Heirs Of Deceased Kesavlal ... vs State Of Gujarat
2023 Latest Caselaw 7420 Guj

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    C/SCA/775/2014                              CAV JUDGMENT DATED: 07/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 775 of 2014
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 776 of 2014
                                   With
          CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2023
              In R/SPECIAL CIVIL APPLICATION NO. 775 of 2014

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

================================================================ HEIRS OF DECEASED KESAVLAL BHAILALBHAI SHAH & 1 other(s) Versus STATE OF GUJARAT & 11 other(s) ================================================================ Appearance:

MR CHIRAG B PATEL(3679) for the Petitioner(s) No. 1,1.1,1.2 AAYOG Y DOSHI(8519) for the Respondent(s) No. 11,6,7.1,7.2,7.3,7.4,8.1,8.2,8.3,8.4,8.5 MR ADITYA JADEJA, AGP for the Respondent(s) No. 1 MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 12 MR SP MAJMUDAR(3456) for the Respondent(s) No. 11,6,7.1,7.2,7.3,7.4,8.1,8.2,8.3,8.4,8.5 MR TRILOK J PATEL(658) for the Respondent(s) No. 10,9 NOTICE SERVED for the Respondent(s) No. 2,3,4,5 ================================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 07/10/2023

CAV JUDGMENT

Heard learned Senior Advocate Mr.B.S.

Patel with learned advocate Mr.Umang Oza for

learned advocate Mr.Chirag B. Patel for the

petitioners in Special Civil Application

No.775 of 2014, learned advocate Mr.Jigar P.

Raval appearing for the petitioner in Special

Civil Application No.776 of 2014, learned

Assistant Government Pleader Mr.Aditya Jadeja,

learned Senior Advocate Mr.R. R. Marshal with

learned advocate Mr.Mrugen Purohit, learned

advocate Mr.Meet Kakadiya for learned advocate

Mr.S.P.Majmudar for the respective

respondents.

1. Rule, returnable forthwith. Learned

Assistant Government Pleader Mr.Aditya Jadeja,

learned advocate Mr.Mrugen Purohit and learned

advocate Mr.Meet Kakadiya waive service of

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notice of rule for and on behalf of the

respective respondents.

2. Both these petitions are arising out of

the dispute relating to the land bearing

Survey No.22, Block No.25 of Village: Sevasi,

Taluka and District: Vadodara (hereinafter

referred to as 'the said land'). Special Civil

Application No.775 of 2014 is filed to

challenge the order dated 26.11.2013 passed by

the Special Secretary, Revenue Department

(Appeals) (for short 'SSRD') in Revision

Application No.168 of 2012 whereas, Special

Civil Application No.776 of 2014 is filed to

challenge the order dated 26.11.2013 passed by

the SSRD in Revision Application No.35 of

2009.

3. The brief facts of the case are as under :

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3.1. The said land originally belonged to late

Mangalbhai Muljibhai Patel, Ramanbhai

Muljibhai Patel and Govindbhai Mangalbhai

Patel. The original owners sold the said land

to the predecessor in title of the petitioners

i.e. Kesavlal Shah by way of a registered

sale-deed dated 20.06.1968 and Entry No.1474

was mutated in the revenue record regarding

the same. Meanwhile, the predecessor-in-title

of the petitioners i.e. Kesavlal Shah expired

on 21.11.1972.

3.2. The petitioners thereafter filed an

application before the Sevasi Gram Panchayat

and inquired regarding the objection raised by

one of the original owners. The Sevasi Gram

Panchayat by communication dated 24.07.2002

informed the petitioners that nothing is

traceable regarding the Entry No.1474. One of

the original owners raised an objection

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against the said entry on the ground that one

Civil Suit is pending regarding the said land

and the Revenue temporarily cancelled the said

entry on 27.08.1973 on the ground that

some dispute is pending in the Civil Court.

3.3. It is the case of the petitioners that

heirs of Kesavlal Shah preferred an Appeal

before the Deputy Collector bearing Appeal

No.43 of 1973 against the order passed by the

Revenue officer regarding the cancellation of

Entry No.1474 which was dismissed for default

on 13.01.1976. It is also the case of the

petitioners that the heirs of Kheshavlal Shah

again applied for mutation of their names on

the basis of sale-deed of the year 1968 in the

year 2006 and at that time, because of the

dispute, the Mamlatdar initiated the Dispute

Case No.24 of 2006 and by Judgment and Order

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dated 07.03.2008 directed the Revenue

Authority to mutate Entry No.4166 in revenue

record of the said land regarding the

registered sale-deed dated 20.06.1968.

