Gujarat High Court

Hiraben Wd/O Kalidas Somabhai vs The Mamlatdar, Vejalpur on 10 March, 2022

Bench: A. P. Thaker

     C/SCA/8292/2019                                      ORDER DATED: 10/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 8292 of 2019

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                       HIRABEN WD/O KALIDAS SOMABHAI
                                   Versus
                          THE MAMLATDAR, VEJALPUR
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Appearance:
for the Petitioner(s) No. 2,3,4,5,6
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1,2,3,4,5,6
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 3
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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 CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                Date : 10/03/2022
                                 ORAL ORDER

1. Being aggrieved and dissatisfied with order dated 17.4.2017 passed in RTS/Appeal/Case No.92/2016 passed by City Deputy Collector (West), Ahmedabad, the petitioner has preferred this petition under Article 226 of the Constitution of India.

2. The brief facts giving rise to the present petition are that the petitioners are heirs of Late Somabhai Vastabhai. Late Vastabhai had two sons, viz., Vashrambhai and Somabhai. Late Vastabhai was owner of land bearing Revenue Survey No.604/1 amdeasuring 5666 sq.mtrs. and also of land bearing Revenue Survey No.604/3 admeasuring 5554 sq.mtrs. situated at Village-Sarkhej, District-Ahmedabad. After death of Vastabhai, partition of the aforesaid lands had taken place on the basis of compromise between Vashrambhai and Somabhai. Accordingly, land bearing Revenue Survey No.604/1 came to the share of Somabahi and land of Revenue Survey No.604/3

C/SCA/8292/2019 ORDER DATED: 10/03/2022

came to the share of Vashrambhai. Predecessor of the petitioners filed Civil Suit No.218 of 1985 before Civil Judge, Narol, for declaration that plaintiffs be declared as owners and having possession of the land of Revenue Survey No.604/1 and defendant therein may not disturb their possession. The suit was decreed in favour of the plaintiffs vide judgment and decree dated 31.3.2008. The same came to be challenged by the defendant by filing Regular Civil Appeal No.16 of 2012, which also came to be dismissed by 10 th Additional District Judge, Ahmedabad at District Court Rural, Mirzapur, Ahmedabad. On the basis of the decree passed by Civil Court, the petitioners approached revenue authority for mutating their names in the revenue records in respect of land bearing Revenue Survey No.604/1. The revenue authority recorded entry no.5234 dated 2.4.2009 in Form No.6 on the basis of judgment of the Civil Court, however, it was reflected in secondary rights and not as primary rights and similar entry was being entry No.6419 dated 19.12.2015 was mutated, wherein also name of the defendant continued to be shown in primary rights. Against that entry, the petitioner approached respondent no.1 by filing an appeal under Rule 108 (5) of Gujarat State Revenue Rules. The same came to be dismissed by impugned order dated 17.4.2017.

3. Heard learned Senior Counsel Mr.G.M.Joshi assisted by learned advocate Mr.Asthawadi for the petitioners and learned AGP Mr.Kanara for the respondent-State. Perused the material placed on record.

4. While referring to aforesaid factual aspects, learned Senior Counsel Mr.G.M.Joshi for the petitioners submitted that

C/SCA/8292/2019 ORDER DATED: 10/03/2022

when there was a decree passed by the Civil Court regarding rights of the petitioners then it is incumbent upon the revenue authorities to mutate the names of the petitioners in primary rights and not in secondary rights. While referring to the impugned order, he has submitted that learned Deputy Collector has not even considered the material placed on record, which includes copy of the decree. He has submitted that though copy of decree was placed on record, learned Deputy Collector has observed in his order that no evidence is produced as to whether any decree is drawn or not. He has also submitted that Deputy Collector has committed serious error of law in not implementing the decree of the Civil Court. He has submitted that Deputy Collector ought to have allowed the appeal filed by the petitioners and, therefore, he has prayed to allow present petition.

5. Learned AGP Mr.Kanara for the respondent-State has submitted that considering the material placed on record, appropriate order may be passed.

6. Having considered the submissions made on behalf of both sides coupled with material placed on record, it is clear that there was partition of property of late Vastabhai on agreement between Vashrambhai and Somabhai. It is also revealed from record that the land bearing Revenue Survey No.604/1 came to the share of Somabhai. The record also reveals that decree has been passed in favour of the plaintiffs relating to land bearing Revenue Survey No.604/1, wherein it has been specifically held that heirs of Somabhai are in actual possession of the land of Revenue Survey No.604/1 and, on the basis of evidence on record, learned 7 th Additional Senior Civil Judge, Ahmedabad Rural, has passed judgment and decree on

C/SCA/8292/2019 ORDER DATED: 10/03/2022

31.12.2008. Against said decree, defendant of that Suit filed Regular Civil Appeal No.14 of 2012, which, as per Annexure-C, came to be dismissed on 16.10.2018 by confirming the order of learned Additional Senior Civil Judge. Thus, Civil Court, after recording evidence of both sides, has passed decree in favour of the petitioners and it is incumbent duty of the revenue authority to make necessary entries in the revenue records on the basis of the decree passed by Civil Court. When the Civil Court has clearly held that petitioners are in actual possession of the land in question and defendants herein have no right over the suit property and restrained them from interfering with the possession of the plaintiffs, it is the duty of the revenue authority to show the names of the petitioners in the column of primary rights in revenue record. Unfortunately, in the present case, Deputy Collector has tried to interpret decree of the Civil Court and rejected the appeal of the petitioners. It is pertinent to note that along with appeal the petitioners have also produced copy of the decree and yet without looking into those papers and without applying his mind, learned Deputy Collector (West), Ahmedabad, has observed in his order dated 17.4.2017 that no evidence has been produced as to whether any decree has been drawn or not. It appears that learned Deputy Collector, for the reasons best known to him, has not even referred to the material placed on record by the petitioners. Learned Deputy Collector has also lost sight of legal provisions that the revenue authority is bound to give effect to the order of the Civil Court in revenue records. Under these circumstances, when Deputy Collector has failed to perform his duty in accordance with law, impugned order of the Deputy Collector is not sustainable in the eyes of law.

C/SCA/8292/2019 ORDER DATED: 10/03/2022

7. In view of aforesaid discussion, present petition is allowed. Impugned order dated 17.4.2017 passed in RTS/Appeal/Case No.92/2016 passed by City Deputy Collector (West), Ahmedabad, is quashed and set aside. Consequently, respondent authority is directed to give effect to the decree of Civil Court and enter the names of the petitioners in revenue record with regard to land bearing Revenue Survey No.604/1 in the column of primary rights. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK