Gujarat High Court
Patel Haresh Kaushikbhai vs State Of Gujarat on 13 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21907 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 21906 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
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PATEL HARESH KAUSHIKBHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Petitioner(s) No. 5
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,2,3,4,5.1,5.2,5.3,5.4,6,7,8,9
MR. JAY TRIVEDI, LD. ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 13/11/2025
COMMON ORAL JUDGMENT
1. Since the issues raised in both the captioned writ-
applications are interrelated and the relief prayed for is also
similar in nature, those were heard analogously and are being
disposed of by this common judgment.
2. Rule returnable forthwith. Learned AGP Mr. Jay Trivedi,
waives service of notice of rule for and on behalf of the
respondent-State.
3. For the sake of convenience, Special Civil Application
No.21907 of 2017 is treated as the lead matter.
4. By this writ application under Article 226 of the
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Constitution of India, the writ applicants have prayed for the
following reliefs;
"(A) Your Lordships may be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any
other appropriate writ, order or direction quashing and
setting aside the impugned order dated 06.08.2011
passed by Mamlatdar in RTS/Vashi/SR/No.8/2010 and
connected matter being Nos.41-52/2010 (At Annexure-D
hereto), order dated 25.02.2015 passed by the Deputy
Collector in RTS/Appeal No.198/2012 (at Annexure-E
hereto), order dated 01.12.2016 passed by the District
Collector in RTS/RS/No.388 of 2015 (at Annexure-F)
hereto) and order dated 24.08.2017 passed by the
respondent-SSRD in Revision Application
No.MVV/HAKAP/Anand/28/17 (at Annexure-L hereto);
(B) Durting the pendency and final disposal of the
present petition, YOUR LORDSHIPS may be pleased to
stay further operation, implementation and execution of
the impugned order dated 06.08.2011 passed by
Mamlatdar in RTS/Vashi/SR/No.8/2010 and connected
matter being Nos.41-52/2010 (At Annexure-D hereto),
order dated 25.02.2015 passed by the Deputy Collector
in RTS/Appeal No.198/2012 (at Annexure-E hereto), order
dated 01.12.2016 passed by the District Collector in
RTS/RS/No.388 of 2015 (at Annexure-F hereto) and order
dated 24.08.2017 passed by the respondent-SSRD in
Revision Application No.MVV/HAKAP/Anand/28/17 (at
Annexure-L hereto) and further be pleased to direct the
respondents to maintain status-quo with respect to the
land/property in question;
(C) Pass any such other and/or further orders that may be
thought just and proper, in the facts and circumstances
of the present case."
5. Facts, giving rise to the filing of the present writ
application, may be summarized as under;
5.1 The dispute involved in the present matter pertains to
the land bearing Survey No.1203/p/p/2, admeasuring 204-13-
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45 Hec-Are-Sq. Mtrs of village Sudalpura, Taluka: Umreth,
District: Anand.
5.2 For the said land, Entry Nos. 10874 to 10885 came to be
mutated in the revenue records pursuant to a registered sale
deed dated 08.01.2010/27.04.2010, which was executed in
favour of the writ applicant No.1 and others.
5.3 One another sale deed also came to be executed in
respect of the very same land, pursuant to which, an entry
No.10848 also came to be mutated in the revenue records in
the name of one Manibhai Maganbhai Makwana, i.e, the writ
applicant in the connected application.
5.4 After the mutation of the aforesaid entries, objection was
raised by one Upendrabhai Jashabhai Patel, i.e., the writ
applicant of Special Civil Application No.21907 of 2017 with
regard to mutation of Entry No.10848, and one Ranubhai
Bhikhabhai Bharwad and Hussainbhai Abbasbhai Sukhsarvala,
i.e., the writ applicants of connected writ application also
raised objection with regard to mutation of Entry Nos.10874 to
10885, pursuant to which, cases were registered before the
Mamlatdar being Nos. 08 of 2010 and 41 to 52 of 2010, and as
all the cases were arising out of the very same land, they were
being proceeded with together by the Mamlatdar.
5.5 Thereafter, the Mamlatdar, vide order dated 06.08.2011,
canceled the aforesaid entries being Entry Nos.10848 and
10874 to 10885.
5.6 Being aggrieved, the writ applicants preferred an appeal
before the Deputy Collector being RTS/Appeal No.198/2012,
who vide common order dated 25.02.2015 rejected the
aforesaid appeal as well as the appeal filed by the writ
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applicants of connected application being RTS/Appeal No.278
of 2011.
