Heirs And Legal Representatives ... vs State Of Gujarat Thro Special ...
2022 Latest Caselaw 1516 Guj

    C/SCA/3355/2012                               CAV JUDGMENT DATED: 09/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 3355 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                                Sd/-

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

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 ?

================================================================ HEIRS AND LEGAL REPRESENTATIVES OF SHIVLAL KALIDAS PATEL & 2 other(s) Versus STATE OF GUJARAT THRO SPECIAL SECRETATRY & 6 other(s) ================================================================ Appearance:

MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,1.1,1.2,1.3,2,3 MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1,2,3,4 MR SHITAL R PATEL(2166) for the Respondent(s) No. 6,7 RULE SERVED for the Respondent(s) No. 1,2,3,4,5,6,7 ================================================================

CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

Date : 09/02/2022 CAV JUDGMENT

1. By way of this petition under Article 226 and 227 of the Constitution of India, the petitioners have challenged the order passed by the respondent no.1 dated 14.03.2012 (22.02.2012) passed in Revision Application Nos.95 of 2010 and 01 of

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2011, whereby the Revision Application preferred by respondent nos.5 to 7 has been allowed and the order passed by the respondent no.2 dated 06.08.2010 and 30.10.2010 has been quashed and set aside and order passed by the respondent no.3 dated 08.03.2010 came to be confirmed.

2. The brief facts as emerges from the petition are as under:

2.1. The land bearing block nos.119, 138, 224, 259, 366 and 59 situated at Village Kalam, Taluka Vagra, District Bharuch was acquired by late Mr.Hirubhai Kalidas Patel as tenant on behalf of all the brothers i.e. petitioners herein as at the relevant point of time, the petitioners were there since Mr. Hirubhai Kalidas Patel was elder son of late Mr.Kalidas Ranchhodbhai Patel, his name was entered in revenue record as a tenant in respect of the land in question. That on the death of Mr. Hirubhai Kalidas Patel on 14.03.1987, names of the petitioners and respondent nos.5 to 7 were entered in the revenue record in respect of the land in question and mutation entry being no.1092 was posted on 16.04.1987.

2.2. Thereafter, on the death of Mr.Shivlal Kalidas, the names of his heirs were entered in the revenue record vide mutation entry no.1931.

2.3. Being aggrieved by the mutation entry no.1092 dated 16.04.1987, respondent nos.5 to 7 had preferred the appeal

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before Deputy Collector, Bharuch being Appeal No.8 of 2006, which came to be rejected by the Deputy Collector, Bharuch vide order dated 22.05.2006. That after mutation of the entry being no.1931, while giving effect to the said entry in the computer record, mistake was committed and therefore by order dated 07.09.2009 order was passed by Mamlatdar, Vagra for correcting the mistake and accordingly mutation entry being no.1982 came to be posted.

2.4. Thereafter, the respondent nos.5 to 7 preferred an appeal challenging the mutation entry being no.1931 before the Deputy Collector, Bharuch which came to be allowed by the Deputy Collector, Bharuch by order dated 08.03.2010 and mutation entry being 1092 dated 16.04.1987 in respect of the land in question came to be confirmed qua the heirs of the late Mr.Hirubhai Kalidas Patel and entry qua the petitioners herein came to be cancelled. By the aforesaid order, mutation entry no.1931 dated 26.03.2009 and entry no.1982 dated 08.09.2009 also came to be cancelled.

2.3. Against the order of the Deputy Collector, Bharuch dated 08.03.2010, the petitioners preferred an appeal being Appeal No.45 of 2010 before the respondent no.2, who has allowed the appeal vide order dated 06.08.2010 and quashed and set aside the order passed by the Deputy Collector, Bharuch dated 08.03.2010.