3.4. Against the order of the Mamlatdar, the

respondent Nos.6 and 12 filed Appeal before

the Deputy Collector, Vadodara bearing Appeal

Nos. RTS/Appeal Nos.29 of 2008 and 30 of 2008.

The Deputy Collector, Vadodara by Judgment and

Order dated 14.07.2010, allowed both the

Appeals by a common order. Against the

Judgement and Order of the Deputy Collector,

Vadodara, the heirs of Kesavlal Shah preferred

the Revision Application No.RTS/RA/96/2011

before the Collector, Vadodara which was

rejected by order dated 17.08.2012.

3.5. Against the order of the Collector, the

petitioners preferred the Revision Application

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No.MVV/HKP/VVD/168/2012 before the respondent

No.5-SSRD and the respondent No.5 rejected the

said Revision Application by judgment and

order dated 26.11.2013.

3.6. It is the case of the petitioners that

the original owners of the said land, sold the

said land by way of a registered sale-deed

dated 20.06.1968 to the predecessor-in-title

of the petitioners i.e. Kesavlal Shah but as

stated above, because of the dispute

in the entry proceedings, the names of the

heirs of the original owners remained in the

revenue record as occupiers of the said land

and by taking advantage of the such a

situation in the year of 1976, the heirs of

the original owner shown the said land in

their possession before the Urban Land Ceiling

Authority.

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3.7. The competent authority by order dated

07.02.1990 declared that 11099 sq. Mtrs of the

said land is retainable land and further held

that land ad-measuring 4178 sq.mtrs was excess

land so far as the said land is concerned.

3.8. The heirs of the original owner filed an

application before the Collector, Vadodara for

Non-Agriculture Use Permission qua the

retainable land i.e. land admeasuring 11090

sq. Mtrs and the Collector, Vadodara by order

dated 05.03.1994, granted NA permission.

3.9. It is the case of the petitioners that

after the order of the Collector regarding the

NA use, the heirs of the original owners

fraudulently sold the land admeasuring 11090

sq. mtrs. to third parties by way of the sale-

deed dated 10.06.1994 and Entry Nos.3114 to

3121 were mutated in the revenue record

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regarding the alleged sale-deed dated

10.06.1994.

3.10. It is the case of the petitioners that

some unknown persons fraudulently filed the

Special Civil Suit No.749 of 1996 in the Civil

Court, Vadodara in the name of heirs of

deceased-Kesavlal Shah against the original

owners and the subsequent purchasers of the

said land. It is further the case of the

petitioners that the said bogus Civil Suit was

ultimately withdrawn unconditionally by some

third parties and as soon as the petitioners

came to know regarding the above fact of

Special Civil Suit No.749 of 1996, they filed

an application being Application No.198 of

2008 before the Civil Court, Vadodara

regarding the same.

3.11. The petitioners i.e. the heirs of

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deceased-Kesavlal Shah filed a Special Civil

Suit No.715 of 2002 for declaration and

injunction against the original owner and the

subsequent purchaser of the said land and the

Trial Court initially granted the status-quo

order vide order dated 22.07.2002 but

thereafter, by order dated 11.11.2006,

rejected the interim relief application

against which Misc. Civil Appeal No.285 of

2006 is pending before the District Court,

Vadodara and the order of the status-quo is

already granted by the District Court,

Vadodara. The petitioners thereafter filed a

Special Civil Suit No. 1183 of 2009 for

cancellation of the bogus and fraudulent sale-

deeds executed by the heirs of the original

owners and the same is pending before the

Civil Court, Vadodara.

3.12. So far as the land admeasuring 4178

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sq.mtrs of the said land which was declared

excess vacant land under the ULC proceedings

is concerned, Entry No.3546 is mutated in the

revenue record and on the basis of the said

entry, the heirs of the original owner

fraudulently sold the said land to third

parties by a registered sale-deed dated

22.12.1999.