5.7 Being aggrieved, the writ applicants preferred revision
application before the District Collector, being RTS/RA/No.388
of 2015, who vide order dated 01.12.2016, rejected the said
revision application.
5.8 Being aggrieved, two revision applications were filed
before the respondent-SSRD, one by the writ applicants of the
lead matter being Revision Application
No.MVV/HAKAP/Anand/28/2017 and another by the writ
applicants of connected application, namely, Manibhai
Maganbhai Makwana being Revision Application
No.MVV/HAKAP/Anand/30/2017, inter alia, contending therein
that the writ applicants herein have purchased shares of
Bhavanikumarba Pruthvirajsinh W/o. Bhagirathsinh Jadeja,
Tarunaba Pruthvirajsinh W/o. Pradhumansinh Zala and
Prithviraj Kuvariba Pruthvirajsinh W/o. Dushyantsinh Gohel,
who were having 45% shares in the subject land, and
therefore, by way of 12 sale deeds, they purchased the subject
land. It was also contended therein by the writ applicants that
they also preferred Special Civil Suit No.30 of 2010 before the
learned Senior Civil Judge, Anand.
5.9 The writ applicants of connected application in their
revision application before the SSRD being
No.MVV/HAKAP/Anand/30 2017 contended that they have
purchased the subject land from Taraba Pruthvirajsinh Wd/o.
Pruthrirajsinh Mansinh Thakore and others by a registered sale
deed dated 30.01.2010, who were having 75% shares in the
subject land.
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5.10 Thus, it appears that there was a dispute amongst the
purchasers with regard to their respective shares in the subject
land. However, during the pendency of the proceedings before
the revenue authorities, a settlement was arrived at between
the purchasers, wherein they agreed that due to inadvertence
in the sale deed executed in favour of Manibhai Maganbhai
Makwana and others, the shares of their sellers/vendors were
shown as 75%, whereas in fact it would be 55% only, and it
was further agreed that as far as Patel Haresh Kaushikbhai and
11 others are concerned, i.e., the writ applicants of the lead
matter, their shares would be considered to be 45% and the
shares of the writ applicants of connected writ application
would be considered to be 55% in the subject land, and it was
further agreed that on the basis of such settlement, mutation
will be made in the revenue records.
5.11 Accordingly, new and corrected registered sale deed was
executed in favour of Manibhai Maganbhai Makwana and
others by their original sellers on 08.06.2016, correcting the
area of the land from 75% to 55%. However, despite the fact
that the dispute was no longer survive, the respondent-SSRD
vide orders dated 24.08.2017, rejected both the revision
applications preferred by the writ applicants of both the writ
applications.
5.12 Being aggrieved, the writ applicants are here before this
Court with the present writ application.
6. Learned senior advocate Mr. Mehul Suresh Shah assisted
by learned advocate Mr. S.P. Majmudar appearing for the writ
applicants took this Court to the documents produced along
with the writ application. He submitted that it is not in dispute
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that the writ applicants purchased the subject land from the
original owners by executing a registered sale deed way back
on 08.01.2010/27.04.2010, pursuant to which, Entry
Nos.10874 to 10885 were mutated in the revenue records.
Learned senior advocate Mr. Shah further submitted that one
another sale deed also came to be executed in favour of
Manibhai Maganbhai Makwana and others, i.e, the writ
applicants of the connected writ application, on the basis of
which, Mutation Entry No.10848 was also mutated in the
revenue records. Thus, dispute arose inter se amongst the
purchasers of the subject land, i.e, the writ applicants of both
the writ applicants, for which, proceedings were initiated
before the revenue authorities. Learned senior advocate Mr.
Shah also submitted that the subject land was purchased by
the writ applicants upon payment of appropriate sale
consideration, for which, an agreement to sell also came to be
executed in favour of the writ applicants by the original sellers,
however, as the original sellers failed to execute registered
sale deed in favour of the writ applicants within the prescribed
time limit, the writ applicants were constrained to initiate civil
proceedings before the competent civil court, seeking specific
performance of the agreement to sell against the opponents
therein. However, during the midst of the proceedings, total 12
registered sale deeds had been executed by the original sellers
in favour of the writ applicants, and as such, the cause
involved in the suit became infrcutuous, and therefore, the
writ applicants did not appear before the civil court, due to
which, ultimately, those proceedings were terminated as
dismissed for want of prosecution. Learned senior advocate Mr.
Shah submitted that except the aforesaid, no civil proceedings
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have been instituted by any of the private parties against each
other. Even the dispute which arose inter se between the
purchasers has also been settled between them even during
the proceedings before the revenue authorities, and as such,
it can safely be said that there is no civil litigation pending as
on date between any of the private parties.
