Gujarat High Court
Varsing Madiya Bhuriya vs Govt Of Gujarat on 9 October, 2025
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Reserved On : 09/07/2025
Pronounced On : 09/10/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8354 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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Approved for Reporting Yes No
No
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VARSING MADIYA BHURIYA & ORS.
Versus
GOVT OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESENTATIVES for
the Petitioner(s) No. 2
MS TRUSHA K. PATEL, SR. COUNSEL with MR NAYAN D. PAREKH(5010)
for the Petitioner(s) No. 1,2.1,2.10,2.2,2.3,2.4,2.5,2.6,2.7,2.8,2.9,3,4
MS FORUM BIMAL SUKHADWALA AGP for the Respondent(s) No. 1,2,3,4
MR Y. M. THAKKAR(902) for the Respondent(s) No. 5,6,8
RULE SERVED for the Respondent(s) No. 7
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
CAV JUDGMENT
1. In the present Special Civil Application, the petitioners have
prayed for the following reliefs:-
"(A) Kindly admit and allow this petition;
(B) 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 order dated 11.05.1999
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passed by the Dy. Secretary, Revenue Department,
Government of Gujarat - respondent no.1 herein and also the
order of Dy. Collector and Collector in the interest of justice;
(C) declare the entry No.312 recorded before the concerned
authority is legal and valid and further to declare that it is not
required to be changed.
(D) stay the orders of the Dy. Secretary, Revenue
Department, Dy. Collector and Collector, pending the
admission, hearing and final disposal of this petition.
(E) Call for the records and proceedings, Dy. Collector and
Collector in this case."
(F) remand the case before the Mamlatdar of Garbada
Taluka who is the concerned authority and direct the
Mamlatdar to examine and investigate and pass appropriate
decision in the interest of justice and equity."
2. The factual matrix in the present case is that the petitioners
claim to be the cousin brothers of the contesting respondent Nos.5
to 8 and in possession of the land bearing survey No.112
admeasuring 13 Acres 28 gunthas in Bhev Village. It is the case of
the petitioners that the father of the petitioners viz. Madiya
Kanjibhai was the younger brother of the father of the contesting
respondent Nos.5 to 8. It is the further case of the petitioners that
by way of partition between the brothers, the subject land came into
the share of the father of the petitioners viz. Madiya Kanjibhai and
accordingly, the mutation entry No.312 dated 11.01.1951 came to
be effected in the revenue record. That the said mutation entry also
came to be certified on 14.01.1954.
2.1 That the contesting respondent Nos.5 to 8 challenged the said
mutation entry No.312 dated 11.01.1951 by filing R.T.S Appeal
No.47 of 1991 after a period of almost 39 years on the ground that
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the father of the petitioners is not related to the respondent Nos.5
to 8 herein and is not the brother of their father as claimed by the
petitioners. It is the further case of the contesting respondent Nos.5
to 8 that the subject land was always in possession of the family of
the contesting respondent Nos.5 to 8. When the father of the
contesting respondent Nos.5 to 8 viz. Vinjhabhai Kanjibhai expired,
they were minors. Upon attaining the majority, their names came to
be mutated in the revenue records by way of heirship being
mutation entry No.310 dated 11.01.1951. It was the further case of
the contesting respondents that on the very same day, their names
came to be deleted and another entry being mutation entry No.312
came to be entered in favour of the father of the petitioners herein
on the ground that there was a partition in the family and the
subject land came to the share of the father of the petitioners. The
said R.T.S Appeal No.47 of 1991 came to be dismissed by the
learned Deputy Collector, Dahod, vide order dated 24.07.1991 on
the ground that the mutation entry No.312 dated 11.01.1951 was
effected after due procedure by the Talati-cum-Mantri. Further,
there was an unusual delay of 39 years in challenging the said
mutation entry, which was based on the oral partition. Accordingly,
the appeal came to be disposed of affirming the mutation entry
No.312 dated 11.01.1951.
2.2 Aggrieved, the contesting respondent Nos.5 to 8 filed the
R.T.S Revision Application No.57 of 1991 before the learned
Collector, Panchmahals at Godhra. The learned Collector, by the
order dated 21.03.1992, allowed the revision application of the
contesting respondents and remanded the matter back to the
learned Deputy Collector for decision afresh on merits. The learned
Collector enumerated various deficiencies in the order passed by
the learned Deputy Collector and while remanding the case back to
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the learned Deputy Collector, it was directed that the learned
Deputy Collector shall give appropriate findings in respect of the
mutation entry Nos.310 and 312 dated 11.01.1951 and whether the
contesting respondents herein were major when their heirship entry
came to be mutated. It was further directed that the learned Deputy
Collector shall also render a finding on the pedhinama which has
been produced on record by the contesting respondents. It was
observed that both the mutation entries Nos.310 and 312 were
effected on the same day on the basis of oral partition. However,
there is no detail in respect of the lands which have come in the
share of the contesting respondents after partition. Further, the land
being new tenure land, prior permission before effecting oral
partition ought to have been obtained. On these grounds, the
learned Collector was pleased to remand the case back to the
learned Deputy Collector for fresh consideration.
