Amitbhai Bipinbhai Sharma vs The State Of Gujarat
2023 Latest Caselaw 4268 Guj

     C/SCA/13694/2006                                  JUDGMENT DATED: 09/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13694 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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

2     To be referred to the Reporter or not ?                               NO

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 ?

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                        AMITBHAI BIPINBHAI SHARMA & 2 other(s)
                                       Versus
                         THE STATE OF GUJARAT & 10 other(s)
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Appearance:
MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1
for the Respondent(s) No. 7.1,7.2,8,8.1,9,9.1,9.2
MR PRANAV DHAGAT, AGP for the Respondent(s) No. 1,2,3,4
MR VIVEK B GUPTA(5611) for the Respondent(s) No. 10,11,12
RULE SERVED for the Respondent(s) No. 13,5.1,5.2,5.3,6
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    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                                   Date : 09/06/2023

                                  ORAL JUDGMENT

1. By way of this petition under Articles 226 and 227 of the Constitution of India read with the provisions of the Gujarat

C/SCA/13694/2006 JUDGMENT DATED: 09/06/2023

Land Revenue Code, 1879, the petitioner seeks to challenge the orders passed by the revenue authorities in cancelling the mutation entry No.1375 dated 29.10.1997 with respect to the land bearing Block No.1164 of village Hajipur, Taluka - Kalol, District - Gandhinagar.

2. The brief facts of the case can be stated as under :

2.1 The land bearing Block No.1164 of village Hajipur, Taluka - Kalol, District - Gandhinagar was originally owned and occupied by (i) Mafaji Varsangji (ii) Karsanji Samtaji and

(iii) Visaji Somaji. The original owners have executed power of attorney deed on 2.4.1997 in favour of one Punit B. Shah and Dipak Shankarlal Shah.

2.2 On the basis of such power of attorney, the sale deed was executed in favour of present petitioner on 7.4.1997 which is registered with Sub-Registrar at Serial No.883. Thereafter, mutation entry was posted on 1.9.1997 with regard to said registered sale deed and was certified on 29.10.1997.

2.3 However, it came to the knowledge of the petitioner that one of the original owners i.e. Mafaji Varsangji had already died prior to the execution of the power of attorney deed and the co-owner has suppressed the said fact and got the power of attorney deed signed by other person. Thus, the petitioner had to contact the heirs of Mafaji Varsangji and could pursue them to execute a registered confirmation deed dated 21.4.2003 in favour of the petitioner, wherein the heirs of

C/SCA/13694/2006 JUDGMENT DATED: 09/06/2023

Mafaji Varsangji have admitted that they had received the consideration of their share at the relevant point of time and that they have no objection and/or dispute with regard to the execution of the registered sale deed by the power of attorney holders.

2.4 That after a period of 2 years, one Vijaybhai Ramanbhai Patel - respondent No.10 herein filed RTS Appeal No.119 of 2019, challenging mutation of entry No.1375 on the basis of registered sale deed. The said Appeal was filed by Vijaybhai Ramanbhai Patel pursuant to sale deed dated 16.6.1999 executed in his favour by the original land owners.

2.5 The said Appeal then was transferred and re-numbered as RTS/Appeal/SR/16/2000 which came to be allowed by the Prant Officer, Gandhiangar vide its order dated 12.10.2001 on the ground that the alleged power of attorney holder had no right to execute the sale deed in favour of the petitioner, by cancelling the Entry No.1375 mutated and certified vide order dated 29.10.1997.

2.6 Being aggrieved and dissatisfied by the aforesaid, the petitioner approached the Collector, Gandhinagar by way of RTS Revision/SR/59/2001. However, the Collector rejected the same vide its order dated 21.10.2005.

2.7 Thus, the petitioner approached the respondent No.1 by way of Revision No.Ma Vi Vi / HKP/GDN/82/2005 which also came to be rejected vide order dated 25.4.2006.

C/SCA/13694/2006 JUDGMENT DATED: 09/06/2023

2.8 It is pertinent to note that in the interregnum, civil suit being Special Civil Suit No.24 of 2003 filed by the petitioner before the Civil Judge (SD) Mehsana and another Special Civil Suit No.14 of 2006 was instituted by the contesting private parties, inter-alia, challenging the sale deed with regard to the land in question.

2.9 Being aggrieved and dissatisfied by the aforesaid orders passed by the respondent No.1, the petitioner has approached this Court by way of present petition under Articles 226 and 227 of the Constitution of India, for seeking appropriate reliefs.

