Gujarat High Court
Legal Heirs And Reps. Of Chauhan ... vs State Of Gujarat on 23 September, 2021
Bench: Nikhil S. Kariel
C/SCA/11418/2021 ORDER DATED:
23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11418 of 2021
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LEGAL HEIRS AND REPS. OF CHAUHAN INDRASINH
HIMMATSINH
Versus
STATE OF GUJARAT
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,1.1,1.2
for the Respondent(s) No. 2,3,4,5,6,7,8
MR. UTKARSH SHARMA ASSTT. GOVERNMENT
PLEADER/PP(99) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 23/09/2021
ORAL ORDER
Heard learned Advocate Mr. N.K Majmudar on behalf of
the petitioners and learned AGP Mr. Utkarsh Sharma on behalf
of the respondent No.1 State.
2. By way of this petition, the petitioner challenges an order
passed by the Revisional Authority-respondent no.2 herein dated
30.4.2021, whereby the Revisional Application preferred by the
present petitioner is rejected and order passed by the Collector
Vadodara dated 24.12.2018 was confirmed.
3. From the facts it can be seen that the grandfather of the
present petitioners one Shri Chauhan Nathabhai had sold the land in
question vide registered sale deed dated 11.5. 1966 to father of
respondents no. 6 and 7 i.e Mr. Thakkar Bansilal Muljibhai . It
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appears that after the demise of said Thakkar Bansilal Muljibhai,
names of his heirs were mutated in the revenue record vide entry no.
4606 dated 13.11.1997. It appears that in the year 2009 the
applicants had moved an application before the Mamlatdar,
Waghodia interalia claiming that they are having possession of the
land in question and whereas their names may be mutated in the
revenue record as having possession of the land in question. It
appears that vide order dated 18.11.2009, the Mamlatdar, Waghodia
had come to a conclusion that father of the petitioner was having
possession of the land since last 10 years, and therefore, appropriate
entry was directed to be mutated in the revenue record. The said
order came to be challenged by private respondents no. 6 and 7
before the Deputy Collector, Vadodara who vide an order passed in
the year 2012 has allowed the application preferred by the present
respondents no. 6 and 7 and had set aside the order of the Collector,
Mamlatdar, Waghodia referred to hereinabove. The said order of the
Deputy Collector was confirmed by the Collector vide roder dated
24.12.2018 and the Revisional Authority vide an order dated
30.4.2021 which are impugned in the present petition. It further
appears that the present petitioners for the very self same cause had
preferred Civil Suit before the Principal Civil Judge, Waghodia vide
Regular Civil Suit No. 217 of 2015 and whereas the said Civil Suit had
been dismissed for non-prosecution vide order dated 3.1.2019.
4. Having heard learned Advocate Mr. Majmudar for the
petitioner and learned AGP on behalf of the official respondent and
having perused the order, this Court is of the considered opinion that
no fault can be found in the reasoning of the Revisional Authority
or by the Collector or Deputy Collector as the case may be. The
Mamlatdar, Waghodia while passing the impugned order had gone
beyond jurisdiction available more particularly since it is by now a
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settled position of law that the revenue authorities are not entitled to
decide the civil rights of the parties in revenue proceedings. The
petitioners by preferring the application before the Mamlatdar,
Waghodia was essentially trying to prove their possession on the land
in question inspite of the fact that the land had been already sold
vide registered sale deed of the year 1966. In the considered opinion
of this Court the inquiry by the Mamlatdar whereby the Mamlatdar
had interalia recorded statement of neighbouring land holders etc
was beyond the purview of jurisdiction of the Mamlatdar.
5. This Court in case of Ratilal Chunilal Solanki and
Ors. Vs Shantilal Chunilal Solanki reported in (1996)
2GLR 525 has at para 5 stated as thus :
"5. It cannot be gainsaid that, when a dispute as to the title to
the properties mentioned in the revenue records arises, the parties
have to go to the competent Civil Court for resolution of their such
dispute. They cannot convert the mutation proceedings under Chapter
8A of the Code into a battle-field for the purpose. The revenue
authorities are incompetent to decide the disputed question of title to
any property mentioned in any revenue record."
6. In a later decision this Court in case of Gandabhai
Dalpatbhai Patel Vs. State of Gujarat reported in 2005 (2)
GLR 1370 has stated as thus at para 9 and 10.
" 9. It is the consistent view taken by this Court in catena of judgments that
the revenue authorities while dealing with RTS proceedings had no
jurisdiction and/or authority to decide the question of title and if there is any
dispute with regard to title the parties are to be relegated to the Civil Court.
As held by the Hon'ble Supreme Court in the case of STate of GUjarat VS.
Patel Raghav Natha - AIR 1969 SC Page 1297 and judgment of this Court in
the case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal Chunilal Solanki -
1996(2) GLR 525 and Siddharth B. Shah vs. State of Gujarat, reported in
1999(3) GLR Page 2527, the revenue authorities cannot decide the disputed
question of title to the property and they have to merely go by the documents
produced before them. Even this Court has held in the case of Nathabhai
Meraman Darji (Supra) that when a document of registered sale deed is
produced before the authority, the revenue authorities are bound to give
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effect to the same and are not required to decide the question of title.
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.
11. 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 Civiil 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 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."
7. Having regard to the law laid down in decision above, in the
considered opinion of this Court the Deputy Collector, Collector,
Revisional Authority have not committed any error whatsover in
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rejecting and setting aside the order of the Mamlatdar and rejecting
the challenge to such setting aside. Furthermore though the
petitioners appeared to have preferred Civil Suit for trying to
establish their right upon the land in question they have failed to
establish their claim before the Civil Court also.
8. Hence, in the considered opinion of this case. no case is
made out for interference, hence, rejected.
(NIKHIL S. KARIEL,J)
MARY VADAKKAN
