Bhabhor Somabhai Gemabhai vs The Special Secretary (Appeals)
2021 Latest Caselaw 13683 Guj

       C/SCA/12423/2021                                 ORDER DATED: 09/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12423 of 2021

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                            BHABHOR SOMABHAI GEMABHAI
                                       Versus
                          THE SPECIAL SECRETARY (APPEALS)
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Appearance:
MR DIPEN SANKHESARA, ADVOCATE for MR DHAVAL D VYAS(3225) for the
Petitioner(s) No. 1,2
 for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,33,34,35
,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,56,6,7,8,9
MR UTTKARSH SHARMA, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 09/09/2021
                                   ORAL ORDER

1. Heard learned Advocate Mr. Dipen Sankhesara for learned Advocate Mr. Dhaval D. Vyas on behalf of the petitioners and learned AGP Mr. Uttkarsh Sharma on behalf of the respondent-State.

2. By way of this petition, the petitioners challenge the order passed by the respondent No.1- revisional authority dated 23.03.2021, whereby the order passed by the Collector, Dahod dated 18.07.2019 in RTS Case No. 78 of 2017 confirming the order passed by the Deputy Collector in RTS Appeal No. 29 of 2017 dated 30.06.2017, has set aside and whereas the revisional authority has further directed that decision of the Principal Civil Judge, Sanjeli in Regular Civil Suit No. 94 of 2016 would be binding upon the parties and whereas the parties are directed not to create any third party right till final decision of the Civil Court and any appeal/revision thereupon.

3. Learned Advocate Mr. Sankhesara for the petitioners would submit that the order passed by the Deputy Collector as well as Collector did not

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suffer any infirmity or illegality and whereas the decision by the revisional authority of setting aside the same was absolutely unwarranted.

4. It appears that vide an entry dated 30.06.1950 land being Survey Nos. 309, 310, 317, 318, 324, 328, 329, 330, 331, 332, 333, 334, 361 and 362 were stated to be ownership of one Patel Koya Kala i.e. ancestor of respondent Nos. 5 to 56. It further appears that over a period of time vide various entries, names of successors of Patel Koya Kala came to be entered into revenue record, more particularly as entries on basis of inheritance. Such position had continued till the year 2016 and whereas the petitioners herein had challenged the entry dated 30.06.1950, insofar as the same concerned entry Nos. 313, 314, 315, 316, 317, 318, 324, 325 and 326 before the Deputy Collector, Zalod, who vide order dated 22.04.2016 had rejected such appeal. The petitioners being aggrieved by the same have preferred an appeal being the Collector, Dahod, who vide order dated 03.03.2017 had partly allowed the appeal and remanded the matter back to the Deputy Collector, Zalod. It appears that vide order dated 30.06.2017 in RTS Appeal No. 29 of 2017, the Deputy Collector had rejected the entry No.1 of the year 1950, insofar as it concerned land bearing revenue survey Nos. 317, 318 and 324 and had directed that the names of legal heirs of Bhabhor Hirabhai Kalabhai should be mutated in the revenue record insofar as the said parcels of land and whereas such direction had been issued to the Mamlatdar, Sanjeli. The private respondent Nos. 5 to 56 being aggrieved by such decision of the Deputy Collector had preferred an appeal before the District Collector, Dahod vide RTS Case No. 78 of 2017, which came to be rejected by the District Collector vide order dated 18.07.2019. The said order of the Collector, Dahod had been challenged by the respondent Nos. 5 to 56 before the revisional authority by preferring Revision Application No. 22 of 2019 which came to be allowed vide order dated 23.03.2021 which is impugned by way of this petition.

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5. Learned Advocate Mr. Sankhesara for the petitioners would submit in this regard that at the relevant point of time when the name of Patel Koya Kala had been entered in the revenue record, the same was by way of a mistake and whereas originally the name of Bhabhor Hirabhai Kalabhai i.e. ancestor of the petitioners had been going on in the revenue record which appears to have been fraudulently struck of. Learned Advocate would further submit that the petitioners are the owners of the land in question and merely because of erroneous entries in the revenue record, the pre- existing right of the petitioners on the land cannot be extinguished. It is further submitted that the respondent Nos. 5 to 56 have no right, title or interest over the property concerned.

6. Upon hearing learned Advocate for the petitioners and perusing the pleadings including the orders of the revenue authorities, it appears that dispute is with regard to the title of the property concerned and whereas what is sought to be argued is that even though the revenue entries may reflect ownership of the respondent Nos. 5 to 56 in the properties, yet the land was infact of the ownership of the present petitioners

7. Having regard to the dispute raised in the petition, this Court is of the opinion that the petitioners ought to have agitated their grievance before a Competent Civil Court for establishing their ownership upon the property and whereas even while arguing that revenue entries would not confer ownership of the property, infact the petitioners want their ownership right to be recognized through setting aside the revenue entries in favour of the private respondents and having their names entered into the revenue record.

8. It would be further pertinent to mention here that both the District Collector as well as Deputy Collector in the orders impugned before the revisional authority have adjudicated upon the civil rights of the parties, which was beyond their purview. The Deputy Collector in the order relied

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upon the affidavit by a third party which states that land bearing survey Nos. 317, 318 and 324 belong to the ancestor of the petitioners herein Shri Bhabhor Gemabhai and that the legal heirs of the said person are doing agricultural activities on the land for years. Furthermore, the Collector also relied upon the affidavit which states that entry No.1 was erroneous inasmuch as no person by the name of Patel Koya Kala lived in the said village before independence and such person was never born in the village and that the said person did not have any right upon the land in question. The District Collector inter alia holds that ancestor of the petitioners was doing agricultural activities on the land in question for years. Such findings of the revenue authorities, in the considered opinion of this Court, were clearly beyond their purview, more particularly since such findings touched upon the civil rights of the parties. For such declaration, the petitioners ought to have approached the Competent Civil Court.

9. This Court in case of Gandabhai Dalpatbhai Patel v. State of Gujarat, reported in 2005 (2) GLR 1370 has inter alia held as under :

8. ......As held by the Hon'ble Supreme Court in the case of Swarni (SMT) Vs. Indrakumar (SMT) and others, reported in 1996(6) SCC 433 and in the case of Sankalchand Jayantilal Patel (Supra) , record of rights and mutation entries are only one of the modes of proof of enjoyment of the property and such entries do not create any right, title or interest in property. It is required to be noted that the case before the Hon'ble Supreme Court in the case of Sankalchand Patel (supra) was also relating to the provisons of Bombay Land Revenue Code and the Apex Court was dealing with Section 135 of the Code. Even it is the consistent practice and view of this Court as held in catena of judgements that the entries in the record of rights do not confer any right, title or interest in the property and that they are only for the fiscal purposes for collection and payment of revenue.

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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

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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..."

10. Having regard to the law laid down by this Court in the decision as hereinabove, more particularly in view of the fact that the petitioners by virtue of change in revenue record intend to establish their title over the land in question, this Court is of the considered opinion that there is no error committed by the revisional authority in setting aside the order passed by the District Collector, more particularly since both the Deputy Collector as well as the District Collector appear to have, while deciding the RTS Case, decided the civil rights of the parties, which is not permissible.

11. For the foregoing discussion, in the considered opinion of this Court, there is no case for interference made out against the order passed by the revisional authority dated 23.03.2021. Hence, the present petition is rejected.

12. It is clarified that appropriate changes shall be made in the revenue record on the basis of final decision of the Regular Civil Suit No. 94 of 2016 and counter claim filed by the petitioners therein.

(NIKHIL S. KARIEL,J) BDSONGARA