Gujarat High Court
Virubhai Daubha Manek vs Collector on 12 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 6 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/SECOND APPEAL NO. 6 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
VIRUBHAI DAUBHA MANEK & ORS.
Versus
COLLECTOR & ORS.
==============================================================
Appearance:
MR JAMSHED KAVINA FOR MR SP MAJMUDAR(3456) for the
Appellant(s) No. 1,2,3,4,5,6
MR VEDANT D GAIKWAD(10444) for the Appellant(s) No. 1,2,3,4,5,6
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 12/06/2024
ORAL JUDGMENT
1. The instant appeal under Section 100 of Code of Civil
Procedure, 1908 (for short 'CPC') challenges the concurrent
finding recorded by the learned Civil Court in Regular Civil Suit
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No.33 of 2009 whereby judgment and decree dated 05.05.2016,
the suit of the plaintiffs was rejected. Regular Civil Appeal No.66
of 2020 (old Civil Appeal No.13 of 2016) also came to be
dismissed by the learned Appellate Court by judgment and
decree dated 30.08.2022.
1.1 For the convenience, the appellants who are plaintiffs and
respondents who are defendants shall be referred to as they are
stated before learned Trial Court.
2. The brief facts leading to filing of the present second appeal
are as under.
2.1 The appellants - plaintiffs are the tenant of agricultural
land bearing R.S. No.161, 162, 163 situated at village Vachu,
Dwarka as per Bombay Tenancy Act since long and earlier said
land was in name of Jaga Kara as protected tenant. It is the case
of the plaintiffs that entry No.295 was mutated as per Tenancy
Act in village form No.6. Upon death of said Jaga Kara, name of
the plaintiff recorded in revenue record. The plaintiff requested
defendant No.1 to decide the value of purchase price of
agricultural land as per Tenancy Act but defendant No.3
declared the said land as evacuee property. The plaintiff sent
legal notice under Section 80 of CPC on 15.12.2008 and
defendant No.3 withdrew letter dated 24.10.2008. It is the case
of the plaintiff that defendant No.1 without applying mind on
29.12.2008 sent a letter to defendant No.2 with a view to damage
the right of the plaintiff and defendant No.1 sent letter to plaintiff
on 20.01.2009. Hence, the plaintiff filed Regular Civil Suit No.33
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of 2009 which came to be dismissed by the learned Additional
Senior Civil Judge, Khambhalia. Being aggrieved by the said
order, petitioners filed Regular Civil Appeal No.66 of 2020 (old
Civil Appeal No.13 of 2016) before learned Additional District
Judge, who dismissed the appeal and confirmed the order
passed by the learned Trial Court. Hence, the present appeal.
3. For admission of this appeal, I have heard learned advocate
Mr.Jamshed Kavina for learned advocate Mr.S.P.Majmudar
appearing for the plaintiffs - appellants and learned AGP
Mr.Jayneel Parikh appearing for the respondents.
4. Learned advocate Mr.Kavina after referring to substantial
question of law framed along with the appeal would submit that
deceased Jaga Kara was declared as protected tenant under the
provisions of the Bombay Tenancy and Agricultural Lands Act,
1948 (for short 'Tenancy Act"). The deceased Jaga kara was the
forefather of the plaintiffs. Revenue entry No.295 was posted in
the name of Jaga Kara qua the disputed land in 1953 and
subsequent thereto, mutation entry in the name of heirs of the
deceased Jaga Kara is continued to be mutated qua disputed
land. Exposing the fact further learned advocate Mr.Kavina
would submit that on 28.01.2008, the plaintiff has filed one
application in the office of the Collector to fix the premium under
the provisions of the Tenancy Act in view of the aspect that
forefather of the plaintiffs were declared as protected tenant. He
would further submit that the defendant-Collector instead of
proceeding further in fixing the premium under the provisions of
the Gujarat Tenancy and Agricultural Lands Act, 1948, followed
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the earlier revenue entry No.409 which came to be mutated in
the revenue record of the disputed land in 1956 declaring the
land as evacuee property under the provisions of the
Administration of Evacuee Property Act, 1956 (for short 'the Act
of 1950') and denied to fix and accept the premium from the
plaintiffs which has given rise to the cause of action to file the
suit before the learned Trial Court seeking relief of declaration
and permanent injunction whereby plaintiffs sought to declare
the letter dated 24.10.2008 issued by defendant No.3 having
No.R.O./TMDH/ AU.SE./61/08/42144/797/08 and also
seeking direction that the defendant be directed to fix the
premium for the disputed land.