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2.4. Being aggrieved and dissatisfied by the order passed by the respondent no.2- the Collector, respondent nos.5 to 7 had preferred Revision Application No.95 of 2010 before the respondent no.1, at the same time, respondent nos.5 to 7 had also preferred an appeal before the respondent no.2 against the order passed by the Deputy Collector, Bharuch dated 22.05.2006, whereby appeal preferred by them against the mutation entry being 1092 came to be rejected. However, since the order dated 06.08.2010 came to be passed by the Collector, Bharuch cancelling the mutation entry being no.1092 qua the petitioners, the Collector passed an order dated 30.10.2010 observing that no further order is required to be passed in view of the order dated 06.08.2010. Against the said order, respondent nos.5 to 7 preferred revision application before the respondent no.1 being Revision Application No.1 of 2011.

2.5. The revision applications filed by both the sides came to be heard together and ultimately respondent no.1 has vide the impugned order allowed the revision application filed by the respondent nos.5 to 7 and order passed by the Collector Bharuch dated 06.08.2010 came to be quashed and set aside and the order passed by the respondent no.3, Deputy Collector, Bharuch dated 08.03.2010 came to be confirmed.

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3. The respondent No.6 has resisted this petition by filing affidavit in reply, inter alia contending that her father died on 14.03.1987 and on his death entry no.1092 came to be entered in the village form no.6 for succession i.e. heirship. It is also contended that the name of the brothers of the deceased came to be entered as heirs, which is not permissible in the law. It is contended that the deceased Mr.Hirubhai Kalidas Patel exclusively cultivated the land all through out his lifetime till he died. It is also contended that the authority under the Tenancy Act namely Mamlatdar and ALT fixed the purchase price in favour of deceased Mr.Hirubhai Kalidas Patel and issued certificate under Section 32-M of the Tenancy Act in his favour. It is contended that under the Hindu Succession Act, 1956, brother does not fall within the first schedule of Section 8 of the Act and cannot succeed to the brother's property when real heirs of the deceased brother are alive. It is contended that the disputed entry no.1092 in favour of the petitioners are against the statutory provisions of Hindu Succession Act, 1956 and against the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. It is also contended that so called documents of the partition are forged one. It is also contended that the contesting respondent continue to own and possess the land in question exclusively all through out and only when the real brothers of deceased Mr. Hirubhai Kalidas Patel i.e. present petitioners herein started to assert some rights on the basis of said entry no.1092 and attempted to disturb the possession of the respondent, the

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entry was immediately challenged and after considering all documents and considering the position in law, the order impugned are passed by the authority below, which is proper and the present petition deserves to be dismissed.

4. In affidavit-in-rejoinder, the petitioner no.3 has reiterated the facts that the land was purchased in the name of late Mr.Hirubhai Kalidas Patel as he was the only major son of late Kalidasbhai Ranchhoddas Patel and the petitioners were minors. He has also reiterated the fact that the receipt entry was mutated was proper one and partition deed is genuine one.

5. Heard learned advocate Mr.N.K.Majmudar for the petitioners, learned AGP Ms.Dhwani Tripathi for the respondent State and learned advocate Mr.S.R.Patel for the private respondents at length and perused the material on record.

6. Learned advocate Mr.N.K.Majmudar for the petitioners have reiterated the facts which are narrated hereinabove and the contents of the affidavit-in-rejoinder. He has submitted that the land was purchased in the name of Mr.Hirubhai Kalidas Patel as he was being a major son at the relevant point of time and was karta of the Hindu Undivided Family and other brothers were minor at the relevant time. He has submitted that after his death entry no.1092 dated 16.04.1987 came to be mutated as an heirship, he has also submitted that thereafter, name of heirs of Mr.Shivlal Kalidas came to be mutated vide entry no.1931.