7. Learned senior advocate Mr. Shah further submitted that
as per the provisions of Chapter X-A of the Gujarat Land
Revenue Code, 1879 (hereinafter referred to as "the Code")
and more particularly the second proviso to Section 135-C of
the Code, it is incumbent upon the revenue authority to
mutate the entry in the revenue record when the
land/immovable property is purchased by registered
document. The writ applicants by way of an abundant caution,
submitted an application for mutation of entries in the revenue
record on the basis of the registered document executed in
their favour. Likewise, the writ applicants of the connected
application also made an application for mutation of entry.
However, as there were some disputes and misunderstanding
amongst the purchasers at the relevant point of time, i.e, the
writ applicants of both the writ applications, objections were
raised from the either side against certification of the
respective entries. However, during the pendency of the
proceedings before the revenue authorities, the said dispute
amongst the purchasers was sorted out, and a settlement was
arrived at between them, pursuant to which, new and
corrected sale deed was executed in favour of the writ
applicants of the connected writ application, correcting the
area of the land sold out to them by the original sellers from
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75% to 55%, however, the authorities below completely
ignored the settlement, and passed the impugned orders,
rejecting the mutation of the entry on the ground that the area
of the land purchased by the writ applicants have not been
specifically mentioned in the agreement to sell, and that the
land purchased by the writ applicants is a surplus land and a
civil suit has also been filed by one of the purchasers before
the competent civil court. Learned senior advocate Mr. Shah
has drawn the attention of this Court to the findings recorded
by the Special Secretary, Revenue Department (for short
'SSRD'), and submitted that the main grounds on which the
claim of the writ applicants was rejected by the revenue
authorities are (i) a civil suit had been instituted by some of
the co-purchasers on the basis of agreement to sell executed
in their favour (ii) there is a breach of provisions of Bombay
Land Ceiling Act (iii) the property sold to the writ applicants
was an undivided property, and at the time of execution of the
registered sale deed, specific shares of each individual has not
been mentioned therein (iv) the land purchased by the writ
applicants is a surplus land (v) the interest of the minor is also
involved and (vi) from the occupiers as shown in the 7/12
abstract, consent of 10 occupiers are not there in the sale
deed. These are the main grounds, on the basis of which, the
revision applications filed by the writ applicants were rejected
by the SSRD.
8. Learned senior advocate Mr. Shah further submitted that
when the settlement was arrived at inter se between all the
purchasers, and there was no dispute even from the sellers,
there was no reason available to the Mamlatdar as well as the
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higher revenue authorities to have rejected the applications
and not certify the entry Nos.10874 to 10885 dated
14.05.2010. It is submitted that this is a jurisdictional error
which is committed by the Mamlatdar by not certifying the
entry Nos.10874 to 10885 dated 14.05.2010, and therefore the
impugned orders passed by the Mamlatdar and then confirmed
by the higher revenue authorities are required to be quashed
and set aside.
9. Learned senior advocate Mr. Shah submitted that the
authorities below ought to have considered the settlement
arrived at between the co-purchasers, as also the fact that the
original sale deeds and the corrected sale deed have not been
canceled by any authorities at any stage, and as such, the
entries pursuant thereto are required to be mutated in the
revenue record. Moreover, no proceedings have been initiated
so far under the provisions of the Gujarat Agriculture Land
Ceiling Act, 1961, declaring the land of the writ applicants as
'surplus land'. He further submitted that while exercising
powers under the Code, the revenue authorities cannot
assume jurisdiction under any other enactment like Gujarat
Agriculture Land Ceiling Act, 1961, and as such, such cross-
utilization of powers is not permissible. Thus, the findings
arrived at by the authorities below are ex facie, perverse,
arbitrary, non-speaking, and as such, deserve to be quashed
and set aside.
10. Learned senior advocate Mr. Shah further submitted that
it is settled law as held by the Hon'ble Apex Court as well as by
the various High Courts that the revenue entries made in the
revenue record have primarily a fiscal value and they do not
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create any title over the land. It is also a settled law that going
by the language as provided under Section 135-C of the Code,
any person acquiring the interest, inter alia, by purchase of the
land has to report the transactions to the village accountant for
effect of mutation in the revenue record. The second proviso to
Section 135-C exempts the purchaser from making such report
to the village accountant if such transaction is represented by
the registered document. Therefore, it is well settled
proposition of law that there is no obligation on the part of the
person acquiring the right or the possession to report and it is
for the revenue authority to take necessary steps for the
purpose of mutating the names on the basis of the registered
sale deed. It is therefore submitted that it was legally
impermissible for the authorities below to raise any objection
and deny mutation of entry being sought for on the basis of a
registered sale deed by the writ applicants. Thus, it is
submitted that such findings arrived at by the authorities
below are erroneous and contrary to settled law. He further
submitted that even Section 44 of the Transfer of Property Act,
1882, empowers the co-owners to sell their undivided share in
the property without the consent of the other co-owners.