3.13. It is the case of the petitioners that

it has been brought to the notice of the

petitioners that father of respondent No.18-

Milindkumar Sukumar was holding the power of

attorney on behalf of interested persons and

had committed a serious fraud as the original

owner of the land originally executed the

sale-deed in favour of Chimanbhai Mangalbhai

Patel who expired in U.K. on 23.7.2003 and

even though Chimanbhai Mangalbhai Patel had

expired, respondent No.18-Milindkumar Sukumar

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Patel, his father and one another person

played mischief and got the power of attorney

as well as entered the name as if it has been

executed by Chimanbhai Mangalbhai Patel in

July, 2010 and Chimanbhai Mangalbhai Patel,

father of respondent No. 18, executed sale-

deed in favour of respondent No.18 on

14.12.2016. In that event, existence of the

respondent No.18 and his father who have got

the sale-deed executed in their name is based

on fraud which has been brought to the notice

of the petitioners after filing the petition.

The petitioners immediately registered a

complaint before the Police Inspector, Taluka

Police Station, Vadodara, on 29.03.2019 and

subsequently, because of the intervention of

the relatives of respondent No.18, the

complaint had been withdrawn by the

petitioners by giving the statement. It is the

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case of the petitioners that after compromise

also, the middleman did not act as per the

settlement and the petitioners have revived

the complaint by submitting an application.

3.14. It is the case of the petitioners that

in any event, the persons whose names are

running on the record is the result of the

fraud and being aggrieved and dis-satisfied by

orders dated 14.07.2010, 17.08.2012 and

26.11.2013 passed by the Deputy Collector,

Vadodara, Collector, Vadodara and Special

Secretary Revenue Department, Ahmedabad

respectively, the petitioners have preferred

these petitions.

4.1. Learned Senior Advocate Mr.B.S.Patel for

the petitioners submitted that it is an

admitted position that the original owners of

the said land sold it to the predecessor in

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title of the petitioners by registered sale-

deed dated 20th February, 1968 and till date,

none of the original owners nor the heirs of

the original owners have challenged the said

sale-deed before Civil Court and therefore,

the original owners cannot claim any ownership

right qua the said land as they have no right,

title or interest.

4.2. It was therefore submitted that merely

because the revenue entry mutated in revenue

record regarding the sale-deed was cancelled

temporarily on the ground of pendency of some

Civil Suit, it cannot be said that the

registered sale-deed dated 20th June, 1968 was

cancelled.

4.3. It was submitted that by virtue of the

entry in revenue proceedings, the registered

sale-deed dated 20th June, 1968 was not

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cancelled on ground of breach of any statutory

provision or on the ground that the said sale-

deed was void and therefore, the original

owners have no right over the said land after

pocketing the money. It was submitted that if

the original owners have any grievance, they

ought to have filed Civil Suit challenging the

sale-deed. It was therefore submitted that the

original registered sale-deed dated 20th June,

1968 is still in operation in asmuch as the

entry in revenue record is only for the fiscal

purpose for collection of revenue and cannot

be considered as a proof of title.

4.4. It was pointed out by learned Senior

Advocate Mr.B.S.Patel that due to some

technical reason, the names of the original

owners and thereafter the names of their heirs

continued in the revenue record due to which

it was projected as owners and occupiers of

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the said land before the ULC authorities,

before the Revenue Authorities and before the

third parties by subsequently converting the

land into non-agricultural land and

thereafter, fraudulently selling the said land

to the third parties.

4.5. It was therefore submitted that the

original owners and their heirs are absolutely

dis-honest persons and fraudulently and dis-

honestly sold the said land to the third

parties with full knowledge that they were not

the owners and occupiers of the said land. It

was therefore submitted that the Revenue

Authorities are not authorised to decide the

title of the land in question and it is for

the Civil Court to decide the issue of title

in absence of any challenge to the sale-deed

dated 20th June, 1968. The Revenue Authority

is duty bound to mutate the entry in the

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revenue record regarding the registered sale-

deed and therefore, the orders of the Deputy

Collector and the SSRD are liable to be

quashed and set aside.

4.6. It was submitted that the Entry No.1474

was objected by one of the original owners

before the Mamlatdar but the said objection

was raised without producing copy of the Suit

or any document in respect of the pendency of

the Civil Suit at the relevant point of time

and therefore, the Mamlatdar ought to have

rejected the objection but instead thereof,

the Entry No.1474 was not certified and the

names of the original owners continued in the

revenue record.

4.7. It was therefore submitted that the

petitioners are the heirs of the legal owners

of the land purchased in the year 1968.

