Bhagubhai Fakirbhai Chaudhary vs Ganjabhai Kesuriyabhai ...
2022 Latest Caselaw 1456 Guj

    C/SCA/18757/2016                               CAV JUDGMENT DATED: 09/02/2022



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 18757 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

==========================================================

1 Whether Reporters of Local Papers may be allowed No to see the judgment ?

2      To be referred to the Reporter or not ?                            Yes

3      Whether their Lordships wish to see the fair copy                  No
       of the judgment ?

4      Whether this case involves a substantial question                  No

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== BHAGUBHAI FAKIRBHAI CHAUDHARY & 1 other(s) Versus GANJABHAI KESURIYABHAI CHAUDHARY & 3 other(s) ========================================================== Appearance:

MR PJ MEHTA(467) for the Petitioner(s) No. 1,2

MR P P MAJMUDAR(5284) for the Respondent(s) No. 1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9 MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9 MS. DHWANI TRIPATHI, AGP RULE SERVED for the Respondent(s) No. 2,3,4 ==========================================================

CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

Date : 09/02/2022

CAV JUDGMENT

1. By way of present petition under Article 226 of the Constitution of India, the petitioner has prayed for following relief:

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"(A) Be pleased to pass an appropriate order, issuing writ of certiorari or its nature as well as directions/ orders necessarily required for quashing and setting aside the order passed by the Collector in Revision Application No. RTS Revision Case No. 5 of 2014 dated 21.2.2015 as well as the order passed by the Special Secretary (Appeals) , Gujarat State Ahmedabad Revision No. 20 of 2015 as well as 9 of 2016 (Cross Revisions) filed under Section 108(6)(A) of Gujarat Land Revenue Rules, 1972 respectively in the interest of justice.

(B) Be pleased to pass an appropriate order to the Mamlatdar Valod for necessary correction in the mutation entires No. 374, 3711 and certified accordingly looking to the prima facie successive case of the petitioners.

(C) Be pleased to pass necessary and essential order which deems to be fit in the interest of justice."

2. The Brief facts as emerged from the record of the petition, are as under :

2.1 According to the petitioner, their maternal grand-mother Lakhadiben Rangjibhai Raisingbhai Chaudhary and their mother Baviben have purchased the land bearing Survey No. 268/02 & 269/02 at Sangaliya Okara Jesha of Titva Ta. Valol, District: Tapi at Vyara admeasuring One Acre Six Guntha in consideration of Rs. 467/- on 8.5.1930. In 1938, Rangji Raysinghbhai Chaudhari died and due to that Lakhadiben remarried with Kesuriya Bodia Chaudhari. On 14.6.1941, Lakhadiben Kesuriya Chaudhari died during course of delivery.

2.2 It is alleged that respondent No.1 Ganjabhai's father Kesuriya Chaudhari got mutated his name in revenue record by entry No. 374 dated 5.8.1941 in respect to the property which were in fact property of Rangjibhai Raysinghbhai Chaudhari, bearing No. 255/01, 268/02,

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269/02, 272/01, 276/04. On 6.3.1943, Kesuriya Bodiya had transferred the said land 269/02 in the name of Nathubhai and shifted his name in the land bearing survey No. 270/01 owned by Nathubhai which is found from the mutation entry no. 403 of Titva Taluka: Valol, which was entered in the revenue record.

2.3 It is contended that on 15.7.1996, Baviben, the daughter of Rangjibhai Raysingh Chaudhari and wife of Fakirbhai Dalabhai Chaudhari, who had died and due to that her son i.e. Petitioner Nos. 1 and 2 alleged to have became owners of land bearing Block No. 344, 349, 453 through entry No. 2751 of revenue record of Titva, Ta: Valol, District: Tapi at Vyara.

2.4 It is contended that Kesuriya Bodiya Chaudhari died on 17.1.1966, and therefore, her son Ganga Kesuriya and sisters Ramaben and Nanuben as well as Baviben Fakirbhai Chaudhari became legal heirs and entry to that effect was mutated being NO. 2752 in the revenue record on 15.7.1966.