11. While reiterating, it is submitted that the findings arrived
at by the authorities below are erroneous, without any basis,
perverse and arbitrary and therefore when the action is
arbitrary, this Court should interfere with the impugned orders
passed by the authorities below. It is therefore urged that the
writ application deserves to be allowed and the Mamlatdar be
directed to post the entry in the revenue record on the basis of
the registered sale deed dated 08.01.2010/27.04.2010 in
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favour of the writ applicants at the earliest.
12. Reliance is placed on the decisions of this Court in the
case of (i) Narendrabhai Shantilal Parikh vs. State of Gujarat,
2023 (0) AIJEL-HC 247646 and (ii) Manubhai Chhotalal Barot vs.
State of Gujarat, 2023 (0) AIJEL-HC 247807.
13. On the other hand, learned AGP Mr. Jay Trivedi supported
the stand of the authorities and submitted that without
obtaining the consent of the persons whose names were
figuring in the Village Form, the name of the writ applicants
could not be permitted to be entered. Learned AGP submitted
that, in fact, the entries were mutated, however, when the writ
applicants of both the applications raised objections against
mutation of their respective entries, proceedings were initiated
before the Mamlatdar, and during the hearing of the said
proceedings materials were placed by the private parties
against each other, and from the said materials, the Mamlatdar
found that there was a breach of certain provisions of law. It
was also found that the names of the tenants are there in the
revenue record in respect of the subject land, and they have
not been taken into confidence at the time of execution of the
sale deeds. That apart, if the Hon'ble Court would peruse the
sale deeds, specific area and shares of each individual has not
been mentioned in the sale deed. Even the name of one minor
is also there in the sale deed through its guardian. Thus, apart
from the dispute inter se between the private parties, so many
other defects were also noticed by the Mamlatdar from the
materials placed before it, and as such, it declined to certify
the entries. Learned AGP further submitted that as per Section
135-D (8) of the Code, at the time of certifying the entry, if the
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certifying officer has a reason to believe that such mutation
entry violates or contravenes any of the provisions of the Act
or any other Act, he shall not certify such entry and shall
intimate the same with reasons in writing to the person
concerned, and keeping in mind the aforesaid provision, the
authority concerned has jumped to the conclusion that there is
a breach of provisions of certain enactments, and as such,
declined to certify the entries. The said order passed by the
Mamlatdar was confirmed upto the SSRD, and as such, there
are concurrent findings recorded by the authorities below. He
further submitted that in the challenge before the Collector,
the Collector, while rejecting the application of the writ
applicants, has recorded the finding to the effect that there is
breach of certain provisions of law, and therefore, direction
was issued to the Mamatdar & ALT, Umreth to initiate
appropriate proceedings under the provisions of the Gujarat
Land Ceiling Act. Accordingly, the Mamlatdar & ALT, Umreth
initiated proceedings under the Land Ceiling Act, which is still
pending before the competent authority for adjudication.
14. Learned AGP Mr. Trivedi further submitted that there is
no dispute with regard to mutation of entry in the revenue
record on the basis of registered document as per Section 135-
C of the Land Revenue Code as held in catena of decisions by
the Hon'ble Apex Court as well as by the various High Courts
that if any registered document is presented before any
competent revenue authority, seeking certification of entry,
then the concerned authority has to certify the same on the
basis of such registered document. It is an admitted position of
fact that, in the case on hand, entries were mutated, however,
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the same was then not certified due to the disputes having
been cropped up between the private parties. It is also not in
dispute that now the matter has been settled between the
private parties, and no civil litigation is pending between them
before any civil court, and therefore, in that eventuality,
appropriate order may be passed, directing the concerned
revenue authority to certify the entries keeping in mind the
mandate of Section 135-C as well as the settled proposition of
law, but with a rider that if breach of any of the provisions of
law is found out during the midst of the proceedings, in that
event, the authority concerned shall be at liberty to initiate
appropriate proceedings against the parties concerned.
15. Heard the learned advocates appearing for the respective
parties and perused the documents available on the record.