3. I have heard learned advocate Ms.Trusha Patel for the petitioner, Mr.Vivek Gupta for respondent Nos.10, 11 and 12 and learned Assistant Government Pleader Mr.Pranav Dhagat for respondent Nos.1 to 4. Rest of the respondent, though served, have chosen not to appear and contest the matter.

4. At the outset, it is required to be noted that the Coordinate Bench, while admitting the present petition, has passed the detailed order on 17.7.2006, which is quoted as under :

"Upon hearing Ms.Patel, learned Counsel for the petitioner and Mr.Trilok J. Patel, learned Counsel for the caveators, it prima facie appears that as per the settled legal position the revenue entry neither confers any right over the property, nor alters any right, which otherwise exists as per the provisions of Transfer of Properties Act and the revenue entries are having value only for fiscal purpose. There is no dispute on the point that the entry No.1375 was

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based on the registered sale deed dated 1.9.1997. There is also no dispute on the point that Special Civil Suit No.24 of 2003 is preferred by the petitioner challenging the subsequent sale deed in favour of some of the private respondents. There is also no dispute on the point that Special Civil Suit No.14 of 2006 is preferred by Respondents No.10 to 12 for challenging the sale deed. Hence, the following order:

(a) RULE. Mr.Trilok Patel, learned Counsel waives service of notice of Rule for Respondents No.10 to

12. Mr.Mengdey, learned AGP waives service of notice of Rule for Respondents No.1 to 4.

(b) By ad-interim order, it is directed that the Entry No.1375 dated 1.9.1997 shall continue to remain in revenue record with the clarification that the same is subject to the outcome of the proceedings of Special Civil Suit No.24 of 2003 preferred by the petitioner and Special Civil Suit No.14 of 2006 preferred by Respondents No.10 to 12, both pending in the Court of Sr. Civil Judge, Gandhinagar. It is made clear that the Civil Court shall be at liberty to take independent view in the matter on the basis of the material available before it and shall not be prejudiced by any of the observations made by the Revenue Authority or by the present order in the present proceedings.

(c) It has been submitted by the learned Counsel appearing for both the sides that in the proceedings of Special Civil Suit No.24 of 2003 and No.14 of 2006, up till now the application Ex.5 is not finally decided and, therefore, with a view to see that further complications may not arise qua the possession of the property, it is hereby directed that the status-quo qua the possession of the property in question shall be maintained by both the sides until the application Ex.5 is decided by the Civil Court in the aforesaid concerned Special Civil Suit(s)."

5. In view of the aforesaid interim order, it was directed that Entry No.1375 which was mutated on 1.9.1997 shall

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continue to remain in the revenue record with clarification that the same is subject to outcome of proceedings of Special Civil Suit No.24 of 2003 preferred by the petitioner and Special Civil Suit No.14 of 2006 preferred by the respondent Nos.10 to 12, both pending in the court of learned Civil Judge (SD), Gandhinagar.

6. Today, when the matter was called out, this Court has inquired about the status of both the suits, to which the learned advocates appearing for the respective parties have jointly stated that both the suits are on the verge of conclusion and in that view of the matter, both the learned advocates have candidly stated that if the present petition is disposed of in terms of the interim order dated 17.7.2006, the interest of justice would be met.

7. Considering the fact that all throughout since 2006, the Entry No.1375 is ordered to reflected in the revenue record and keeping in mind that both the suits are on the verge of completion, the suggestion given by the learned advocates for the respective parties, appears to be just and reasonable and is hereby accepted.

8. In view of the aforesaid, the following order is passed :

(1) The orders passed by the respective revenue authorities i.e. (i) order dated 12.10.2001 passed by the Prant Officer in RTS/Appeal/SR/16/2000 (ii) order dated 21.10.2005 passed by the Collector, Gandhinagar in RTS/Revision/SR/59/2001 and

(iii) order dated 25.4.2006 passed by the Chief Secretary in

C/SCA/13694/2006 JUDGMENT DATED: 09/06/2023

Revision Application No. Ma. Vi Vi. /HKP/GDN/82/2005 are hereby quashed and set aside.

(2) The revenue entry No.1375 shall remain in force, however, the same shall be subject to outcome of civil proceedings being Special Civil Suit No.24 of 2003 and Special Civil Suit No.14 of 2006 pending before the Civil Court concerned.

9. Present petition is allowed. Rule is made absolute accordingly.

10. However, it is clarified that this Court has not gone into the merits of the case.

(NIRAL R. MEHTA,J) V.J. SATWARA