2.5 The petitioner has challenged entry No. 374 dated 5.8.1941 by filing necessary RTS Appeal being No. 3 of 2013 on 20.2.2014 before the Deputy Collector, Vyara under Section 135L read with Rule No. 108(5) of Gujarat Land Revenue Code and allied Rules, 1972, which came to be allowed by Deputy Collector.

2.6 Against that order, respondent No.1 Ganja Kesuriya

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Chaudhari, as alleged, prepared false Pedigree and submitted it and filed Revision Application No. 5/2014 before the Collector, Tapi at Vyara which came to be allowed. On 21.2.2015. The said order of the Collector, Tapi at Vyara was challenged by way of filing Revision Application No. 20/2015 and 09/2016 before learned SSRD by both the sides i.e. the petitioners as well as respondents, as by order dated 21.2.2015, the Collector has ordered to distribute the 50% of property amongst the petitioners and respondents and confirmed the remaining part of the Collector's Order confirming the revenue entry No. 374 in the name of Ganja Kesuriya Chaudhari. The order of the learned SSRD came to be challenged before this Court by the petitioners herein.

3. Heard Mr. P.J.Mehta, learned advocate for the petitioners, Mr. P.P. Majmudar, learned advocate for the private respondents and Ms. Dhwani Tripathi, learned AGP for the respondent State.

4. Mr. P.J.Mehta, learned advocate for the petitioners has reiterated the fact which are narrated hereinabove and has submitted that the deceased Lakhadiben Rangjibhai had died on 14.6.1941. She had earlier married with Rangjibhai Raysinghbhai Chaudhari, who had died in the year 1938 and through whom she has daughter Baviben Rangjibhai. Baviben had died on 1.1.1992. He has submitted that after death of Rangjibhai, deceased Lakhadiben married with Kesuriya Bodia Chaudhari. According to him, through the

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second marriage with Kesuriyabhai, there was no child born out of their wedlock. He has submitted that after the death of Lakhadiben, Kesuriyabhai married with one Vitaliben through whom Kesuriyabhai had two daughters and one son namely Nanuben Kesurbhai, Gaajabhai Kesurbhai and Ramaben Kesurbhai. Out of them, daughter Nanuben has died on 2.11.1992.

4.1 Mr. Mehta, learned advocate for the petitioners has submitted that Baviben married with one Fakirbhai and out of that wedlock, two sons were born namely Bhagubhai and Dahyabhai, who are the petitioners. He has submitted that Fakirbhai died on 29.2.1988. He has submitted that the land in question i.e. Survey No. 268/2 and 269/2 were purchased on 8.5.1930 by Lakhadiben and Baviben by paying consideration of Rs. 467/- on 7.5.1993. He has submitted that an entry to that effect has been mutated in revenue record on 8.5.1992 vide entry No. 128 (Page 37 of the compilation)

4.2 He has invited the attention of the Court regarding the entry No. 374 dated 5.8.1941 (Compilation Page-430) regarding the heirship entry wherein it is mentioned that Lakhadiben being daughter of Rangji Raysingji who died on 14.6.1941, heirship is recorded in the name of son Ganja Kesuriya. This entry pertains to land Survey No. 255/1, 268/2, 269/2, 272/1, 276/4. He has submitted that there was no nexus of the respondent Ganja with the family Rangji Raysingji, who was first husband of Lakhadiben.

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According to him, this entry is ab-initio void. It is entered due to fraud of respondents herein. According to him, since the entry itself is void ab-initio, no limitation period will be applied. According to him, since the property in question was of the property of Lakhadiben and Baviben, all the property would devolve on the heirs of Baviben, who is born out of of the first marriage of Ladhadiben with Raysingji and upon death of Baviben it would devolve on her sons out of the wedlock of Fakirbhai i.e. the petitioner herein. He has submitted that respondent No.1 was not born out of the wedlock of Raysingji and even he was not born out of wedlock with Kesuriya by deceased Lakhadiben.

4.3 He has submitted that Ganjabhai is the son born out of wedlock between Kesuriya and Vitaliben and not from the wedlock between Kesuriya and deceased Lakhadiben. According to him, respondent herein entered his name on false documents and this fact has not been considered by the revenue authority in its proper perspective. He has submitted that even under Hindu Law, the right devolve in the daughter Baviben would be available to her sons in relation to properties Baviben had entrusted in the property of her mother Lakhadiben. He has also submitted that respondent herein has no right regarding the suit property.