16. Though the entire chronology of events have already
been narrated in the preceding paragraphs, however, brief
reference at this stage is necessitated. It appears from the
record that the subject land was an ancestral property
originally owned by one Thakore Pruthviraj Mansinh, who died
leaving behind his two wives. Thus, after the sad demise of
Thakore Pruthviraj Mansinh, his two wives became the
absolute owners and occupiers of the subject land, out of
which, one wife has expired, and one is living. It also appears
from the record that there were total six heirs from the two
wives, i.e, three sons and three daughters, out of which, two
sons have passed away leaving behind their heirs, and thus,
there are in all total nine heirs including one son and his wife
and the heirs of the deceased sons, who sold out their part of
shares of the subject land to the writ applicants of Special Civil
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Application No.21906 of 2017 by way of a registered sale deed
dated 30.01.2010, whereas the three daughters have sold out
their part of shares to the writ applicants of Special Civil
Application No.21907 of 2017 by way of a registered sale deed
dated 08.01.2010/27.04.2010. The said documents were then
submitted before the Mamlatdar for mutation of entries in the
revenue record. However, at that time, disputes cropped up
inter se between both sets of purchasers with regard to the
area of the land purchased by them. Therefore, objections
were raised by both the sides against each other, which gave
rise to the proceedings before the Mamlatdar. However, it is an
admitted position of fact that, during the pendency of the
revenue proceedings, the dispute was settled between the
purchasers, and a settlement deed was also executed for the
same. On the basis of such settlement, a new and corrected
sale deed was executed in favour of the writ applicants of
Special Civil Application No.21906 of 2017, correcting the area
of the land from 75% to 55%. It is to be noted that there was
no dispute amongst the sellers at any point of time. Thus, it
appears that the dispute had already been settled between the
main contesting parties. It also appears that even the suit
pending before the civil court has also been culminated in
dismissal for want of prosecution.
17. It is argued on behalf of the writ applicants that the
authorities below have ignored such settlement arrived at
between the main contesting parties, and proceeded to pass
the impugned orders on technical grounds, which are, in fact,
the grounds to be decided and determined by the competent
civil court. Learned senior advocate has argued that as per the
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settled law, once the document is registered, and a mutation is
sought for on the basis of the said registered document, then
the concerned revenue authority has to give effect to the said
document by mutating the names of the purchasers as
mentioned in the sale deed. Moreover, the Mamlatdar cannot
reject a mutation entry application on grounds of complex title
disputes, as mutation entries serve a purely fiscal purpose and
do not confer or extinguish ownership rights. The proper forum
for title disputes is a civil court. The revenue authorities have
limited jurisdiction under the Gujarat Land Revenue Code and
they cannot act as a civil court to adjudicate complex
questions of property ownership or inheritance rights,
especially when disputes arise. It appears that the authorities
below, while rejecting the applications of the writ applicants,
recorded a finding that civil suit is filed by one of the parties
before the competent civil court in respect of the subject land.
The said finding can be said to be ex facie and perverse, as in
catena of decisions, it has been consistently held by the
Hon'ble Apex Court as well as various High Courts that mere
pendency of civil suit does not preclude the revenue authority
in mutating the entries in the revenue record, if a registered
document is presented in support thereof. Further, even
otherwise, if the revenue authorities find that a civil suit
regarding the title, or for any other dispute, is pending, in that
case also, they should reflect the mutation entry in the
records, but with an annotation that it is "subject to the
outcome of the pending civil suit". They should not refuse the
entry entirely solely because a suit is pending, nor should they
await the civil court's verdict before making the entry.
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18. At this stage, it is also required to be taken note of
second proviso to section 135-C, which reads thus:
"135-C xxx xxx xxx
xxx xxx xxx
Provided further that any person acquiring a right by
virtue of a registered document shall be exempted from
the obligation to report to the designated officer.
Explanation I xxx xxx xxx
Explanation II xxx xxx xxx "
19. As per the aforesaid provision, when a person has a
registered document executed in his favour acquiring certain
right, he has been exempted from reporting the acquisition of
right to the revenue authority. To this, apt is the judgment of
this Court in the case of Balvantrai Ambaram Patel Versus
State of Gujarat reported in 2014 (0) AIJEL-HC 232555.
Paragraphs 5.3 to 6.1 read thus:-
"5.3 As per Section 135-C of the Code extracted above,
any person who acquires right on any land or is able to
assert right of occupancy, ownership, mortgage, etc., it is
provided that he shall make report to the designated
officer. Second Proviso to the provision is material for the
purpose of the case on hand, which says that any person
acquiring a right by virtue of a registered document is
exempted from the obligation to make report to the
designated officer. The said Proviso in other way
recognizes the legal effect of a registered document by
virtue of which a person may have purchased the land.
