Gujarat High Court

Dohsing Amarsing Thakor vs State Of Gujarat on 4 October, 2021

Bench: Nikhil S. Kariel

    C/SCA/14704/2021                                  ORDER DATED: 04/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 14704 of 2021

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                       DOHSING AMARSING THAKOR
                                Versus
                          STATE OF GUJARAT
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Appearance:

MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3,4,5,6,7,8
for the Respondent(s) No. 2,3,4,5,6
MR HARDIK MEHTA, AGP for Respondent No.1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1

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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 04/10/2021

                               ORAL ORDER

1. Learned Advocate Mr.Nishit Gandhi moves a proposed draft

amendment and seeks permission to place on record the Registered Sale

Deeds dated 3.5.2000 and 13.8.2012, a copy of the plaint of Regular

Civil Suit No.35 of 2013 along with order dated 21.4.2015 and a copy of

Regular Civil Suit No.67 of 2013.

2. Permission as sought for is granted.

3. Heard learned Advocate Mr.Nishit Gandhi on behalf of the petitioners

and learned AGP Mr.Hardik Mehta on behalf of the official respondents.

4. By way of this petition, the petitioners challenge an order passed by the

C/SCA/14704/2021 ORDER DATED: 04/10/2021

Revisional Authority dated 16.4.2019 in Revision Application

No.MVV/KHP/BNS/118/2018 confirming the order passed by the

District Collector, Banaskantha in B/Jamin-4/Remand Case No.29/2016

dated 29.9.2018.

5. Learned Advocate Mr.Gandhi would submit that the issue involved in

the present petition is with regard to an entry being Entry No.1461

mutated in the Revenue Record. Learned Advocate Mr.Gandhi would

submit that the petitioners had sold out only one parcel of land

admeasuring approximately 5 acres to the private respondents and

whereas the entry with regard to the same came to be mutated in the

Revenue Record as Entry No.885. Learned Advocate Mr.Gandhi would

submit that approximately 10 years after the said entry had been mutated

and in spite of intervening circumstances, the private respondents had

approached the Mamlatdar for correction of the said entry inter alia

contending that the Registered Sale Deed between the petitioners and

the private respondents dated 13.8.2012 states about an area of land

admeasuring 15 acres 27 gunthas having purchased by private

respondents from the petitioners, yet at the relevant point of time, on

account of mistake, the area of land purchased was mentioned as 5 acres

only. Learned Advocate Mr.Gandhi would further submit that the

Mamlatdar, without even considering the dispute raised by the present

petitioners against such correction in the Revenue Record had, accepting

the contentions of the private respondents, certified Entry No.1461 in

C/SCA/14704/2021 ORDER DATED: 04/10/2021

the Revenue Record.

6. It appears that the said certification had been challenged and the matter

had reached up to the Revisional Authority who had initially remanded

the matter back to the District Collector and whereas, since the order of

District Collector, Banskantha being against the present petitioners, the

present petitioners had preferred the Revision Application in which the

impugned order had been passed.

7. Learned Advocate Mr.Gandhi would submit that by permitting

certification of Entry No.1461, the Revenue Authorities had repealed

their own decision which is not permissible. Mr.Gandhi has also relied

upon a complaint preferred by the petitioners against the subsequent

purchasers of the land in question. Learned Advocate Mr.Gandhi has

also relied upon an affidavit filed by the subsequent purchaser who, it

appears, had stated that the purchase from the private respondents in the

present petition was only for the purpose of creating a third party right.

Learned Advocate would further submit that having regard to the

circumstances of the case, it was incumbent upon the Revenue Authority

to set aside the Entry No.1461. Learned Advocate Mr.Gandhi would

further submit that even the purchasers i.e. the private respondents

herein had preferred a Civil Suit being Regular Civil Suit No.35 of 2013

for being declared as owners of the entire parcel of land and whereas the

said suit has been dismissed for non-prosecution and the same is not

C/SCA/14704/2021 ORDER DATED: 04/10/2021

restored yet.

8. As against the same, learned AGP Mr.Mehta would submit that

essentially the petitioners were attempting to have their civil right

adjudicated by the Revenue Authorities. Learned AGP would submit

that from the record it is clear that the petitioners had sold and the

private respondents had purchased an area of approximately 15.27 acres

of land by way of Registered Sale Deed. Such position had continued

for a pretty long time till the private respondents had come for

correction of the area of land in the Revenue Record which had resulted

in the disputed Entry No.1461 being certified by the Mamlatdar.

Learned AGP Mr.Mehta would further submit that whether the

petitioners had sold only a part of the land and not the entire land,

whether any of the parties had given any implied or express concession,

or whether the purchasers of the land were trying to take undue

advantage etc., all such issues would be required to be gone into by a

competent Civil Court and whereas, as decided by this Court on a

number of occasions, and as held by the Hon'ble Apex Court, Revenue

Entries are only for fiscal purposes and whereas the parties should

approach a Civil Court in case of any dispute with regard to the title of

land.

9. Having regard to the submissions made by the learned Advocates for the

parties, this Court is in agreement with the submissions made by the

C/SCA/14704/2021 ORDER DATED: 04/10/2021

learned AGP Mr.Hardik Mehta that Revenue Entries are for fiscal

purposes and whereas, if there is any dispute with regard to ownership

of the land in question, the parties would have to approach a competent

Civil Court.

10. The above legal position, as submitted by the learned AGP, has been

laid down by this Court in case of Gandabhai Dalpatbhai Patel vs

State Of Gujarat, reported in 2005(2) GLR 1370 :-

"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. 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 sale deed, and the authority of power of attorney holder on the 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 sale deed before the Civil Court and that there

C/SCA/14704/2021 ORDER DATED: 04/10/2021

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 sale deed 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 Section 135 of the Bombay Land Revenue Code and 108 of the Bombay Land Revenue Rules and the view taken by the Hon'ble 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 sale deed, the powers and authority of the power of attorney holder under the power of attorney and the question with regard to the title. What is required to be done by the Sub-Registrar at the time when the sale deed 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."

11. From the law laid down by this Court, it is clear that the Revisional

Authorities exercising the jurisdiction under the Land Revenue Code

have no power or authority to adjudicate on the civil rights of the parties

and whereas in case of the parties having a dispute as regards their civil

rights, then civil suit before a competent Civil Court ought to be

preferred. It also appears that the petitioners have preferred a Regular

Civil Suit No.67 of 2013 claiming as much and whereas the same is

C/SCA/14704/2021 ORDER DATED: 04/10/2021

pending for adjudication.

12. Having regard to the same, this Court finds no error has been committed

by the Revenue Authorities in not accepting the dispute raised by the

present petitioners. Therefore, the present petition is required to be