4.4 Mr. Mehta, learned advocate for the petitioner has also referred to the revenue entry No. 2752 dated 15.7.1996, relating to the Survey No. 358 wherein heirship entry has

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been made in relation to the land of Kesuriya Bodiya. He has submitted that according to that entry, after death of Kesuriya Bodiya, five names have been entered into wherein name of Bhaghubhai Fakirbhai and Dahyabhai Fakirbhai are also entered on the basis of that the heirs of deceased Baviben and along with them names of Nanuben and Ramaben with respondent Ganjabhai has also been entered into.

5. Mr. P.J.Mehta, learned advocate for the petitioners have relied upon the followind decisions:

1. In the case of Tarabai Dagdu Nitanware and Ors v.

Narayan Keru Nitanware, reported in 2018 (2) AIR BomR 98;

2. In the case of Saburbhai Hemabhai Chauhan v. State of Gujarat & Ors, reported in 2000(1) GLR 835;

3. In the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors, reported in 1996 (2) GLR 525;

4. In the case of State of Orissa and Others v. Brundaban Sharma and Another, reported in 1995 Supp (3) SCC

6. Per contra, Mr. Majmudar, learned advocate for the contesting respondents has submitted that the entry No. 374 is of the year 1941. He has submitted that the entire initiation proceedings has been initiated after delay of 67 years without any application for delay. He has submitted that the petitioner has alleged regarding fraud exercised by the respondent's side, however, there is no proof thereof.

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According to him, there must be some proof regarding the alleged fraud. He submitted that in absence of any such proof, the stand taken by the petitioner in the entire proceedings was nullity from the very beginning, cannot be palatable. He has submitted that the Pedhinama produced at Page-34 dated 5.11.2011 is a disputed one. He has further submitted that the alleged entry has never been challenged by Baviben till her death in 1992. He has submitted that Bhagubhai challenged this entry even after death of the mother Baviben i.e. after 20 years thereof. While referring to Page-37, he has submitted that in the Form No.6, Lakhadiben and Baviben have been shown as daughters of Rangjibhai Raysingh Chaudhari. He has further submitted that even according to Rojnama of Deputy Collector, Vyara (Page-84 of the compilation), no notice was served to the respondent. While referring to the heirship application filed by Bhagubhai Fakirbhai dated 7.8.2004 (Page-161 and 162). He has submitted that name of Ganjabhai Kesubhai has been shown as one of the heirs by the petitioner No.1 Bhagubhai himself before the authority. He has submitted that the entire exercise undertaken by the Deputy Collector was without jurisdiction as there was a clear cut delay of 67 years. He has submitted that even the petitioner himself has accepted before the authority that Ganjabhai was one of the heirs by way of producing the Pedhinama, as per Page-61 and 62. He has further submitted that when earlier, on the basis of the Pedhinama produced by Bhagubhai himself, heirship entries were entered into, now the petitioner cannot challenge the same

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by producing false and disputed Pedhinama dated 5.11.2011. He has submitted that the order passed by learned SSRD is in consonance with law and it does not require any interference. He has prayed to dismiss the present petition.

7. Mr. P.P. Majmudar, learned advocate for the private respondents has relied on the following decisions:

1. In the case of Ragho Singh v. Mohan Singh, reported in 2001 (9) SCC 717;

2. In the case of Paschim Gujarat Vij Company Ltd. Thro.

Executive Engineer v. Aum Business House Pvt. Ltd. Thro Pravinbhai, reported in 2007 JX (Guj) 269;

3. In the case of Darabsha Sorabji v. State of Gujarat & Ors, reported in 2005(3) GLH 436;

4. In the case of Kalpeshbhai Natwarlal Patel v. State of Gujarat & Anr., reported in 2009(3) GLH 372;

5. In the case of Patel Govindbhai Mohanbhai v. Vaghri Ghela Jalu since deceased through LRS. & Ors, rendered in Civil Appeal No. 735 of 2021;

6. In the case of Hansaben W/o. Bhagwanbhai Ratnabhai and Legal Guardian & Ors. v. State of Gujarat and Ors, reported in 2009(3) GLH 271.