He will be then able to assert his right as owner by virtue
of the registered sale deed itself from which, for him all
incidences of ownership would flow. Therefore once there
is a registered document of sale of land, the purchaser
would be entitled to get his name mutated in the revenue
records on that basis.
5.4 Section 135-D contemplates verification of the report
made to him under Section 135-C. Various provisions of
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Section 135- D envisage the procedure for verification
and making of necessary entries in the register of
mutations as well as certification thereof. Sub-section (2)
provides for intimation to all persons appearing on the
record of rights and who are interested in the mutation.
The designated officer is required to intimate them and
receive objections, if any, from such person. Sub-section
(4) provides for orders disposing of the Appeals. Sub-
section (5) provides that where no objection is raised
within a prescribed period of 30 days, the mutation entry
shall be certified.
5.5 A conjoint effect of aforesaid provisions is that in
cases of a claim made for mutation by a person in
capacity of owner on the basis of registered sale deed,
the designated officer is bound to enter his name as
having purchased the land by lawful mode of transfer. As
already noticed, a person purchasing the land by
registered sale deed is not supposed to make a report to
the designated officer for the purpose of entries in the
revenue records, as is contemplated in relation to other
cases. The working of the provisions of Sections 135-C
and 135-D obtained a position that a mutation entry has
to be made by the designated officer on the basis of the
registered document, in the instant case, a document of
sale. After making mutation entry in favour of such
person recognizing his claim on the basis of registered
document, the designated officer thereafter may follow
the procedure under Section 135-D, implying that the
competent officer may subsequently deal with the
objections received and dispose of the same in
accordance with the provisions of sub-sections of Section
135-D.
6. Therefore in all cases of claims for mutation based on
a registered document, the competent officer has to be
entered the name of the claimantowner-right holder. The
authority cannot insist for observing the requirements of
Section 135-D apriori and on that basis declined to enter
the name in the revenue records. The designated officer
in charge of the said function has no jurisdiction to
disregard the legal effect of the registered document,
and he cannot be permitted to do so even indirectly.
Once the petitioner purchased the land in question by
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virtue of registered sale deed, he is entitled to have his
name mutated in the revenue records. The reasons given
in the impugned order dated 04.02.2014 of the
Mamlatdar for not mutating the entry and insisting for
consent letters, etc., have no sanction of law and they do
not hold good in light of the statutory provisions noted
above.
6.1 Accordingly this petition is allowed. The order dated
04.02.2014 of respondent No.3-Mamlatdar (copy
produced at Annexure-A with the petition) is hereby set
aside. It is directed that respondent No.3 shall follow the
mandate of Section 135-C with regard to request of the
petitioner. It is simultaneously observed that the said
authority shall be at liberty to undergo and comply with
the provisions of Section 135-D in the event necessary."
20. Similarly, in Narendra Shantilal Parikh (supra), it has been
observed as under;
"10. At this stage, it is pertinent to note that the law with
regard to mutation of entry of a registered sale deed as
well as while mutation of the entry, the jurisdiction of the
revenue authorities has already been settled by this
Hon'ble Court in catena of decisions. It would be apt to
take note of the decision of this Court in case of
Gandabhai Dalpatbhai Patel vs. State of Gujarat & Others,
reported in 2005 (2) GLR 1370. The relevant observations
of the said decisions read, thus;
"9. It is the consistent view taken by this Court in
catena of judgments that the revenue authorities
while dealing with RTS proceedings had no
jurisdiction and/or authority to decide the question
of title and if there is any dispute with regard to title
the parties are to be relegated to the Civil Court. As
held by the Hon'ble Supreme Court in the case of
State of Gujarat VS. Patel Raghav Natha - AIR 1969
SC Page 1297 and judgment of this Court in the
case of Ratilal Chunilal Solanki & Ors. Vs. Shantilal
Chunilal Solanki - 1996(2) GLR 525 and Siddharth B.
Shah vs. State of Gujarat, the revenue authorities
cannot decide the disputed question of title to the
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property and they have to merely go by the
documents produced before them. Even this Court
has held in the case of Nathabhai Meraman Darji
(Supra) that when a document of registered sale
deed is produced before the authority, the revenue
authorities are bound to give effect to the same and
are not required to decide the question of title.
10. Even this Court in a recent judgment in the case
of L.R.s of Popat Khima Ramani and Ors. vs.