5. In the background of the above facts, learned advocate
Mr.Jamshed Kavina would submit that the question of law
arises, that whether in absence of declaring the disputed
property as evacuee property and without following the
procedure contemplated in Section 7 of the Act of 1950 for
notifying the disputed property as evacuee property, can
defendant declare disputed property as evacuee property? and
whether without deciding the occupancy or tenancy right of the
plaintiffs as defined in Section 18 of the Act of 1950, the
disputed property can be declared as evacuee property? He
would further submit that these issues remain untouched. They
are substantial questions of law. The judgment and decree of the
Court below did not touch this issue and this issue is susceptive
of upturning the impugned judgment and decree, and directly
and substantially touching the title of the plaintiffs and therefore
upon this question of law, the appeal should be admitted.
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5.1 Upon above submissions, he would submit to admit this
appeal.
6. On the other hand, learned AGP Mr.Parikh appearing on
behalf of the State would submit that the plaintiff has asked the
relief to cancel the notification issued by the Collector and direct
the Collector to fix the premium of the disputed land under the
provisions of the Tenancy Act. He would further submit that at no
point of time the plaintiffs or their forefather has challenged entry
No.409 either on revenue side or through civil litigation by which
declaration of the disputed property as evacuee property has been
noted in revenue entry as well as it being vested in the custodian.
He would further submit that there is no question of law involved
in the present second appeal. He would further submit that by
order an entry made in 1956, the State Government has declared
the disputed property as evacuee property. The status of the
property as evacuee property remains since then. The Collector
issued letter that this evacuee property can be disposed of only by
way of public auction. The plaintiffs may have priority right in
purchasing the disputed property but only in public auction. He
would submit that suit is limited to cancel the letter issued by
Collector and directions seeks to fix the premium. He would
further submit that in view of that suit was not maintainable. The
premium cannot be fixed by the Collector but is by the Tribunal
constituted under the Tenancy Act i.e. Mamlatdar and ALT. The
Civil Court cannot direct any Tribunal to act and fix the premium.
The procedure is laid down in the Tenancy Act that in what and
which manner and how premium can be fixed.
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6.1 Upon above submission, learned AGP submits that the
present appeal is bereft of any substantial question of law and
therefore, it cannot be entertained.
7. I have heard learned advocates for both the sides. I have
also meticulously gone through the impugned judgment and
minutely gone through the record.
8. The case of the plaintiffs is based upon revenue entry qua
disputed property which is placed in 1953. It is revenue entry
No.295. It is stated that forefather of the plaintiffs namely Jaga
Kara is a protected tenant of landlord Habib Ismail. This entry
was mutated on 02.12.1953. On going through this revenue
entry nowhere it is stated that upon which order passed by the
Mamlatdar and ALT under the Tenancy Act, deceased Jaga Kara
was declared as a protected tenant. It is important to visualize
the timing of the entry. Habib Ismail who was the landlord of the
disputed land had migrated to Pakistan. This large scale
migration took place at the time of independence of Union of
India. Now it is surprising that if the migration took place in
1948 through which even landlord Habib Ismail migrated to
Pakistan, how the proceedings under the Tenancy Act was
undertaken in 1953 to declare Jaga Kara as protected tenant,
that too in absence of the landlord Habib Ismail. This revenue
entry No.295 itself is suspicious. In this regard, the deposition of
the Talati-cum-Mantri PW-4 examined by the plaintiffs rather
supports the case of the respondents and not the plaintiffs.