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4.8. It was submitted by learned Senior

Advocate Mr.Patel that the Revenue Authorities

ought to have certified the revenue Entry

No.4166 after verification of the revenue

records. It was further submitted that the

orders passed by the Revenue Authorities are

always subject to outcome of the pending

proceedings before the Civil Court as the

petitioners have filed Regular Civil Suit

No.715 of 2002 which is still pending.

5.1. On the other hand, learned Senior

Advocate Mr.R.R.Marshal for the respondents

submitted that the petitioners have challenged

the entry after lapse of more than 32 years

and after the subsequent entries have been

mutated in the revenue records and therefore,

impugned orders are just and proper and no

interference is required by this Court in

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absence of any explanation for delay caused in

challenging the revenue entries before the

authority. It was submitted that the

petitioners should have approached the revenue

authorities within a reasonable time.

5.2. Learned Senior Advocate Mr.Marshal for

the respondents submitted that the Entry

No.1474 was not certified by the Mamlatdar and

the Appeal No.43 of 1973 against rejection of

the said entry was also dismissed by the

Deputy Collector by order dated 13.01.1976

which was challenged by the petitioners by

filing Revision Application No.123 of 2008

before the Collector after a period of 32

years and against which, Revision Application

No.35 of 2009 is also dismissed by the SSRD

which is subject matter of challenge in

Special Civil Application No.776 of 2014. It

was submitted that in the year 2006, the

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mutation Entry No.4166 dated 25.04.2006 was

illegally mutated in spite of the fact that

the mutation entry No.1474 was not certified,

again the Entry No.4166 could not have been

mutated.

5.3. It was submitted that though earlier

Entry No.1474 of the year 1972 was cancelled

from revenue record, heirs of deceased

Kesavlal Shah and others did not take any step

for 32 years and instead in the year 2006,

again moved the Mamlatdar to mutate the name

of deceased-Kesavlal Shah and Chandrakant Shah

on the basis of the registered sale-deed of

the year 1968. The Mamlatdar, without making

any inquiry certified the mutation Entry

No.4166 dated 25.04.2006 vide order dated

17.03.2008 ignoring the subsequent transaction

in the years 1994 and 1999 entered into by the

heirs of the original owners with respondent

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No.12 and others who are bona-fide purchasers

of the land in question. It was submitted that

the Entry No.4166 made in the name of the

deceased person was therefore illegal and

invalid. The Mamlatdar also did not consider

the fact regarding conversion of the said land

to non-agricultural land and grant of

construction permission before mutating the

Entry No.4166.

5.4. It was therefore submitted that the

Deputy Collector has rightly allowed the RTA

Appeal Nos.29 and 30 of 2008 by order dated

14.07.2010 by setting aside the order of the

Mamlatdar dated 07.03.2008 cancelling the

Entry No.4166 with further direction that the

entry will be mutated in revenue records

subject to the final outcome of the Civil

Suits.

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5.5. It was therefore submitted that the

Collector vide order dated 17.08.2012 and the

SSRD in the impugned order dated 26.11.2013 in

the Revision Application No.168 of 2012 have

rightly upheld the order of the Deputy

Collector by dismissing the Revision

Applications by observing that once the

earlier Entry No.1474 was cancelled from the

revenue records, again thereafter new entry

cannot be made in the record for the same

transaction.

5.6. It was submitted that the said

transaction of the year 1968 was never acted

upon and the said land continued in the

possession of the original owner-Maganbhai

Muljibhai Patel and after his death, names of

his heirs were mutated in revenue record vide

Entry No.1569 dated 25.08.1975 and thereafter,

under the ULC Act, the land admeasuring 4178

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sq.mtrs was declared as excess land. It was

submitted that the petitioners have not taken

up any steps during the period from 1972 till

2006 when the application was made to again

mutate the name of the deceased person on the

basis of the registered sale-deed before the

Mamlatdar and preferred the Appeal challenging

the Entry No.1474 after 32 years in the year

2008. It was therefore submitted that the

Revenue Authorities have rightly passed the

impugned orders subject to final outcome of

the pending proceedings in the Civil Court.

6. Learned advocates for the other respondents

have also adopted the submissions made by the

learned Senior Advocate Mr.Marshal.