Collector, Rajkot and Ors., reported in 2003(1) GLH
30, has considered the scope of revenue authorities
while deciding the question with regard to mutation
entry and the powers under Section 135 and Rule
108, has held that revenue authorities are not to
decide the question about title and the revenue
authorities are to make necessary entries on the
basis of decision of Civil Court. It is further held in
the said judgment that the revenue authorities are
invested with limited powers under Section 135 and
they cannot assume to themselves certain powers
conferred on them by law and they cannot assume
jurisdiction of Civil Court. The revenue authorities
cannot decide validity of transaction on touchstone
of statutory provision occurring in some enactment
and that they cannot decide disputed question of
title. In fact, this Court has gone to the extent that
when a dispute as to the title arises the parties
have to go to the competent Civil Court. In the
present case, in fact the Civil Suit is pending
between the parties and the Civil Court is to decide
all these questions which are raised by the
petitioner in the present Special Civil Application
with regard to validity of the power of attorney, the
genuineness of sale deed, and the authority of
power of attorney holder on the basis of the power
of attorney. Considering the fact that the suit is
pending between the parties and that the petitioner
has challenged the legality and validity of the sale
deed before the Civil Court and that there is an
injunction in the said Suit, in fact the Secretary
(Appeals) has tried to strike the balance and has
tried to protect the interests of all the parties by
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directing that the factum of injunction granted by
the Civil Court should also be noted in the entry and
that the entry in favour of respondent No.5 would
be subject to the ultimate outcome of the suit
pending between the parties in which the legality
and validity of the sale deed is challenged. It cannot
be said that there is any illegality committed by the
Secretary (Appeals). On the contrary, the judgment
and order passed by the revisional authority, i.e.
Secretary (Appeals) is in consonance with the
provisions of Section 135 of the Bombay Land
Revenue Code and 108 of the Bombay Land
Revenue Rules and the view taken by the Hon'ble
Supreme Court as well as this Court with regard to
the powers of revenue authorities while dealing with
the question of mutation entries. The revenue
authorities are not required to consider with regard
to the genuineness of the sale deed, the powers
and authority of the power of attorney holder under
the power of attorney and the question with regard
to the title. What is required to be done by the Sub-
Registrar at the time when the sale deed was
executed cannot be permitted to be done by the
Mamlatdar and/or revenue authorities while
deciding the question with regard to mutation entry,
more particularly the entry in the record of rights is
only having a presumptive value and only for a
fiscal purpose of recovering and payment of
revenue and it does not confer any right, title or
interest in favour of any party in the property.
11. So far as submissions and arguments on behalf
of the petitioner that by virtue of the aforesaid
transaction that there would be a breach of
provisions of the Bombay Prevention of
Fragmentation Act as the land would be fragmented
and therefore also the respondent could not have
purchased the land in question and the said
transaction was in breach of provisions of the Act
and therefore also the entry in favour of the
respondent could not have been made on the basis
of the said sale. This aspect is already considered
by this Court in the case of Evergreen Apartment
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Cooperative Housing Society Vs. Special Secretary,
Revenue Department, Gujarat State, reported in
1991(1) GLR 113, and also in the case of Siddharth
B. Shah & Ors. Vs. State of Gujarat, reported in
1999(3) GLR Page 2527. This Court in the aforesaid
two judgments has considered the scope and ambit
of Rule 108 of the Bombay Land Revenue Rules and
the jurisdiction of the revenue authorities while
considering the RTS proceedings and has held as
under;
"So far as the proceedings under Section 108 of the
Rules popularly known as RTS proceedings are
concerned it is well settled that the entries made in
the revenue records have primarily a fiscal value
and they do not create any title. Such mutations
have to follow either the documents of title or the
orders passed by the competent authorities under
special enactments. Independently the revenue
authorities, as mentioned in 108 of the Rules,
cannot pass orders of cancelling the entries on an
assumption that the transactions recorded in the
entry are against the provisions of a particular
enactment. Whether the transaction is valid or not
has to be examined by the competent authority
under the particular enactment by following the
procedure prescribed therein and by giving an
opportunity of hearing to the concerned parties
likely to be affected by any order that may be
passed." Considering the judgment of this Court in
aforesaid two cases, there is no substance in the
argument and submission on behalf of the
petitioner to the effect that while considering the
RTS proceedings and making necessary entry in
favour of the respondents, the revenue authority
was also required to consider that by aforesaid
transaction there will be breach of provisions of
Fragmentation Act or not and the same is required
to be rejected." transactions recorded in the entry
are against the provisions of a particular
enactment. Whether the transaction is valid or not
has to be examined by the competent authority
under the particular enactment by following the
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procedure prescribed therein and by giving an
opportunity of hearing to the concerned parties
likely to be affected by any order that may be
passed."
