Takhubha Dajiraj Jadeja vs State Of Gujarat
2023 Latest Caselaw 381 Guj

       C/LPA/137/2019                            ORDER DATED: 13/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 137 of 2019

            In R/SPECIAL CIVIL APPLICATION NO. 18492 of 2014

                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                In R/LETTERS PATENT APPEAL NO. 137 of 2019
==========================================================
                        TAKHUBHA DAJIRAJ JADEJA
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1,2,2.1,2.2,2.3,2.4
MS SHRUNJAL SHAH, AGP for the Respondent(s) No. 1 & 2
MR JIGAR P RAVAL(2008) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
           ARAVIND KUMAR
           and
           HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                             Date : 13/01/2023

                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. Order dated 26.10.2018 passed in Special Civil

Application No.18492 of 2014 is challenged in this intra

court appeal.

2. We have heard arguments of Mr.P.P.Majmudar,

learned counsel appearing for the appellants, Ms.Shah,

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learned Government advocate appearing for respondent

Nos.1 and 2 and Mr.Jigar Raval, learned counsel appearing

for respondent No.3. Perused the record.

3. Being conscious of the fact that in intra court

appeals, interference being limited, we have examined the

facts on hand. Appellants under three sale deeds executed

on 24.5.2007 by Mayank Patel through his power of

attorney holder Navinbhai purchased half share including

right, title and interest of undivided half share in Survey

Nos.463/1, 464/2, 461/1, 471/2 and 468 of village

Sherkhi, Taluka District Vadodara (hereinafter referred as

the "subject property"). On purchase of said property, they

sought for revenue entries being mutated in their names.

Accordingly, revenue entries came to be mutated on

31.5.2007 being entry Nos.8729 and 8730. However, on

account of objections having been lodged, it was treated as

disputed case by the jurisdictional Mamlatdar. On 4.4.2008,

he cancelled entries. This was challenged by the appellants

before the Deputy Collector in an appeal which came to be

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allowed on 31.1.2010 and remanded the matter back to the

Mamlatdar. On such remand being made, the Mamlatdar

upheld the entries on 9.6.2010. This order was upheld by

the Deputy Collector on 31.1.2013. Being aggrieved by the

same, revision application was filed by the third respondent

before the Collector which was allowed on 16.5.2014.

Challenging the correctness of the said order, revision

application was filed before the SSRD by the appellants

herein which came to be dismissed on 21.10.2014. Being

aggrieved by the said order, they approached the learned

Single Judge in Special Civil Application No.18492 of 2014

which has been dismissed by order dated 26.10.2018 and

the order of the SSRD came to be upheld. Hence, this

appeal.

4. It is the contention of Mr.Majmudar, learned

counsel appearing for the appellants that revenue entries

having been certified by the Mamlatdar and upheld by the

Deputy Collector, there was no reason for the said orders

being interfered with by the Collector, more particularly,

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when the appellants had claimed the right of mutation on

the strength of registered sale deeds dated 24.5.2007. He

would also submit that revenue authorities are bound by

the registered sale deeds and they cannot shy away from

mutating the revenue record when there are registered sale

deeds. Hence, he would contend that orders passed by the

Collector, SSRD and learned Single Judge are contrary to

the established law which requires to be set aside by this

Court. He would also hasten to add that insofar as right of

possession which was claimed by the third respondent by

filing an application under Order 39, Rule 1 and 2 CPC in

the suits filed i.e. Special Civil Suit Nos.302 and 303 of

2007 came to be allowed by learned trial Judge which

landed before this Court in Appeal from Order No.377 of

2011 wherein it was agreed that interim relief granted by

learned Single Judge in the said appeal on 19.10.2011 i.e.

suspending operation and implementation of the order

passed by the learned trial Court to be continued. Hence, it

would not lie in the mouth of the third respondent to

contend anything contrary to same. Hence, he prays that

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appeal being allowed.

5. Per contra, Ms.Shah, learned Assistant

Government Pleader would support the impugned order and

contend that learned Single Judge having opined that

entries made in the revenue record would be subject to the

result of the civil suit ought to have set aside the order of

SSRD and restored the order of Mamlatdar.

6. Mr.Jigar Raval, learned counsel appearing for the

third respondent would not only support the impugned

orders but would also contend that there is already suits

filed by the third respodnent i.e. Special Civil Suit Nos.302

and 303 of 2007 for cancellation of the sale deeds and as

such, question of interfering with the well reasoned order

passed by the Collector, affirmed by the SSRD and

confirmed by learned Single Judge would not warrant

interference at the hands of this Court. Hence, he prays for

rejecting the appeal.