9. Another noticeable aspect appears that vide Exh.50
revenue entry No.409 dated 03.11.1956 was mutated qua the
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disputed land. Mutation entry No.409 has noted declaration of
disputed property as evacuee property. This revenue entry was
mutated pursuant to the Circular No.EVE/231/1992 dated
26.10.1956 by the custodian not only for the disputed land but
for more than 85 parcels of lands in the Dwarka region declared
as evacuee property. The plaintiffs or his forefather neither
challenged this circular nor challenged the revenue entry No.409
either under the revenue jurisdiction or under civil proceedings.
Such entry remains undisputed till now.
10. In the background of above aspect, if we examine the suit
of the plaintiffs, the plaintiffs claimed that their forefather was
declared as protected tenant but till date they have not paid the
premium price and therefore, the Collector may be directed to fix
and accept the same. The plaintiff has also asked to cancel letter
dated 24.10.2008, having No.R.O./TMDH/AU.SE./61/08/42144
/797/08, by which according to plaintiff it was informed that the
disputed land is evacuee property, without producing the same
in the evidence. The fact remains that Circular
No.EVE/231/1992 dated 26.10.1956 declaring the disputed
property as evacuee property after following the provisions laid
down in the Act of 1950 was never questioned. No procedure was
ever carried out by the appellant under the Act of 1950 to
question that his occupancy right are not decided but
extinguished without hearing him. It decipher that plaintiff
claims his forefather was protected tenant, since 1953 plaintiff in
suit ask relief to fix premium and issue of direction to Collector
to accept the same. Thus, it appears that though plaintiff claims
his forefather as protected tenant he or his forefather has not
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paid premium uptill now. Hence, question arise that how
plaintiff or his forefather are protected tenant of disputed land
without paying premium.
11. All above aspects are suspicious, they have been
elaborately noted by learned Trial Court while framing the
following issues :
"1. Whether the plaintiff proves that deceased Jaga
Kara was protected tenant of agricultural land of R.S.
No. 161, 162, 163 of village Vachchu and after the death
of Jaga Kara the plaintiff received the suit land in
possession and occupation as a tenant?
2. Whether the defendant prove that the disputed land
as per Entry No.409 dt. 30-11-1956 declared Hijarati
land?
3. Whether the plaintiff is entitled to get reliefs as
prayed?
4. What order and decree ?"
12. Learned Trial Court answered issue Nos.1 and 3 in
negative and issue No.2 in affirmative to negate the claim of the
plaintiff.
13. Following the Order 41 Rule 31 of CPC in its true purport,
the first Appellate Court framed as many as five points of
determination which are framed in Gujarati language but for
better understanding they are translated in English as under :
"(1) Whether learned Trial Court has committed error of
law and facts in holding that the plaintiff has failed to
prove that deceased Jaga Kara was the protected tenant
of agricultural land situated at Mouje Vachchu bearing
Revenue Survey No.161, 162 and 163 and upon his
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demise, the plaintiff is having tenancy rights and
possession of the said land?
(2) Whether the learned Trial Court has committed
error of law and facts in holding that the disputed land
is declared as evacuee property as per entry No.409
dated 30.11.1956?
(3) Whether the learned Trial Court has committed
error of law and facts in holding that the plaintiff is not
entitled for any relief prayed in the suit?
(4) Whether the judgment and decree passed by the
learned Additional Senior Civil Judge, Khambhaliya in
Special Civil Suit No.33 of 2009 dated 05.05.2016 is
illegal, improper and unjust and it is required to be
interfered with?
(5) What order and decree ?
14. The issues are answered against the appellants denying
the appeal after reappreciating the evidence on record
thoroughly and by assigning cogent reasons.
