Deceased Vasudev Naraynbhai ... vs Special Secretary Revenue ...
2023 Latest Caselaw 7986 Guj

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   C/CA/1790/2023                   ORDER DATED: 01/11/2023

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 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


R/CIVIL APPLICATION (FOR CONDONATION OF DELAY)
                   NO. 1790 of 2023
    In F/LETTERS PATENT APPEAL NO. 29838 of 2023
                        With
      F/LETTERS PATENT APPEAL NO. 29838 of 2023
   In R/SPECIAL CIVIL APPLICATION NO. 6678 of 2016
                        With
     CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
    In F/LETTERS PATENT APPEAL NO. 29838 of 2023
   In R/SPECIAL CIVIL APPLICATION NO. 6678 of 2016
                        With
         R/CIVIL APPLICATION NO. 1792 of 2023
    In F/LETTERS PATENT APPEAL NO. 29840 of 2023
                        With
      F/LETTERS PATENT APPEAL NO. 29840 of 2023
   In R/SPECIAL CIVIL APPLICATION NO. 6681 of 2016
                        With
     CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
    In F/LETTERS PATENT APPEAL NO. 29840 of 2023
   In R/SPECIAL CIVIL APPLICATION NO. 6681 of 2016

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 DECEASED VASUDEV NARAYNBHAI RAJGOR THROUGH
          LH MAHENDRABHAI VASUDEV RAJGOR
                              Versus
       SPECIAL SECRETARY REVENUE DEPARTMENT
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Appearance:
MR DHAVAL D VYAS(3225) for the Applicant(s) No. 1
for the Respondent(s) No. 1,2,3,4,5,6
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     C/CA/1790/2023                            ORDER DATED: 01/11/2023

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CORAM:HONOURABLE THE CHIEF JUSTICE
      MRS. JUSTICE SUNITA AGARWAL
      and
      HONOURABLE MR. JUSTICE
      ANIRUDDHA P. MAYEE

                         Date : 01/11/2023

                    ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS.

JUSTICE SUNITA AGARWAL)

1. These appeals have been filed in the name of a dead person

through his heir and legal representative namely Mahendrabhai

Vasudev Rajgor. When we pointed this fact to Shri Dhaval D. Vyas,

learned counsel appearing for the appellant, he would submit that an

inadvertent mistake has crept in while drafting the cause-title of the

appeals. As prayed for, permission is granted to the learned counsel

to make necessary corrections in the cause-title during the course of

the day.

2. As the dispute raised in both the appeals is with respect to the

same property and they are arising out of a common order, they have

been heard together and are being decided by this common

judgment.

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     C/CA/1790/2023                           ORDER DATED: 01/11/2023

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3. Before entering into the merits of the appeals, we may record

that both the appeals are highly belated by 1223 days and the

explanation for delay is not to the satisfaction of the Court.

However, proceeding on merits, we may note that these Intra-Court

appeals arise out of a mutation proceeding with respect to two

properties namely Survey Nos. 24 and 29, Mouje: Tajpura, Taluka:

Halol, District: Panchmahals.

4. The petitioner herein claims to be the heir and legal

representatives of Vasudev Narayandas Rajgor and trustee of

Narayan Dham Trust, Mouje: Tajpura, Taluka: Halol, District:

Panchmahals. It seems that in the mutation proceeding initiated by

the respondent Nos. 2 to 6 herein, objections were raised by the

petitioner to the effect that the property in question belongs to the

Trust, created as Narayan Dham Trust. Vague assertions have been

made in the writ petition that late Narayanbapu permitted the Trust

to be created in the name of Narayan Dham Trust at Mouje: Tajpura,

Taluka: Halol, District: Panchmahals, for registration of which an

application under the Bombay Public Trust Act, 1950 (now, the

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C/CA/1790/2023 ORDER DATED: 01/11/2023

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Gujarat Public Trust Act, 1950) was moved by one of the Trustees

namely Shah Vallabhdas Shantilal on 03.07.1975. As per the

averments made in the writ petition, after making inquiry under

Section 19, the Trust was registered by the order dated 23.07.1975

passed by the Assistant Charity Commissioner. The Registration

Certificate dated 23.07.1975 is appended as Annexure 'C' to the writ

petition.

4.1 It is then stated in various paragraphs of the writ petition that

the Trust is being managed and the property in question namely

Survey Nos. 24 and 29, subject matter of mutation proceeding, were

forming part of the lands details of which had been entered in the

register of the Trust prepared in the year 1975.

4.2 It is also stated in the writ petition that even before the

registration of the Trust, late Shri Narayanbapu had executed a

Power of Attorney on 26.04.1973 in favour of his son Vasudevbhai

Narayandas Rajgor, deceased father of the petitioner. As per the

instructions of late Narayanbapu, the Trustees namely the deceased

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father of the petitioner was efficiently and legally managing the

Trust for Charitable and Education purposes. Initially, two Trustees

were appointed namely Vallabhdas Shantilal Shah and Vasudevbhai

Narayandas Rajgor and on death of one of the Trustees namely

Vallabhdas Shantilal Shah, the Change Report was submitted and

name of Mahendrabhai Vasudev Rajgor, i.e. the petitioner herein

was entered by the order dated 06.09.2008.