7. Having heard learned counsel appearing for the

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parties and on perusal of the record, we notice that

appellants had sought for mutation of entries in respect of

the subject land on the strength of the registered sale deeds

dated 24.5.2007. When there is a registered instrument

executed by the vendor either by himself or through power

of attorney holder in favour of the purchaser, contents of

the registered sale deed are presumed to be true and correct

unless rebutted vide section 91 of the Evidence Act. It is

also trite law that when there is registered instrument i.e.

sale deed on the strength of which revenue entries are

sought for being mutated, the revenue authority cannot

shirk from their responsibility of mutating entries nor they

can enter into domain of examining any contention raised in

that regard by a party objecting to such entry. This view

gets support from the judgment of this Court in the case of

Nathubhai Meraman Darji Vs Special Secretary,

reported in 1996 (3) GCD 691 and Agricultural Produce

Market Committee, Khambhat Vs Deputy Mamlatdar,

Khambhat and others, reported in 2007 (1) GLR 328. In

teeth of the said authoritative principles and having regard

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to section 135-D of the Gujarat Land Revenue Code 1879,

the Mamlatdar had mutated the revenue record initially on

31.5.2007 in the names of the appellants and subsequently,

on order of remand being passed on 9.6.2010 this order in

fact came to be upheld by the Deputy Collector on

31.1.2013. There was no error committed by these two

officers i.e. office of the Mamlatdar and Deputy Collector.

However, revision came to be entertained by the Collector at

the instance of the third respondent herein who was none

other than a person who had sold the subject property to

the appellants through power of attorney holder

Mr.Navinbhai. As to whether, said power of attorney holder

had right to sell property and whether vendor Mr.Mayank

Patel had any right to sell his undivided half share i.e.

subject property in favour of the appellants cannot be

subject matter of scrutiny or adjudication by the revenue

authorities. Third respondent, being conscious of these

facts, has initiated proceedings before the Civil Court by

filing a suit for declaration in respect of the suit property

and has also sought for cancellation of the sale deeds dated

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24.5.2007 said to have been executed by his power of

attorney holder in favour of the appellants in Special Civil

Suit Nos.302 and 303 of 2007 which are pending before the

court of Additional Civil Judge, Senior Division, Vadodara.

Said pendency cannot be used as lever to upset revenue

entries made by the revenue authority pursuant to the

registered sale deeds. This Court in the case of

Jashwantlal Raval vs State of Gujarat and another,

reported in 2009 (2) GLR 1743 has rightly observed that

merely by filing the suit in the Civil Court and by getting the

said lis pendens registered, petitioner would not acquire any

right which is required to be recorded in the revenue record

of the village maintained by the village accountant. It is

also trite law that revenue entry would not confer any title.

It is only a document for recovery of tax. If such entries are

made and civil litigation is pending in respect of the said

property, it is needless to state that any such entries made

by the revenue autority would be subject to result of such

civil suit.

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8. In that view of the matter, we are of the

considered view that Collector, SSRD as well as learned

Single Judge committed an error in ignoring the glaring

aspect of appellants being title holders of the subject

property by virtue of registered sale deeds dated 25.4.2007

and they had right to seek for mutation of revenue record in

their favour. As such, said orders cannot be sustained and

accordingly, they are set aside.

9. In this appeal, it has been brought to our notice

that suits in question having been filed on 4.7.2007, it

seems that an application under Order 39, Rule 1 and 2

CPC seeking temporary injunction was filed before the

learned trial Judge which resulted in an order of temporary

injunction being granted in favour of the plaintiff therein i.e.

third respondent herein. Being aggrieved by the said orders,

two appeals were filed, one Appeal from Order No.377 of

2011 before this Court and on account of lack of pecuniary

jurisdiction, another appeal before the District Court being

Misc. Civil Appeal No.52 of 2012 (still pending). Appeal from

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Order No.377 of 2011 came to be disposed of by this Court

on account of joint statement made by respective learned

advocates on 16.12.2022 whereunder they requested the

learned Single Judge adjudicating appeals not to decide the

present appeal on merits and requested learned Single

Judge that interim relief granted on 19.10.2011 to be

continued till final disposal of the suits. At the joint request

made and recording the same, learned Single Judge

accordingly disposed of the appeal. Virtually, this order

would also take within its sweep adjudication of Misc. Civil

Appeal No.52 of 2012 pending before learned District Court,

Vadodara. Learned District Judge adjudicating Misc. Civil

Appeal No.52 of 2012 and said Court is directed to dispose

of said appeal forthwith accordingly.