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He has also submitted that Mr.Hirubhai Patel was tenant for the entire family. He has also submitted that the contesting respondents have preferred an appeal against only one entry being of No.1092 and yet the Deputy Collector has cancelled other entries, which is illegal one. He has also submitted that in the earlier round, the heirship entry was certified and therefore it was beyond the scope of the other revenue authorities to cancel the same qua the present petitioners. He has also submitted that even in case of holding of land in the name of elder brothers, as per the Government Resolution of the year 1996 (page 64 of the compilation), the names of other brothers needs to be mutated in the revenue records. He has submitted that in view of these facts also the mutation of the name of the present petitioners vide heirship entry no.1092 was legal one and there was no need to interfere with the said entry. He has also submitted that there was no issue of tenancy right before the revenue authority. He has submitted that the entire exercise undertaken by the private respondent was not bonafide and the learned Special Secretary Revenue Department (hereinafter referred to as "the SSRD") has committed error in allowing the revision application filed by the contesting private respondents. He has prayed to allow the present application by setting aside the impugned order.

7. Learned AGP Ms.Dhwani Tripathi appearing for the respondent State submits that the Government Resolution produced at page 64 is applicable only if the land is herited but

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cannot be applied to the facts of the present case. It is also submitted by learned AGP that deceased Mr.Hirubhai has acquired the land in his individual capacity and it was not inherited by him from his ancestors. According to the learned AGP, it was a self acquired property of Mr.Hirubhai and therefore, the said Government Resolution would not be applicable to the facts of the case of the petitioners. Learned AGP has also submitted that the earlier entries in the name of the brothers of the deceased Mr.Hirubhai being illegal has rightly been cancelled by the learned Deputy Collector which has been confirmed by the learned SSRD. She has supported the impugned order of the learned SSRD and has prayed to dismiss the present petition.

8. Learned advocate Mr.S.R.Patel appearing for the respondent nos.6 and 7 has also submitted that the land in question was a property purchased by the deceased Mr.Hirubhai and it was not an ancestral property. He has submitted that late Mr.Hirubhai was cultivating the land as he got tenancy right as per the certificate under Section 32 of the Tenancy Act. He has also submitted that the concerned Government Resolution would not be applicable to the facts of the present case. He has also submitted that the present petitioners being uncles, cannot be entered as heirs of deceased Mr.Hirubhai. He has also submitted that the Civil Suit is filed and therefore the Civil Court can decide the rights of the parties independently. He has supported the impugned order and has prayed to dismiss

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the present petition.

9. In the rejoinder learned advocate Mr.N.K.Majmudar for the petitioners has vehemently submitted that the entry no.1092 was not challenged within a reasonable period. He has also submitted that the private respondents have filed an appeal no.8 of 2006, challenging the entry no.1092 dated 16.04.1987 after a period of 19 years and therefore the said appeal came to be rejected by the Deputy Collector, Bharuch by order dated 22.05.2006. He has submitted that the same remained unchallenged for a period of about four years and in another round of proceedings of appeal, when the consequential entry nos.1931 and 1982 of 16.04.1987 was challenged along with earlier entry no.1092 dated 16.04.1987, the Deputy Collector in exercise of powers passed order dated 08.03.2010 whereby the entry no.1092 dated 16.04.1987 was disturbed. He has also submitted that this order of the Deputy Collector was set aside on the ground of Res Judicata by higher authority and the same has been disturbed by the learned SSRD, which is not permissible in the eyes of law. He has prayed to allow this petition.

10. Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it reveals that the lands in question were initially given to late Mr.Hirubhai Kalidas Patel. It also emerges from the records that due to his death, the heirship entry no.1092 came to be

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mutated on 16.04.1987, which came to be certified on the basis of the kabulatnama and the pedhinama vide order dated 18.05.1987. It also reveals from the orders passed by the subordinate authorities that the land in question was given to the deceased Mr.Hirubhai Patel in the year 1961.