8. Ms. Dhwani Tripathi, learned AGP for the State has vehemently submitted that the order of the learned SSRD is proper and there is no need of any interference with the same. She has prayed to dismiss the petition.

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9. In rejoinder, Mr. Mehta, learned advocate for the petitioners has reiterated his submissions and has referred to rejoinder affidavit filed by the petitioner, especially Page-176 and has submitted that the reliance placed on the Pedigree by the respondents is a fabricated documents and, therefore, the submission on behalf of respondents cannot be accepted as it is based upon false and fabricated document. He has submitted that the Pedigree submitted by Ganjabhai Chaudhari dated 7.8.2014 whereby the witness name Bhanabhai Okanabhai and Nashwanbhai Sarainia have been shown at Page-170, were actually died on 29.3.2007 and 3.8.2008 respectively, whereas the panchnama is of 7.8.2014. According to him, respondent No.1 has committed serious blunder by false Pedigree with ulterior motive of encroaching the property of Rangjibhai Raysingh Chaudhari. According to him, the correct Pedigree is at Page-34 and 35. He has submitted that the present petition needs to be allowed by confirming order of the Deputy Collector, Vyara. He has submitted that though the Collector has no authority to decide the share of the parties concerned in the immovable property, the Collector has ordered to divide the property in equal share. According to him, this observation has rightly been set-aside by learned SSRD. According to him, the learned SSRD ought to have set-aside the entire order of the learned Collector and ought to have confirmed the order of the Deputy Collector, Vyara. He has prayed to allow the petition.

10. In the case of Tarabai Dagdu Nitanware and Ors v. Narayan

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Keru Nitanware (Supra), the facts shows that the suit was filed for declaration, partition, injunction in respect of the suit property claiming that the plaintiff No.1 is the husband of deceased Sundarabai and Plaintiff Nos. 2 to 5 are her sons and daughters. According to the defendants, deceased Sundarabai has died issueless on 18.6.1962 and plaintiff Nos. 2 to 5 were not born to her, but this children were born from second wife of plaintiff No.1. The Bombay High Court has referred to Section 15 of the Hindu Succession Act and has observed in Para-12 that as per sub section (2) of section 15, notwithstanding anything contained in sub section (1), any property inherited by a female Hindu from her father or mother, shall devolve, in the absence of any son or daughter of the deceased not upon the legal heirs referred in sub section (1) in the order specified therein, but upon the heirs of the father. It was further observed that this provision, thus, clearly excludes the husband from inheriting the property received by a female Hindu from her parents if she was not having any children or has died issue-less. Considering the facts of that case, it was held that admittedly the suit property was received by deceased Sundarabai from her parents and admittedly plaintiff Nos. 2 to 5 are not her children as they are born to respondent from his second wife and, therefore, it follows that Sundarabai has died issueless and in such situation, in absence of son or daughter, her husband also cannot inherit the property and the property will devolve upon the legal heirs of her father. The order of the trial Court holding the suit maintainable was quashed and set-aside and the

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plaint came to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure.

11. In case of Saburbhai Hemabhai Chauhan v,. State of Gujarat & Ors (Supra), this Court has held in Para-11 as under:

"11. In J.K. Patel Vs. District Collector, Mehsana 37(2) GLR 688 proceeding to declare sale void was initiated 20 years after the sale transaction. It was held that the transaction being void it could be declared so at any time and mere lapse of time would not make the action of the authorities invalid. It was observed that it is a settled proposition of law that any action, transaction, decision or order which is illegal and void ab initio is to be treated as non-est. The validity of such an illegal non-est order could be questioned in any proceedings at any stage by anybody. The very nature of non-est order in its effect does not create any right, title or interest. It being void, it confers neither any status nor any right. With the result, such non-est or illegal order, decision, transaction or action would be for all purposes ineffective and of no consequence in the eyes of law. The ratio of this case can be applied to the present petition also. It is immaterial that this ratio was given in a case under Bombay Prevention of Fragmentation and Consolidation Holdings Act. The same view was taken in Koli Nagjibhai Varjan Vs. State of Gujarat & Ors. 33(1) GLR 14. It was held in this case that normally the power of revision should be exercised within a reasonable time where by law no period is prescribed. However, where the transaction is non-est, the court cannot validate that transaction by invoking this principle".