4.3 It is further submitted that on death of Narayanbapu, his son

and Trustee namely Vasudevbhai Narayandas Rajgor, the father of

the petitioner herein made an application on 05.03.2008 on behalf of

the Trust to enter the name of Narayan Dham Trust in the revenue

record in respect of the land bearing Survey No. 29. Both the

applications moved by the respondent Nos. 2 to 6 for mutation of

their names as legal heirs and representatives of Narayanbhai

Kalidas, the original owner of the property in question, and the

application to record the name of the Trust, moved by the father of

the petitioner have been decided together leading to the passing of a

common order dated 07.07.2015 in two revision applications namely

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RTS Revision Application No. MVV/HKP/PNCH/7/2014 and the

RTS Revision Application No. MVV/HKP/PNCH/1/2015. The writ

petition, out of which two appeals have arisen, was filed to challenge

the above noted orders by the appellant herein.

5. Having noted the contents of the writ petition, we have gone

through the findings returned by the Secretary (Appeals), Revenue

Department, as noted by the learned Single Judge in paragraph '8' of

the judgment impugned. They are relevant to be noted herein below:

"8. The issue was litigated by both parties at various levels and the Secretary (Appeals), Revenue Department has recorded that considering the impugned order of Collector, it appears that the land of Survey no.24 at Mauje Tajpur, Taluka Halol was possessed by Narayanbhai Kalidas whereas the land of Survey no.29 was jointly possessed by Shri Sukhabhai Chhababhai and Desaibhai Chhabhabhai alongwith Rajgor Narayandas Kalidas. Therefore, even if there is a trust, the share of Sukhabhai and Chhababhai does not go to the trust. They have not been made a party nor any Gift Deed is in existence. If the trust had been formed in 1975, Narayandas has not mentioned thereabout until 2007 while he was alive. The said so-called trust has been formed by Vasudevbhai Narayandas and Vallabhdas Shantilal Shah. The application for the so called trust does not bear signature of Narayandas. On the other side, when Rajgor Vasudev Naranbhai died on 18/07/2013, entry no. 413 to include the names of his successors had been mutated. When the stated mutation entry

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was allowed, the names of his family members have been shown in the column for occupants in Form-7 of village land records for the disputed land. On one side, the applicant has mutated an entry for his and his family members' names as if the disputed land is individually owned and on the other side, a point about land of trust is raised. For that, there is a bar of principle of estopple. Hence, the order issued by the Mamlatdar seems to be appropriate as the disputed land is not found to be owned by the trust. It is not to be determined here whether the trust is a fraud or not. The parties may approach the Civil Court for such relief. Further, if it is a property of trust, it is also to be examined whether the trust is an agricultural trust or not, whether the permission of competent authorities has been secured or not for purchasing the land and whether the land is used for other than agricultural purpose or not. If it is a property of trust, an order by the Civil Court is required to be produced."

5.1 On the said findings returned by the learned Single Judge,

when we raised pertinent query to the counsel for the petitioner as to

whether the property in question has ever been recorded in the name

of the Trust, the only answer is that it finds mention in the register of

the Charity Commissioner. However, it is an admitted fact of the

matter that apart from the alleged sole entry, there is no mention of

the property in question being the Trust property in the revenue

records at any point of time. The property in question, admittedly

owned by Narayanbhai Kalidas along with other co-owners, details

of whom are lacking in the writ petition. The petitioner herein is

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also claiming through one of the heirs of Narayanbhai Kalidas, who

according to the petitioner had created Trust in the year 1975. In any

case, from the averments in the writ petition, as noted herein above,

the Trust was not created by the original owners of the property

including Narayanbhai Kalidas, who happened to be the grandfather

of the petitioner herein. It is the own case of the petitioner that the

Trust was created by his father namely Vasudevbhai Narayandas

Rajgor along with one Vallabhdas Shantilal by moving an

application on 03.07.1975 before the Charity Commissioner. It is

not known nor there is any material as to in whose name the property

in question was recorded on 03.07.1975, i.e. on the date when the

application was moved under Section 18 for creation of the Trust in

the name of Narayan Dham Trust at Mouje: Tajpur, Taluka: Halol,

District: Panchmahals.

5.2 There is a categorical finding recorded by the Revenue

Secretary, as affirmed by the learned Single Judge, that Survey No.

29 was jointly possessed by two other persons namely Shri

Sukhabhai Chhababhai and Desaibhai Chhababhai along with

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Rajgor Narayandas Kalidas. The question, therefore, would be as to

how the share of those two co-sharers could go to the Trust. None of

them have not been made party in the Trust Deed nor there is any

Gift Deed in existence. From the above, as is evident, in absence of

details about the actual ownership of the property in question on the

date of the creation of the Trust and that apart from the alleged sole

entry in the register of the Charity Commissioner there is no

document of transfer of the property in question to the Trust or

creation of the Trust over the property in question. No infirmity as

such can be found in the decision of the learned Single Judge. The

appeals are dismissed, accordingly, both on the grounds of delay as

well as on merits. Connected applications also stand dismissed,

accordingly.

[ Sunita Agarwal, CJ. ]

[ Aniruddha P. Mayee, J. ] hiren /1-2, SB-II-1-2