10. In both the appeals, undisputedly there was no

order of stay of further proceedings granted by either of the

appellate court i.e. either learned Single Judge of this Court

adjudicating Appeal from Order No.377 of 2011 or learned

District Judge adjudicating Misc. Civil Appeal No.52 of

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2012. Yet, for reasons best known, suits have been kept

pending by the learned trial Court for past 13 years without

any rhyme or reason. Such incidents have been noticed by

this Court on number of occasions. As such in exercise of

our powers under Article 226 of the Constitution of India,

following directions are issued to all the learned trial Judges

herein below.

             (1)      Whenever there is no stay of further
             proceedings       passed           by     a      higher           court,
             jurisdictional     trial       Court          shall       not        stall

proceedings but shall dispose of the proceedings pending before it on merits notwithstanding order passed by said Court having been challenged, unless orders have been passed staying further proceedings.

(2) If there is any order passed by a higher court either indicating there being stay of further proceedings or trial Court has been directed not to proceed with the trial, only in such circumstances, proceedings can be deferred and not otherwise.

(3) These directions shall be followed scrupulously and respective Principal District

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Judges / Principal Judges shall apprise all the Judicial Officers discharging duties in their jurisdiction of this order in the next review meeting without fail.

(4) Registry shall communicate this order to all the Presiding Officers of the State.

11. On account of there being no stay and still the

suits having not been proceeded which has been filed way

back in the year 2007 and more than 15 years having

passed, we deem it proper to fix time frame to the trial

Court to dispose of suits (Special Civil Suit Nos.302/2007

and 303/2007) pending before it in the following manner.

Plaintiff's evidence shall be concluded on or 18.1.2023 before.

Cross examination of plaintiff shall be 21.1.2023 concluded on or before.

Further evidence of plaintiff's witnesses if 24.1.2023 any shall be concluded on or before.

Cross examination of plaintiff's witnesses 27.1.2023 shall be concluded on or before.

Defendant's evidence if any shall be 31.1.2023 concluded on or before.

Cross examination of defendant's witnesses 2.2.2023 examined shall be concluded on or before. Further evidence of defendant's witnesses if 4.2.2023 any shall be concluded on or before.

C/LPA/137/2019 ORDER DATED: 13/01/2023

Cross examination of defendant's witnesses 7.2.2023 if any shall be concluded on or before.

Plaitniff's arguments shall be concluded on 10.2.2023 or before.

Defendant's arguments shall be concluded 13.2.2023 on or before.

Reply arguments if any shall be concluded 15.2.2023 on or before.

Learned trial Judge shall pronounce the 28.2.2023 judgment on or before.

12. It is made clear that learned advocates appearing

for both parties shall cooperate with the learned trial Court

for disposal of the suit within time frame fixed hereinabove

and learned trial Court would be at liberty to regulate its

proceedings by putting the party on such terms as it deems

fit. In the event of any adjournment being sought for

without any justifiable cause to the satisfaction of the

learned trial Court, it would be at liberty to put the parties

on such terms as it deems fit including imposing exemplary

costs for regulating the proceedings.

13. Mr.Majmudar, learned counsel appearing for the

appellants, on instructions, submits that by virtue of

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revenue entries being mutated in favour of the appellants,

they would not further alter or change the said mutation

entries and no steps would be taken by the appellants for

creating charge or encumbrance over the subject property

till the final disposal of the suits. His submission and

undertaking is placed on record.

14. For the reasons aforesaid, we proceed to pass the

following order.

                              ORDER


               (1)       Appeal is allowed.


               (2)       Order dated 26.10.2018 passed in

Special Civil Application No.18492 of 2014, order dated 21.10.2014 passed by SSRD and order dated 16.5.2014 passed by the Collector are hereby set aside and order dated 31.1.2013 as well as order dated 9.6.2010 passed by the Deputy Collector and Mamlatdar respectively are upheld. Jurisdictional Mamlatdar shall mutate revenue records to the names of appellants of the subject property expeditiously and at any rate within one week from the date of receipt of copy of this order which would be subject to the result and outcome of Special Civil Suit Nos.302 and

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303 of 2007.

(3) Principal District Judge, Vadodara shall take steps to list both suits i.e. Special Civil Suit No.302 of 2007 and 303 of 2007 before one Court to avoid conflicting decisions being rendered and said Court shall dispose of the suits within time frame fixed hereinabove.

(4) Non-receipt of copy of this order shall not be a ground for either of the parties or learned advocates or learned trial Court to proceed with the suits as ordered hereinabove.

(5) It is also made clear that observations made by this Court, by learned Single Judge or by revenue authorities in respect of mutation revenue entries relating to subject property shall not influence the learned trial Court while adjudicating the suits and same shall be decided and disposed of on merits and in accordance with law.

         (6)          No order as to costs.


         (7)          Registry is directed to communicate

this order to the jurisidictional Court.

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15. Civil Application (for stay) No.1 of 2018 stands disposed of accordingly.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J) H.M. PATHAN