24/11/2021

3. We have heard learned Senior Counsel Mr. Mehul Sharad Shah appearing for the appellants and learned Senior Counsel Mr. Percy Kavina appearing for the respondents. It is the contention of learned Senior Counsel appearing for the appellants that authorities could not have passed the order mutating the revenue records on the strength of the Will which is in serious dispute and there was no justification for the said authorities to have mutated the records on the strength of the said Will. It is also contended that Will is of the year 1985 and the entry came to be made after five years for which no explanation was coming from the impugned orders and as such, the order of the learned single Judge is liable to be set aside. The contention raised before the learned single Judge is reiterated in this appeal.

4. Per contra, the learned Senior Counsel appearing for the respondent would support the impugned order and prays for dismissal of the Appeal contending inter-alia that for a period of eight years, i.e. from 1992 to 2000, petitioners did not challenge the said entry and suo motto powers had been exercised after a long lapse of eight years, which was found to be without any explanation by the learned single Judge and impugned orders had been rightly interfered and as such, has prayed for dismissal of this Appeal.

C/LPA/748/2018 ORDER DATED: 24/11/2021

5. Having heard the learned Senior Counsels appearing for the parties and having perused the records, we notice that at the first instance that undisputably, the entries that came to be made was on the basis of a purported Will said to have been executed by the father of the appellants in favour of petitioner. Based on the said Will, the revenue entry has been made on 29.06.1992. Till the exercise of power in the year 2000 by the Collector, the appellants did not challenge the said entry. Be that as it may. Even before the revisional authority, a statement is said to have been made by the appellants herein to the effect they have no objection for such entry being made and they are admitting the contents of the Will (vide Annexure 'B'). However, this finding or observation of the revisional authority is seriously disputed by the appellants herein. Any examination or scrutiny of the said contention in this proceedings will definitely prejudice the rights of the parties, inasmuch as in respect of the subject property, there is a Regular Civil Suit No.110/2016 pending on the file of the learned Senior Civil Judge, Surat, which has been filed by the original petitioner for declaration and injunction. In the said suit, an order of status-quo has been passed on 27.07.2019 where under both parties have been directed to maintain status-quo with regard to the property in

C/LPA/748/2018 ORDER DATED: 24/11/2021

dispute namely the suit schedule property. It is trite law that any entry made in a revenue records do not confer any title. In the instant case, when the parties are at lis before the Civil Court in Regular Civil Suit No.110/2016, necessarily the parties would be bound by the order / judgment that would be passed therein and authorities are necessarily required to mutate the revenue record based on such decree that would be passed by the competent civil Court. As such, we are not inclined to entertain this Appeal and observing that entry made in the revenue records would be subject to result of the Suit and there being an order of the civil Court to the effect that the parties are to co-operate in disposing of the Suit expeditiously, we refrain from expressing any opinion on merits and would only reiterate that Suit which is pending shall be expeditiously disposed of by the jurisdictional Court, subject to both parties co-operating and trial Court would be at liberty to regulate the proceedings by putting the parties on such terms it deems fit for expeditious disposal of the Suit.

6. With the aforesaid observations, and making it clear that no opinion is expressed on merits including the purported Will which has not seen the light of the day and reserving liberty to both the parties to urge all contentions, this Appeal stands disposed of. In view of

C/LPA/748/2018 ORDER DATED: 24/11/2021

Letters Patent Appeal No.748/2018 being disposed of, Letters Patent Appeal No.554/2021 does not survive for consideration. All pending Civil Applications in both Letters Patent Appeals stand consigned to the record.

7. Civil Application No.1/2021 in Letters Patent Appeal No.748/2018 is allowed. The legal representatives of the deceased appellant 2/4 is allowed and they are ordered to be brought on record. Civil Application No.1/2021 in Letters Patent Appeal No.748/2018 is allowed accordingly.

Sd/-

(ARAVIND KUMAR, CJ)

Sd/-

(ASHUTOSH J. SHASTRI, J) CAROLINE