7. Having heard the learned advocates for the

respective parties and having considered the

facts of the case, it is not in dispute that

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after execution of the registered sale-deed in

the year 1968, the Entry No.1474 was not

certified in the Revenue Record. The Appeal

filed before the Deputy Collector was also

dismissed in the year 1973. The petitioners

did not take any action for mutation of the

name of the late Kesavlal Shah or his legal

heirs in the revenue record till 2006. The

Appeal was also filed challenging the order of

the Deputy Collector passed in the year 1973

by the legal heirs of the late Kesavlal Shah

before the Collector in the year 2008 i.e.

almost after 32 years. Moreover, it is a

matter of fact that at no point of time

various mutation entries effected in revenue

records pursuant to the registered sale-deed

of the years 1994 and 1999 were challenged by

petitioners or any legal heirs of the deceased

Kesavlal Shah at any point of time. It is also

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a matter of fact that the sole transaction

dated 20th June, 1968 has not been mutated in

revenue record and proceedings initiated at

the instance of the petitioners being heirs of

the deceased Kesavlal Shah came to be rejected

by the competent authority.

8. It is pertinent to note that out of the

said land, under the ULC Act land admeasuring

4178 sq.mtrs was declared as excess land in

the year 1990 and thereafter, the land

admeasuring 11,090 sq.mtrs was converted for

NA purpose in the year 1994 and development

permission has also been granted by the

competent authority to the respondents and

none of such orders are ever challenged by the

petitioners before the competent authority. It

appears from the record that the petitioners

have also not challenged the sale-deed of 1994

and 1999 before the Civil Court.

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9. It also emerges from the record that

Special Civil Suit No.749 of 1996 filed by the

legal heirs of late Kesavlal Shah for

declaration and injunction against the

original owner Mr.Mangalbhai Patel and other

eight registered sale-deed holders was also

withdrawn unconditionally by the power of

attorney holder. However, it is the case of

the petitioners that the authority of power of

attorney to withdraw the Suit unconditionally

was challenged by the petitioners as he played

fraud upon the Court, however for which, no

substantive proceedings are initiated by the

petitioners.

10. It also appears that except the present

petitioners namely Harishchandra Kesavlal

Shah, Suryakant Kesavlal Shah and legal heirs

of Kesavlal Bhailalbhai Shah, no other legal

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heirs have challenged the withdrawal of the

said Suit through power of attorney being an

act of fraud though the petitioners were aware

about filing of the Suit and withdrawal

thereof.

11. It is also pertinent to note that the

Civil Court did not grant any interim relief

in favour of the petitioners in the Regular

Civil Suit No.715 of 2002 filed before the 4th

Additional Senior Civil Judge, Vadodara and

the Misc. Appeal No.285 of 2006 filed before

the District Court as well as the Special

Civil Application No.10535 of 2014 filed

before this Court are also dismissed.

12. It is also pertinent to note that the

Special Leave Petition preferred against the

dismissal of the Special Civil Application

No.10535 of 2014 is also dismissed by the

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Hon'ble Supreme Court vide order dated 23rd

January, 2017 and the said order is placed

with the further affidavit filed on behalf of

the respondent No.12 and others who are the

subsequent purchasers of the land.

13. In view of the above discussion, it

emerges that the challenge upheld by the

Collector and SSRD as the petitioners

challenged the order passed by the Deputy

Collector in the year 2008 in Appeal No.43 of

73 after more than 32 years. Therefore, the

Special Civil Application No.776 of 2014

arising out of the Revision Application No.35

of 2009 is accordingly dismissed. So far as

Special Civil Application No.775 of 2014 is

concerned, the same is also dismissed as the

Entry No.4166 is rightly rejected by the

Deputy Collector as the Mamlatdar could not

have passed that said entry in the revenue

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records when the Entry No.1474 was already not

certified in the year 1972 and the Appeal

against the same was dismissed in the year

1973. The Deputy Collector, Collector and SSRD

have therefore rightly rejected the Entry

No.4166 mutated in the revenue record in the

year 2006 to mutate the names of the deceased

persons Kesavlal Shah and Chandrakant Shah on

the basis of the registered sale-deed dated

20th June, 1968. The Special Civil Application

No.775 of 2014 is therefore also dismissed

confirming the order passed by the SSRD in

Revision Application No.168 of 2012. However,

it is clarified that all the orders passed by

the Revenue Authorities are subject to the

final outcome of the pending proceedings of

the Civil Court as observed by the SSRD in the

impugned orders. The petitions therefore fail

and are accordingly dismissed. Pending Civil

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Application also stands disposed of in view of

the dismissal of the Special Civil

Applications. Rule is discharged. No orders as

to cost.

(BHARGAV D. KARIA, J)

PALAK