State Of Gujarat vs Valibegum Hamid Shaikh
2023 Latest Caselaw 762 Guj

   C/LPA/347/2022                          JUDGMENT DATED: 31/01/2023




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/LETTERS PATENT APPEAL NO. 347 of 2022
                           In
       R/SPECIAL CIVIL APPLICATION NO. 730 of 2020

                              With

        CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
                            In
         R/LETTERS PATENT APPEAL NO. 347 of 2022

                              With

         R/LETTERS PATENT APPEAL NO. 124 of 2023
                            In
         SPECIAL CIVIL APPLICATION NO. 731 of 2020

                              With

CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
                      1 of 2022
                          In
      R/LETTERS PATENT APPEAL NO. 124 of 2023
                          In
      SPECIAL CIVIL APPLICATION NO. 731 of 2020

                              With

        CIVIL APPLICATION (FOR STAY) NO. 2 of 2022
                            In
         R/LETTERS PATENT APPEAL NO. 124 of 2023
                            In
        SPECIAL CIVIL APPLICATION NO. 731 of 2020
=============================================
                        STATE OF GUJARAT
                             Versus
                    VALIBEGUM HAMID SHAIKH
=============================================
Appearance:
MR K.M. ANTANI, ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2,3,4
MR MIHIR JOSHI, SENIOR ADVOCATE WITH
MR MOHMEDSAIF HAKIM(5394) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,3,4,5,6,7,8,9
=============================================


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      C/LPA/347/2022                          JUDGMENT DATED: 31/01/2023




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

                         Date : 31/01/2023
                      COMMON ORAL JUDGMENT

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

1. Considering the averments made in Civil Application

No.1 of 2022 in Letters Patent Appeal No.124 of 2023,

delay of 235 days occurred in filing the appeal is

condoned. Civil Application No.1 of 2022 is allowed.

2. In these intra-court appeals, the order 6.7.2021

passed on Civil Application No.1 of 2021 in Special Civil

Application No.730 of 2020 and Civil Application No.1 of

2021 in Special Civil Application No.731 of 2020 is under

challenge by the State.

3. Though matters are listed for admission by consent

of learned advocates appearing for the parties, they are

taken up for final disposal.

4. The subject matter of the present appeals revolves

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

around land bearing Old Survey No.322, New Survey

No.505, admeasuring total area of Hectare 110-88-50

sq.mtrs. (P.K.A.) of Mouje: Abhva, Taluka: Majura,

District: Surat and Old Survey No.401, New Survey

No.507, admeasuring total area of Hectare 71-42-64

sq.mtrs. (P.K.A.) of Mouje: Abhva, Taluka: Majura,

District: Surat.

5. The order dated 30.12.2019 passed by the Collector

and District Magistrate, Surat has been challenged in

Special Civil Application No.730 of 2020 and Special Civil

Application No.731 of 2020 whereunder the writ

applicants sought for an ad-interim relief as prayed for in

paragraph (25)(D) of the said petition which is to the

following effect:

"(D) Pending admission hearing and till final disposal of the present petition, THIS HON'BLE COURT MAY BE PLEASED TO stay the execution, implementation and operation of the impugned order dated 30/12/2019 passed by the Respondent No.2 - the Collector, Surat in Suo- Moto Revision No.13 of 2017 (Annexure-"A)."

6. A perusal of the above prayer would indicate that

the execution, implementation and operation of the

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

impugned order dated 30.12.2019 was sought for being

stayed. Under the order dated 30.12.2019, the Collector

who had registered suo motu revision against the order

dated 24.10.2017 passed by Mamlatdar had cancelled

Mutation Entry No.4471 and had directed the

jurisdictional Mamlatdar to mutate the revenue entry in

respect of said land in the name of Government as

occupier as it was existing prior to order dated

24.10.2017. The grievance of the writ applicants was that

said land was owned and possessed by them and in

respect of the said land, there was already a suit filed viz.

RCS No.612 of 2007 and an application filed under

Exh.40, the plaintiffs had prayed that the Mamlatdar may

be directed to mutate the names of legal heirs of Nawab

in the revenue records and an order had been passed on

2.11.2010 below Exh.40 leaving it open to the revenue

authority to decide the issue so far as the revenue entries

were concerned and pursuant to the same, the Mamlatdar

by order dated 24.10.2017 had ordered by mutating the

revenue entry in the revenue records in name of the

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

plaintiffs / writ applicants subject to the outcome of the

civil suit. It is further contention of the writ applicants

that accordingly, name of the Government that was

reflected in the revenue records was deleted as occupier

with a condition such entry would be subject to outcome

of RCS No.612 of 2007. Thereafter on 26.10.2017, the

original petitioner Nos.1 to 8 executed a registered sale

deed in favour of the original petitioner Nos.9 to 19

conveying the property in their favour and the suit which

was pending viz. RCS No.612 of 2007 also came to be

decreed in favour of the original petitioner Nos.1 to 8 by

judgment and decree dated 15.12.2017.