15. At the cost of repetition, it can be remembered that the
case of the plaintiff was solely relied upon mutation entry No.295
mutated in the year 1953 but the mutation entry in revenue
record is meant for fiscal purpose. They are relevant only for the
purpose of collecting land revenue. They would never confer title
nor extinguish it. Reference can be taken from the judgment of
Hon'ble Supreme Court in the case of Jitendra Singh vs. State
of Madhya Pradesh - 2021 SCC Online 802, wherein it is held
that :
"5. We have heard Shri Nishesh Sharma, learned
Advocate appearing for the petitioner. It is not in dispute
that the dispute is with respect to mutation entry in the
revenue records. The petitioner herein submitted an
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application to mutate his name on the basis of the
alleged will dated 20.05.1998 executed by Smt. Ananti
Bai. Even, according to the petitioner also, Smt. Ananti
Bai died on 27.08.2011. From the record, it emerges that
the application before the Nayab Tehsildar was made on
9.8.2011, i.e., before the death of Smt. Ananti Bai. It
cannot be disputed that the right on the basis of the will
can be claimed only after the death of the executant of
the will. Even the will itself has been disputed. Be that
as it may, as per the settled proposition of law, mutation
entry does not confer any right, title or interest in favour
of the person and the mutation entry in the revenue
record is only for the fiscal purpose. As per the settled
proposition of law, if there is any dispute with respect to
the title and more particularly when the mutation entry
is sought to be made on the basis of the will, the party
who is claiming title/right on the basis of the will has to
approach the appropriate civil court/court and get his
rights crystalised and only thereafter on the basis of the
decision before the civil court necessary mutation entry
can be made.
6. Right from 1997, the law is very clear. In the case
of Balwant Singh v. Daulat Singh (D) By Lrs., reported in
(1997) 7 SCC 137 , this Court had an occasion to
consider the effect of mutation and it is observed and
held that mutation of property in revenue records neither
creates nor extinguishes title to the property nor has it
any presumptive value on title. Such entries are relevant
only for the purpose of collecting land revenue. Similar
view has been expressed in the series of decisions
thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186 , it is observed and
held by this Court that an entry in revenue records does
not confer title on a person whose name appears in
record-of-rights. Entries in the revenue records or
jamabandi have only "fiscal purpose", i.e., payment of
land revenue, and no ownership is conferred on the
basis of such entries. It is further observed that so far as
the title of the property is concerned, it can only be
decided by a competent civil court. Similar view has been
expressed in the cases of Suman Verma v. Union of
India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8
SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC
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368; Municipal Corporation, Aurangabad v. State of
Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna
Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo
Kambekar v. Arthur Import & Export Co., (2019) 3 SCC
191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC
259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
16. Learned advocate for the appellant has relied upon
decisions of Hon'ble Supreme Court in the case of Ghulam Nabi
Dar and others vs. State of Jammu and Kashmir and others -
(2013) 3 SCC 353 and Baloo Singh vs. Tehsildar Sales
Faridabad and another - 2019 SCC Online P&H 6805.
However, the said judgments are not helpful to the case of the
appellants as the facts in the said judgments and facts of the
present case are different.
17. In view of the amended Section 100(3) of CPC, the
appellant has framed the following substantial question of law :
"A. Whether the Ld. Appellate Court as well as the Ld.
Trial Court has committed a substantial error that when
procedure for declaring the property to be an evacuee
property is not been followed as per section 7 of
Administration of Evacuee Property Act, 1950, can the
property be held to be evacuee property ?
B. Whether the Ld. Appellate Court as well as the Ld.
Trial Court has committed a substantial error by not
following the procedure laid down under section 85 A of
Bombay Tenancy and Agriculture Land, 1948 as one of
the dispute herein was regard to section 32 (G) of
Bombay Tenancy and Agriculture Land, 1948?
C. Whether the Ld. Appellate Court as well as the Ld.
Trial Court has committed a substantial error by not
considering revenue entry no. 295 which declared Jaga
Kara as protected tenant?
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D. Whether the Ld. Appellate Courts well as the Ld.
Trial Court has committed a substantial error hat
revenue entry no. 409 which declared land in question
as Evacuee land without following due process law was
just and proper?
E. Whether the Ld. Appellate Court as well as the Ld.
Trial Court has committed a substantial error by not
following the procedure prescribed under section 85 (A)
of The Gujarat Tenancy and Agricultural Lands Act,
1948?