11. Now, the stand of the petitioners is that at the relevant point of time, Mr.Hirubhai Kalidas Patel was only major son and others were minors. The land was purchased in the name of Mr.Hirubhai Patel. In this regard, they have placed reliance upon one kabulatnama of Mr.Kalidas Ranchhodbhai Patel, which is at page 93 and 94 of the compilation, which is made before the then Talati Cum Mantri, Gram Panchayat, Kalam on which basis, it also reveals from the page no.95, which is kabulatnama, which has been signed by one Vanilaben Hirubhai Patel, Bhanuben Hirubhai Patel, wherein it has been specifically averred that late Mr.Hirubhai has purchased the land in question from the property of his father and as the other brothers were minors, it was purchased in the name of Mr.Hirubhai Patel and therefore, there is share of Mr.Shivlalbhai Kalidas Patel, Mr.Manilal Kalidas Patel and Mr.Narsinhbhai Kalidas Patel in the said land. This kabulatnama is also made before the Talati Cum mantri, Kalam. On this basis the entry no.1092, have been came to be entered as an heirship entry. At this juncture, it is relevant to refer the Venchani Khat (partition deed) which is on page no.54 of the compilation. The same has been objected and has

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been alleged to be fabricated by the private respondents, it appears from the recital thereof that it was made in the year 1984 and the age of Mr.Hirubhai Kalidas Patel has been shown as 54 years, age of Mr.Shivlalbhai Kalidas Patel has been shown as 40 years, age of Mr.Manilal Kalidas Patel has been shown as 36 years and age of Mr.Narsinhbhai Kalidas Patel has been shown as 34 years. Thus, if this factor is taken as it is, then, it would reveal that the birth of Mr.Kalidas might be in the year 1930, the birth of Mr.Shivlalbhai might be in the year 1944, the birth of Mr.Manilal might be in the year 1948 and the birth of Mr.Narsinhbhai might be in the year 1950. Now, the land in question is issued in the name of Mr.Hirubhai Patel in the year 1961. Therefore, in the year 1961 the age of Mr.Shivlalbhai would be 17 years, age of Mr.Manilal would be 13 years and age of Mr.Narsinhbhai would be 11 years. These factors supports the version of the petitioners that when the land in question was purchased in the name of Mr.Hirubhai Kalidas Patel, they were minors.

12. Further, in view of the kabulatnama before the revenue authority, the land in question was purchased from the properties of Mr.Kalidas i.e. father of the deceased Mr.Hirubhai Kalidas Patel. Under these circumstances, the provisions of the Government Resolution dated 15.03.1996 which is at page 64 of the compilation, would be applicable and the name of younger brothers needs to be entertained in the revenue records. Now, admittedly, in this case, the names

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of the present petitioners have been added as heirs on the basis of Kabulatnama and heirship entry has been made accordingly.

13. It also emerges from the records that the private respondents herein have filed appeal no.8 of 2006 challenging the entry no.1092 dated 16.04.1987 i.e. after a period of 19 years thereof and the said appeal came to be rejected by the Deputy Collector, Bharuch by order dated 22.05.2006. It also reveals from the records that above order remained unchallenged for the period of four years and in another round of proceedings of appeal, when consequential entry nos.1931 and 1982 were challenged, the Deputy Collector in exercise of powers passed an order dated 08.03.2010 whereby entry no.1092 dated 16.04.1987 was disturbed, against that order, the appeal no.45 of 2010 came to be filed and in that matter the order of the Deputy Collector dated 08.03.2010 was quashed and set aside on the ground of Res Judicata. This order of the Collector is in consonance with law. The impugned order passed by the learned SSRD setting aside the order of the Collector and restoring the order of the Deputy Collector in regard to the alleged entry is not sustainable in the eyes of the law. Therefore, the impugned order of the learned SSRD needs to be quashed and set aside. However, at the same time, it needs to be observed that since the Civil Suit is pending regarding the adjudication of civil rights of the parties, the same may be decided by the Civil Court in accordance with law and on the basis of the evidence made

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available before it.

14. In view of the above, the present petition is allowed. The impugned order passed by the respondent no.1 dated 14.03.2012 (22.02.2012) passed in Revision Application Nos.95 of 2010 and 01 of 2011 are hereby quashed and set aside. However, it is made clear that this order will not come in the way of the Civil Court where the proceedings are pending for adjudication of civil rights of the parties and the Civil Court shall decide the lis between the parties in accordance with law and on the basis of the evidence that may be laid by the parties in such proceedings.

Rule is made absolute. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) URIL RANA