7. In the meanwhile, against the order dated

24.10.2017 of the Mamlatdar, the Collector initiated suo

motu proceedings in SMR No.14 of 2019 and when it was

pending, the State Government preferred an appeal being

RCA No.3 of 2018 against judgment and decree passed in

RCS No.612 of 2007 which also came to be dismissed by

judgment and decree passed on 23.7.2019 which

triggered the legal heirs of late Nawab to file an

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

application to the Mamlatdar to mutate their names as

owners and possessors of the land pursuant to the

judgment and decree passed by the Trial Court and

affirmed by the Appellate Court. The subsequent

purchasers, i.e. original petitioner Nos.9 to 19 also filed

an application to the Mamlatdar to mutate their names on

the basis of registered instruments. In the meanwhile,

SMR No.14 of 2019 came to be adjudicated and

impugned order dated 30.12.2019 came to be passed.

Hence, Special Civil Application No.730 of 2020 and

Special Civil Application No.731 of 2020 have been filed.

8. The State not being satisfied by the judgment and

decree of the first Appellate Court passed in RCA No.3 of

2018 supra dated 23.7.2019 filed a second appeal being

F/SA No.7180 of 2020 with an application for condonation

of delay in filing the appeal. Undisputedly, said

application for condonation of delay came to be allowed

and the application filed by the State for the stay of the

judgment and decree in Civil Application No.1 of 2020

has been disposed of by the second Appellate Court vide

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

order dated 10.1.2023 whereunder an order of status quo

has been directed to be maintained by the parties till final

disposal of the second appeal.

9. In view of the order dated 30.12.2019 passed by

Collector in SMR No.14 of 2019, as already noticed

hereinabove, writ applicants have filed SA No.730 of 2020

and SA No.731 of 2020 challenging the said order and

also direction was sought for to consider the applications

dated 19.9.2019, 23.9.2019 and 10.10.2019 whereunder

they have sought for mutating the revenue records in

respect of the subject land in their names by virtue of the

judgment and decree passed by the Trial Court and

affirmed by the Appellate Court and the application filed

seeking mutation of revenue records was not being

considered by the jurisdictional Mamlatdar. It is in this

background Civil Application No.1 of 2021 came to be

filed in Special Civil Application No.730 of 2020 and

Special Civil Application No.731 of 2020 by the writ

applicants. The prayers sought for in said applications are

to the following effect:

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

"(A) THIS HON'BLE COURT MAY BE PLEASED TO issue the orders and directions to comply with the orders dated 10/01/2020 and 06/07/2021in captioned Special Civil Application No.730 of 2020 and Civil Application No.1 of 2021 therein.

(B) THIS HON'BLE COURT MAY BE PLEASED TO issue the orders and directions to comply with the order dated 06/07/2021 in captioned Special Civil Application No.730 of 2020 and as per representation / application dated 19/09/2019, 23/09/2019 and 10/10/2019 at the earliest and suspend the operation of the impugned mutation entry no.4910 dated 20/02/2020.

(C) THIS HON'BLE COURT MAY BE PLEASED TO issue necessary orders and directions against the Respondents for willful and deliberate non- compliance of the orders of this Hon'ble Court and defiance of not filing any reply/response before this Hon'ble Court;

(D) Pending, admission, hearing and till final disposal of the present Application, THIS HON'BLE COURT MAY BE PLEASED TO direct the concerned revenue authorities to comply with orders dated 10/01/2020 and 06/07/2021 passed in Special Civil Application No.730 of 2020 and Civil Application No.1 of 2021 in Special Civil Application No.730 of 2020 and thereby enter the names of the Applicants in revenue record."

10. The interim relief which was sought for by pressing

into service by filing Civil Application No.1 of 2021 and by

order dated 10.1.2020 came to be passed by the learned

Single Judge granting the prayer sought for. It reads:

"[5] In view of the aforesaid, the mutation entry No. 4910 dated 20.02.2020 and certified on 01.08.2020 and

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

its effect is ordered to be stayed till the final disposal of the main petition. As it is already ordered under order dated 10.01.2020 to consider and decide the applications dated 19.09.2019, 23.09.2019 and 10.10.2019, it is further directed that the orders be passed and communicated to the applicants expeditiously within a period of four weeks from the date of receipt of copy of this order."

