Noorahmmad Hajibhai Deraiya vs Roshanben Hajibhai Deraiya W/O ...
2021 Latest Caselaw 16206 Guj

     C/LPA/754/2021                            ORDER DATED: 14/10/2021




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 754 of 2021
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 10065 of 2020

                                 With

              CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
                                  In
              R/LETTERS PATENT APPEAL NO. 754 of 2021
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                 NOORAHMMAD HAJIBHAI DERAIYA
                             Versus
        ROSHANBEN HAJIBHAI DERAIYA W/O GANIBHAI SORATHIYA
==========================================================
Appearance:
MOHSINKHAN A KOREJA(9296) for the Appellant(s) No. 1,2,3,4
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 3,4,5
MR. TIRTHRAJ PANDYA, AGP, ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP(99) for the Respondent(s) No. 2
MR ANKUR Y OZA(2821) for the Respondent(s) No. 1
==========================================================


 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE R.M.CHHAYA

                           Date : 14/10/2021

                            ORAL ORDER

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

1. This intra-court appeal lays a challenge to the judgment dated 09.07.2021 passed in Special Civil Application No. 10065 of 2020, whereunder learned Single Judge by the impugned judgment has set aside the order dated 19.02.2018 passed by the Collector and District Magistrate, Bhavanagar in RO/Revision/85/2017 and order dated 12.06.2020 in MVV/HKP/BhVN/38/2018

C/LPA/754/2021 ORDER DATED: 14/10/2021

passed by the Special Secretary, Revenue Department (Dispute) and directed that the application of the petitioner filed before the Deputy Collector in Appeal Restoration No. Rev./Delay/Appeal/Reg. No.72/2017-18 be heard on merits.

2. The facts in brief which has led to the filing of this Appeal can be summarized as under : -

2.1 The appellants and first respondent are brothers and sisters. Revenue records of land bearing Survey No. 290 admeasuring 1-70-98 Hectre Sq. Metre came to be mutated by entry No. 5697, whereby names of appellant Nos. 1 to 3 came to be entered by taking into consideration the affidavit dated 02.08.2010 filed by the first respondent and other sisters of appellants (who are not parties herein) and it came to be ordered and certified accordingly. On expiry of the father of the appellants and first respondent on 14.10.2010, appellants herein moved an application for distribution of land inter se between the brothers, and on such distribution inter se, mutation entry No. 6364 was made in the revenue records, whereunder the property was said to have been distributed amongst the brothers and entry was accordingly certified.

2.2 The first respondent herein being aggrieved by the same challenged the aforesaid entry No. 6364 by filing an Appeal before the Deputy

C/LPA/754/2021 ORDER DATED: 14/10/2021

Collector. The Revenue Authorities are said to have concurrently held in favour of the appellants holding that since respondent No. 1 - original petitioner has given up her rights by executing an affidavit on 02.08.2010 by receiving consideration, therefore she cannot challenge the said entry. Said order of revenue authorities being challenged, the learned Single Judge has allowed the petition on the ground that the purported declaration / relinquishment / affidavit is hit by the provisions of the Indian Registration Act, 1908 and as such has set aside the orders passed by the revenue authorities and directed that the appeal filed by the first respondent along with the application for condonation of delay be heard on merits. Hence, challenging the order of learned Single Judge, appellants have preferred this appeal.

3. Having heard the learned advocate Mr. H.J.

Karathiya for the appellants, learned AGP Mr. Tirthraj Pandya for the respondent - State and learned advocate Mr. Ankur Y. Oza for the respondent No. 1 and having perused the impugned order as well as the case papers, we are of the considered view that impugned judgment does not call for interference at the hands of this Court for the reasons indicated herein below.

4. It is an undisputed fact that first respondent and the appellants are brothers and sister. It is only the revenue entry made in favour of the brothers in Entry No. 6364 came to be challenged by the first respondent

C/LPA/754/2021 ORDER DATED: 14/10/2021

by filing an appeal before the Revenue Authorities. It is also not in dispute that the entry No. 5697 mutating the revenue records of Survey No. 290 paiki 1 of Village Sihor, Taluka Sihor, District Bhavnagar in favour of appellant Nos. 1 to 3 herein has not been challenged, whereby the revenue records had been mutated in favour of appellants by accepting the affidavit dated 02.08.2010. The learned Single Judge while examining the issue as to whether the revenue authorities could have rejected the claim of the first respondent, has proceeded to hold that affidavit or declaration or relinquishment executed by first respondent herein is hit by Section 49 of the Registration Act, 1908. No doubt the said finding on the issue of law may be correct, however, neither the revenue authorities nor the Writ Court would be competent to declare as to whether a particular document is null and void on account of the same being hit by the provisions of any Act. In other words, the declaration of title can be issued by a competent Civil Court and not the revenue authorities. In other words, the issue relating to the title will have to be necessarily established by such party claiming title before the competent Civil Court.

5. Be that as it may. The issue relating to entry in the revenue records is based on the document that would be placed by the parties before the revenue authorities. However, on the technical ground of the delay, the claim of the first respondent could not have been nipped at the bud. It is because of this precise reason, learned Single Judge has rightly arrived at a conclusion that application

C/LPA/754/2021 ORDER DATED: 14/10/2021

or petition filed by the first respondent challenging mutation entry No. 6364 could not have been rejected. The said finding recorded by the learned Single Judge would not call for our interference. However, we make it clear that observations made with regard to the title is kept open and the revenue authorities need not be influenced by the observations made thereunder and they would be at liberty to adjudicate the claim of the first respondent independently notwithstanding the observations made in the paragraph 8 and 9 of the impugned order.

6. Subject to above observations, appeal stands disposed of.

Order in Civil Application (for stay) No. 1 of 2021 In view of the order passed in the main appeal, the present Civil Application also stands disposed of as it does not survive for consideration.

(ARAVIND KUMAR,CJ)

(R.M.CHHAYA,J) AMAR SINGH