F. Whether the Ld. Appellate Court as well as the Ld.
Trial Court has committed a substantial error by not
considering that present appellants are in continuous
possession till date?"
18. What can be substantial of law has been succinctly defined
by Hon'ble Supreme Court in Hero Vinoth (Minor) vs.
Seshammal - 2006 (5) SCC 545, wherein it is held as under :
"18. The phrase "substantial question of law", as
occurring in the amended Section 100 of the CPC is not
defined in the Code. The word substantial, as qualifying
"question of law", means # of having substance,
essential, real, of sound worth, important or
considerable. It is to be understood as something in
contradistinction with # technical, of no substance or
consequence, or academic merely. However, it is clear
that the legislature has chosen not to qualify the scope of
"substantial question of law" by suffixing the words "of
general importance" as has been done in many other
provisions such as Section 109 of the Code or Article
133(1)(a) of the Constitution. The substantial question of
law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general
importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC
172) , the phrase 'substantial question of law' as it was
employed in the last clause of the then existing Section
100 CPC (since omitted by the Amendment Act, 1973)
came up for consideration and their Lordships held that
it did not mean a substantial question of general
importance but a substantial question of law which was
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involved in the case. In Sri Chunilal's case (supra), the
Constitution Bench expressed agreement with the
following view taken by a full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR
1951 Mad.969):
"When a question of law is fairly arguable, where there
is room for difference of opinion on it or where the
Court thought it necessary to deal with that question at
some length and discuss alternative views, then the
question would be a substantial question of law. On
the other hand if the question was practically covered
by the decision of the highest court or if the general
principles to be applied in determining the question are
well settled and the only question was of applying
those principles to be particular facts of the case it
would not be a substantial question of law."
This Court laid down the following test as proper test, for
determining whether a question of law raised in the case
is substantial"
"The proper test for determining whether a question of
law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of
the parties and if so whether it is either an open question
in the sense that it is not finally settled by this Court or
by the Privy Council or by the Federal Court or is not free
from difficulty or calls for discussion of alternative views.
If the question is settled by the highest court or the
general principles to be applied in determining the
question are well settled and there is a mere question of
applying those principles or that the plea raised is
palpably absurd the question would not be a substantial
question of law."
19. Recently, the Hon'ble Supreme Court after referring above
judgment in case of Chandrabhan (Deceased) Through Lrs.
And others vs. Saraswati and others - AIR 2022 SC 4601, has
observed following :
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"33. The principles relating to Section 100 of the CPC
relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of
a document involving the application of any principle of
law, is also a question of law. Therefore, when there is
misconstruction of a document or wrong (2001) 3 SCC
179 application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material
bearing on the decision of the case (that is, a question,
answer to which affects the rights of parties to the suit)
will be a substantial question of law, if it is not covered
by any specific provisions of law or settled legal principle
emerging from binding precedents and involves a
debatable legal issue. A substantial question of law will
also arise in a contrary situation, where the legal
position is clear, either on account of express provisions
of law or binding precedents, but the court below has
decided the matter, either ignoring or acting contrary to
such legal principle. In the second type of cases, the
substantial question of law arises not because the law is
still debatable, but because the decision rendered on a
material question, violates the settled position of law.
(iii) The general rule is that the High Court will not
interfere with findings of facts arrived at by the courts
below. But it is not an absolute rule. Some of the well-
recognised exceptions are where (i) the courts below
have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts
have wrongly cast the burden of proof. When we refer to
"decision based on no evidence", it not only refers to
cases where there is a total dearth of evidence, but also
refers to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting the
finding."
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20. In view of the above, learned advocate Mr.Jamshed Kavina
failed to demonstrate any question of law arise between the
parties. For the reasons stated hereinabove, the second appeal
stands dismissed at the admission stage. Consequently,
connected Civil Application also stands disposed of. Interim
relief, if any, to discontinue.
(J. C. DOSHI, J)
GAURAV J THAKER