Considering the judgment of this Court in aforesaid
two cases, there is no substance in the argument
and submission on behalf of the petitioner to the
effect that while considering the RTS proceedings
and making necessary entry in favour of the
respondents, the revenue authority was also
required to consider that by aforesaid transaction
there will be breach of provisions of Fragmentation
Act or not and the same is required to be rejected."
11. Now, keeping in mind the aforesaid proposition of law
as well as the facts of the present case, in my considered
opinion, the revenue authorities while exercising the
powers under the revenue jurisdiction appear to have
exceeded its jurisdiction by refusing to mutate the
registered sale deed entry on the ground that the
petitioner has not produced the details of land within the
Godhara Taluka. The entire crux for cancellation of the
mutation of entry is that the petitioner had not produced
the agricultural land certificate. In my considered opinion,
under the provision of Section 135-C of the Code, it is the
duty of the revenue authorities to give effect of
registered sale deed in the revenue records at the first
instance. Whether the petitioner is an agriculturist or not,
can be the subject matter in a different and independent
proceedings but, certainly, cannot be considered in the
revenue proceedings. In the instant case, however, if the
order of the Deputy Collector, Godhara dated 16.1.2016
is perused, it is abundantly made clear therein that the
petitioner has already produced the agricultural
certificate of the Mamlatdar, Halol dated 26.2.2012.
Under the circumstances, rejection of mutation entry on
that ground, even otherwise, could not have been
sustained.
12. Considering the further fact that now, the suit filed by
respondent No.6 seeking cancellation of the sale deed
has already been culminated into dismissal and that no
further appeal has been filed, the order of the competent
civil court is said to have attained its finality and thereby
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also, on that additional ground, the mutation of entry
pursuant to the registered sale deed has to be restored.
In view of the aforesaid facts and circumstances, the
impugned order passed by the revenue authorities is not
tenable under the law and thereby, requires to be
quashed and set aside."
21. Before parting, I may not forget to refer to Section 44 of
the Transfer of Property Act,1882 relied upon by the learned
senior advocate for the writ applicants, which reads thus;
"44. Transfer by one co-owner.-- Where one of two or
more co-owners of immoveable property legally
competent in that behalf transfers his share of such
property or any interest therein, the transferee acquires
as to such share or interest, and so far as is necessary to
give, effect to the transfer, the transferor's right to joint
possession or other common or part enjoyment of the
property, and to enforce a partition of the same, but
subject to the conditions and liabilities affecting at the
date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house
belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle
him to joint possession or other common or part
enjoyment of the house."
22. The aforesaid Section 44 of the TPA provides for the right
of the co-owner to transfer his share in the joint property. In
doing so, Section 44 provides that where one or more of the
co-owners of an immoveable property transfer their share or
any interest in such property, the transferee acquires in
respect of such share or interest and as far as necessary, the
transferor's right to joint possession or other common or part
enjoyment of the property. Thus, Section 44 of the TPA does
not put an embargo on the sale by the co-owner of the
unpartitioned/undivided share in joint property prior to the
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partition.
23. For the foregoing reasons, both the writ applications
succeed and are hereby allowed. Consequently, the impugned
orders dated 06.08.2011 passed by Mamlatdar in
RTS/Vashi/SR/No.8/2010 and connected matter being Nos.41-
52/2010, order dated 25.02.2015 passed by the Deputy
Collector in RTS/Appeal No.198/2012 and RTS/Appeal No.278
of 2011, order dated 01.12.2016 passed by the District
Collector in RTS/RS/No.388 of 2015 & RTS/RS/No.480 of 2015,
and order dated 24.08.2017 passed by the respondent-SSRD in
Revision Application No.MVV/HAKAP/Anand/28/17 and Revision
Application No.MVV/HAKAP/Anand/30/17, are hereby quashed
and set aside. The concerned revenue authority is hereby
directed to restore and certify Mutation Entry Nos.10874 to
10885 and 10848 in the revenue records pursuant to the
registered sale deed, as mandated in Section 135-C of the
Code.
24. Needless to clarify that the observations made herein
above in this judgment, shall not come in the way of the
revenue authorities in initiating any proceedings, if breach
and/or violation of any of the provisions of law is found out
during the course of the revenue proceedings.
25. Rule is made absolute to the aforesaid extent. No order
as to costs.
(DIVYESH A. JOSHI,J)
VAHID