12. In case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors (Supra), this Court in Paras-3 and 4 has observed that when an dispute as to the title to the

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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 Bombay Land Revenue 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. The revneu authority are duty bound to correct the mutation entry in the revenue record in accordance with the Civil Court's decision.

12.1 Mr. P.J.Mehta, learned advocate for the appellant has heavily relied upon Paras-6, 8 and 9 of the said order, which read as under:

"6. Learned Advocate Shri Marshall for the contesting respondents has then urged that it was not the case of the petitioners herein before the revenue authorities in the mutation proceedings that the contesting respondents or respondent Nos. 1 to 6 herein should be driven to the Civil Court for establishment of their title to the disputed lands under the Will. Whether or not such a stand was taken by the petitioners in the revenue proceedings is not material when it is found that the revenue authorities have transgressed their limits of authority and jurisdiction. In fact, in. the notice at Annexure-A to this petition, the petitioners have clearly denied execution of any Will by the deceased much less the alleged Will on 12th September 1980. Simply because they demanded perusal of the original Will in the mutation proceedings is no ground to come to the conclusion that they had given up their contention regarding the valid execution and genuineness of the testamentary document in question.

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8. According to settled principles of law, a writ Court would be justified in correcting an error of law apparent on the record of the case. As transpiring from the material on record, the revenue authorities have transgressed their limits in practically deciding the disputed question of title to the disputed lands by accepting the alleged Will for the purpose of effecting mutation in the revenue records pertaining to the disputed lands. That would certainly constitute an error of law apparent on the face of the record. This Court's interference therewith would clearly be justified.

9. Even if it is assumed for the sake of argument that the jurisdiction in this case is exercisable only under Article 227 of the Constitution of India, the authorities below have acted wholly without authority and jurisdiction. It is not merely a simple error of law which could not be corrected in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India in view of the binding ruling of the Supreme Court in the case of Mohd. Yunus v. Mohd. Mustaqim . When an order is without authority or jurisdiction, it can certainly be interfered with in the petition under Article 227 of the Constitution of India. The aforesaid binding ruling of the Supreme Court is, therefore, distinguishable on this ground.

13. In case of State of Orissa and Others v. Brundaban Sharma and Another (Supra), in Para-8 it was observed that the collection of revenue or rent otherwise is in regular course of duty. It does not operate as recognition of pre-existing right, title or interest in the land by the respondent.

13.1 Shri Mehta has relied upon the head-note where it has been reflected that Non est order is a void order and it confers

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no title and its validity can be questioned or invalidity be set up in any proceeding or at any stage.

14. In case of Ragho Singh v. Mohan Singh (Supra) , while dealing with the provisions of Section 5 of the Limitation Act for condonation of delay, it was held that it cannot be condoned in absence of application for condonation of delay. In the said matter, the appeal was filed before the Additional Collector beyond 10 days and the application under Section 5 of the Limitation Act was not filed for condonation of delay, it was held that Appeal was liable to be dismissed on the ground of limitation.

15. In the case of Paschim Gujarat Vij Company Ltd. Thro.

Executive Engineer v. Aum Business House Pvt. Ltd. Thro Pravinbhai (Supra), it was observed that the period of limitation starts from the date of the order and the date of the knowledge of that order to the party, may be a good ground for condonation of delay.

16. In the case of Darabsha Sorabji v. State of Gujarat & Ors (Supra), while dealing with the provisions of Gujarat Agricultural Land Ceiling Act, 1960 it was observed that revenue Tribunal cannot condone delay without application filed praying for condonation of delay.