11. It is pursuant to this order dated 10.1.2020, the

jurisdictional Mamlatdar passed an order dated 20.2.2020

which, according to the writ applicants, was contrary to

the order dated 10.1.2020. It is the order dated 6.7.2021

which has been passed by the learned Single Judge on

Civil Application No.1 of 2021 directing that the

applications dated 19.9.2019, 23.9.2019 and 10.10.2019

be decided which has been questioned in these appeals

by the State.

12. As noticed hereinabove, the issue is relating to

Mutation Entry No.4910 dated 20.2.2020 (in second right

column) and certified on 1.8.2020 reflecting the civil

court decree and the steps taken pursuant thereto subject

matter of this appeal. When the issue relating to mutation

entry which is the larger issue pending in Second Appeal

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

No.557 of 2022 and the entire cause of action for the writ

applicants to seek for mutation entry is based on the

judgment and decree dated 15.12.2017 passed in RCS

No.612 of 2007 and confirmed in RCA No.3 of 2018 dated

23.7.2019 and said judgment and decree is now pending

in Second Appeal No.557 of 2022, the order passed

thereon will have to be necessarily followed by the

revenue authorities. As such, the mutation entry which

has been ordered on 20.2.2020 as per Mutation Entry

No.4910 and certified on 1.8.2020 which reflects the

history of the litigation in the revenue records pertaining

to the subject land which could not have been found fault

with by the learned Single Judge that too at the interim

stage. Hence, we are of the considered view that order of

the learned Single Judge requires to be set aside and

accordingly, we set aside the same and dismiss Civi

Application No.1 of 2021.

13. Question of making further entry in the revenue

records would not arise in view of the issue relating to

the mutation entry would necessarily depend upon the

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

judgment and decree passed by the Trial Court

adjudicating Second Appeal No.557 of 2022 and we make

it expressly clear that any entry made in respect of the

subject land would be subject to the final result of Second

Appeal No.557 of 2022.

14. In fact, we may also notice that prior to order dated

24.10.2017 passed by Mamlatdar entering the name of

plaintiffs (in RCS No.612 of 2007) in the revenue records,

it was in the name of Government and that has been done

by the order dated 10.2.2020 which cannot be found fault

with, that too when same appeal filed by the State has

been admitted and status quo has been granted.

15. Second Appeal No.557 of 2022 has been admitted

vide order dated 10.1.2023 by framing the substantial

questions of law and while disposing of Civil Application

(For Stay) No.1 of 2020, the observations have been

made at paragraph 17 directing the parties to maintain

status quo with regard to the suit property till final

disposal of the second appeal and it has also been further

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

observed that in view of the observations made therein

(paragraph 17), Civil Application for stay succeeds and

same is disposed of as allowed. In other words, the

judgment and decree passed by the Trial Court and

affirmed by the lower Appellate Court has been stayed

subject to the observations made in paragraph 17 in

Second Appeal No.557 of 2022.

16. The observations made during the course of this

judgment is limited for the purpose of Mutation Entry

No.4910 dated 31.7.2020 reflected in the revenue records

on 20.2.2020.

17. The contention of Mr. Mihir Joshi, learned Senior

Advocate that by virtue of the judgment passed by the

Trial Court and affirmed by the Appellate Court, the

names of the writ applicants should be continued to be

reflected in the revenue records, subject to the result of

Second Appeal No.557 of 2022, though an argument

which looks attractive in the first blush is not so for the

simple reason that judgment and decree which has been

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

passed by the Trial Court and affirmed by the lower

Appellate Court is now seized before this Court in Second

Appeal No.557 of 2022, wherein an order has been

passed on 10.1.2023 that parties should maintain status

quo. Thus, order passed on 20.2.2020 (in second right

column) by the jurisdictional Mamlatdar reflecting history

of the litigation pertaining to the subject land as reflected

in the revenue entries if continued, no hardship, much

less inconvenience, much less prejudice to the writ

applicants and as such contention of Mr. Joshi is not

acceptable. In fact, we are perforced to make observation

that prayer sought for in Special Civil Application No.730

of 2020 and Special Civil Application No.731 of 2020

would not survive for consideration in view of the

aforesaid order. However, it is for the learned Single

Judge to take appropriate steps in pending Special Civil

Application No.730 of 2020 and Special Civil Application

No.731 of 2020.

C/LPA/347/2022 JUDGMENT DATED: 31/01/2023

18. Hence, we proceed to pass following

JUDGMENT

(i) Letters Patent Appeal No.347 of 2022 and Letters

Patent Appeal No.124 of 2023 stand allowed in

above terms;

(ii) Order 6.7.2021 passed on Civil Application No.1 of

2021 in Special Civil Application No.730 of 2020 and

Civil Application No.1 of 2021 in Special Civil

Application No.731 of 2020 by the learned Single

Judge stands set aside and said applications stand

dismissed;

(iii) All pending applications in this appeals stand

consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH SHASTRI, J) Bharat