17. In the case of Kalpeshbhai Natwarlal Patel v. State of Gujarat & Anr.(Supra), while dealing with the provisions of Section 5 of the Limitation Act, in Para-12 and 13 as

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observed as under:

"12 The law is well settled that in case where a statutory time limit is prescribed for initiating remedial action, the aggrieved person is bound by the said time schedule and in the event the remedy is invoked beyond the statutory period of limitation, the Authority cannot entertain the proceeding on merits before first recording a decision as to whether the delay which has occasioned in instituting the proceeding has been explained or not. In the facts of the present case, in absence of any such decision by the Deputy Collector, the order dated 23.10.2003 is bad in law having been made without jurisdiction to entertain the Appeal on merits.

13. A faint attempt during course of hearing was made on behalf of petitioners that as the order was made on merits one can presume that the delay has been condoned. This submission cannot be countenanced. As recorded here-in-before, the order was made in 1963 when deceased Somabhai was alive and right to challenge the same was available to the said gentleman.

Deceased Somabhai having not raised that challenge within prescribed period of limitation the law assumes that the cause was abandoned by the aggrieved person. The Law of Limitation is very clear that once a cause has been abandoned the aggrieved person has to be put to strict proof for explaining the delay in question as consequential rights in favour of the other side would come into existence by then, i.e., at the end of the period of limitation. In the present case, the contention that the delay would not cause prejudice to anyone, also does not merit acceptance. The land in question having been resumed by the State Government and then granted to deceased Somabhai only for the limited purpose of cultivation, there is no question of accepting that no prejudice is caused to anyone. The land having been resumed by the State Government is thus a property held by

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the State Government for and on behalf of and for the benefit of public at large and it cannot be stated that no prejudice would result in so far as anyone else is concerned. Therefore this contention cannot be accepted".

18. In the case of Patel Govindbhai Mohanbhai v. Vaghri Ghela Jalu since deceased through LRS. & Ors (Supra), in judgment dated 17.2.2021, the three Judges Bench of the Supreme Court has observed as under:

"14. A great deal of arguments on behalf of contesting respondents is to the effect that they have a substantial case on merits and, therefore, the order passed by the Division Bench deserves not to be interfered with. However, staring hard on the face of these submissions are the facts that the auction in question took place way back in the year 1980 and the same was sought to be challenged, for the first time, by the contesting respondents only in the year 2005. Apart that the predecessor of the contesting respondents did not put any challenge to the said auction proceedings, he even transferred another piece of nearby land, by way of a registered sale deed dated 20.01.1984, to the same person who had purchased the land in question in auction. Thereafter, the predecessor of the contesting respondents expired in the year 1986. The land in question continued with the auction purchaser; and in the year 2003, the appellant purchased a portion thereof along with the other persons (who were respondent Nos. 5 and 6 in the High Court). In the given status of record and settled position regarding the land in question, there was no justification to entertain a challenge to the auction proceedings after more than two decades.

15. Even when the right of a person to take recourse to appropriate remedy in relation to his legal grievance is not

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denied, such a recourse could only be in accordance with law and not at the sweet will of the suitor. Ergo, an action seeking relief by way of legal proceedings has to be taken up either within the limitation prescribed by law or, in case there is no prescribed period of limitation, within a reasonable time after the right to sue has accrued, beyond which, the settled status and position of the parties and their rights cannot be disturbed. Even in the extraordinary writ jurisdiction, where no limitation is prescribed as such, the factors related with delay and laches carry their own relevance and cannot be ignored".

19. In the case of Hansaben W/o. Bhagwanbhai Ratnabhai and Legal Guardian & Ors. v. State of Gujarat & Ors (Supra), while dealing with the provisions of Sections 3 and 5 of the Limitation Act, 1963 and regarding the effect of the alleged nullity of an order, has observed in Para-18 that if an order is void, it is a nullity and that can be challenged at any point of time. In the said order, this Court has observed that challenge to such order must be made within period of limitation where it is prescribed and where no such period is prescribed, challenge should be within reasonable time. It was further observed that by no stretch of imagination, period of 19 years can be said to be reasonable period.

20. Heard learned advocates for the parties. Perused the materials placed on record and the decisions cited at bar. It is an admitted fact that the petitioner has challenged the revenue entry No. 374, which came to be entered into in 1941, in 2013. The ground raised by the Petitioner before the revenue authority is that the land Survey No.24 of

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village Titva, Taluka: Valod, District Tapi at Vyara was in the name of Lakhadiben, who was daughter of Rangjibhai Raysingh Chaudhary. According to the petitioner, after the death of Lakhadiben, heirship No. 374 dated 5.8.1941 came to be mutated wherein name of Ganjabhai Kesuriyabhai has been mutated, against which she has preferred an application before Deputy Collecotr, Vyara by filing R.T. S Appeal No. 3 of 2013. It is also contended that after the death of Lakhadiben, Kesuriyabhai Chaudhary married one Vitaliben in 1941, from which wedlock, Ganjabhai, Ramaben and Nanji were born. It is the stand of the petitioner that since all these three persons have born out of the wedlock of Kesuriyabhai with Vitaliben, they cannot be direct heirs of deceased Lakhadiben Rangjibhai yet after name of Lakhadiben, name of Ganjabhai has been entered into as heir of Lakhadiben. It is contended that as Ganjabhai is son of Vitaliben, he has not concerned with the property of the deceased Lakhadiben. It is also the say of the petitioner that as per Pedigree produced before the Revision Appeal No. 5 of 2014, Nanuben Kesuriya was born on 20.1.1930, Ganjabhai Kesuriya was born on 5.12.1933 and Ramaben was born on 19.10.1936. It is further say that in view of thsi fact, Rangji Raysingh Chaudhari died in 1938 and thereafter Lakhadiben had married with Kesuriyabhai, who had died in 1941 and, therefore, all the three have born before 1938, they cannot be believed to be children of Rangjibhai Raysingh Chaudhary. It is also submitted that from her first marriage with Rangjibhai Raysingh Chaudhary, Lakhadiben had one daughter namely Baviben. Thereafter, Lakhadiben

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had no other child born out of wedlock with Kesuriyabhai. The petitioner is heavily relying upon the fact that since Lakhadiben has only one daughter born out of wedlock with Rangjibhai Raysingh Chaudhary, the property which was purchased in the name of Lakhadiben and Baviben would not devolve upon the children of Kesuriyabhai as those children are born out of wedlock of Kesuriyabhai with Vitaliben and not from the wedlock of Kesuriyabhai with Lakhadiben. According to the petitioner, after death of Lakhadiben, her shares in the entire property would devolved upon Baviben and on her death, it would pass to heirs of Baviben, as per Hindu Succession Act. Now, it is an admitted fact that revenue entry of heirship has been entered into the revenue record in the year 1941, the same has come to be challenged in the year 2013. It also appears from the record that Baviben Kesubhai Chaudhary died on 1.1.1992. For the period from 1992 till 2013, no action was taken by the petitioner herein for challenging the heirship entry entered into revenue record in the year 1941. Thus, even after almost 21 years, the RTS proceedings has begun after almost 21 years. There is no explanation of such delay made by the petitioner. Of course, it is the say of the petitioner that the entire proceedings of entering heirship entry No. 374 in the year 1941 was a nullity from the very beginning and, therefore, it can be challenged at any point of time. But in view of the decisions, which are referred to hereinabove, an order of nullity even can be challenged within reasonable period of time. Admittedly, in this case, the petitioners have awaken out of slumbers after 67 years.

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21. Further, it is pertinent to note that the questions raised by the petitioner herein are disputed fact which need to be adjudicated upon by the Civil Court in appropriate Civil proceedings. The various issues raised relating to the rights and title regarding the heirship of the property are concerned, that cannot be decided in a RTS proceedings and it needs to be decided by way of adjudication by Civil Court. Since, the present petition is filed against the order passed by the revenue authority under RTS proceedings, this Court is of the considered view that appropriate remedy to decide the title and heirship relating to the property in question need to be adjudicated upon by the Civil Court.

22. Therefore, on both the counts, the present petition is liable to be dismissed.

23. In view of the aforesaid discussion, the present petition stands dismissed. However, it will be open for the petitioners to pursue appropriate Civil remedy, if any, available under the law. Rule discharged. Interim relief stands vacated. No order as to costs.

(DR. A. P. THAKER, J) SAJ GEORGE