2.3 After the remand, the learned Deputy Collector, in R.T.S.
Remand Case No.9 of 1993, was pleased to allow the appeal of the
contesting respondents holding that the petitioners did not produce
any documents on record or made any submissions. Further, on the
perusal of the revenue records, it is found that since the subject
land was new tenure land, prior permission was required for
effecting oral partition, without which, the mutation entry could not
have been effected in the name of the father of the petitioners.
Further, it was held that the father of the petitioners herein has not
produced pedhinama of his family at the time of effecting mutation
entry, nor at the time of hearing. The mutation entry No.312 seems
to have been effected only on the oral statement of the father of the
petitioners. It was further held that the petitioners are the residents
of different village and the panchas have also placed on record an
affidavit in support of the said fact. It was also specifically held that
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the petitioners herein are not relatives of the contesting
respondents. The learned Deputy Collector also held that at the time
of effecting the mutation entry No.312 dated 11.01.1951, the
contesting respondents did not appear to be major as their
statements were not recorded while effecting such entry. The
learned Deputy Collector also held that that the contesting
respondents were in possession of the subject land all throughout.
In view of the aforesaid findings, the appeal of the contesting
respondents came to be allowed and the mutation entry No.312
dated 11.01.1951 came to be set aside.
2.4 Aggrieved, the petitioners preferred R.T.S. Appeal No.13 of
1995 before the learned Collector, Panchmahal at Godhra. The
learned Collector, after independently perusing the revenue records,
held that the father of the petitioners never tried to enter his name
in the revenue record of the subject land during the lifetime of the
father of the contesting respondents. Further, the petitioners were
the residents of a different village. It was observed that the subject
land was purchased by the father of the contesting respondents viz.
Vinjhabhai Kanjibhai and their grandfather on 15.03.1923 vide
mutation entry No.12. Thereafter, upon the death of Vinjhabhai
Kanjibhai, the mutation entry No.310 dated 11.01.1951 came to be
effected by heirship in the name of the contesting respondents. The
learned Collector observed that from the date of purchase of the
subject land on 15.03.1923, the father of the petitioners never made
an application for entering his name in the revenue record being the
brother of Vinjhabhai Kanjibhai, i.e. father of the contesting
respondents. It was observed that it seems that by connivance with
the Talati, the father of the petitioners entered his name after the
death of the father of the contesting respondents. The learned
Collector further observed that a perusal of the revenue records
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does not show that the father of the petitioners was co-owner of the
subject land at any point of time or even while effecting the
mutation entry No.312 dated 11.01.1951. In view of the aforesaid
findings, the learned Collector dismissed the revision application of
the petitioners.
2.5 Aggrieved, the petitioners preferred the revision application
before the learned Deputy Secretary (Appeals), Revenue
Department. The learned Deputy Secretary (Appeals), after hearing
both the parties and perusing the record, dismissed the revision
application on the basis of the findings rendered by the revenue
authorities below. Aggrieved, the petitioners have filed the present
Special Civil Application.
3. The learned senior counsel Ms. Trusha Patel appearing for the
petitioners submits that the subject land originally belonged to
Kanjibhai, who had two sons Madiya Kanji and Vinjha Kanji and the
subject land was an ancestral property. She further submits that as
per the tradition, the subject land was running in the name of elder
brother Vinjha Kanji and that upon his death, the name of the
contesting respondents came to be mutated by entry No.310 dated
11.01.01951. Since there was a joint possession, oral partition had
taken place and the subject land came to be recorded as to have
come to the share of father of the petitioners and it was recoded
that the possession of the same was also handed over to him on the
basis of oral statement recorded by Talati. She submits that the said
mutation entry No.312 came to be also certified on 14.01.1954. She
submits that thus, the subject land was running in the name of the
father of the petitioners since 11.01.1951. The learned senior
counsel submits that after a delay of more than 39 years, the
contesting respondents herein have challenged the mutation entry
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No.312 effected in favour of the father of the petitioners. She
submits that the said appeal came to be dismissed by the learned
Deputy Collector on the ground that the mutation entry Nos.310 and
312 were effected on the same day on the basis of the statements
made by the parties and the signatures of the parties. She submits
that the mutation entry No.312 was effected on the basis of the
statements of the contesting respondents herein and father of the
petitioners before the Talati. She submits that the learned Deputy
Collector, also noted that there was a delay of 39 years in preferring
the appeal and the same was not liable to be condoned, as the
appeal was admitted, therefore the same was adjudicated on
merits. She submits that in the revision proceedings, the learned
Collector found certain deficiencies and while recording that the
delay had been condoned by the learned Deputy Collector, the case
was remanded back for fresh adjudication on merits. She submits
that the revenue authority, in the remand proceedings, did not
consider the issue of gross delay in challenging the mutation entry
No.312 dated 11.01.1951. She submits that it was imperative on
behalf of the revenue authority to deal with the issue of delay. She
submits that in the remand proceedings, the appeal could not have
been entertained on merits without the aspect of delay being
adjudicated. She submits that in the remand case, none of the
authorities have rendered any finding on the issue of delay of 39
years. She submits that even if it is assumed that the contesting
respondents were minor on the date of effecting the mutation entry
No.312, then also, the same ought to have been challenged
immediately upon their attaining the majority. She submits that the
impugned orders be set aside only on the ground of gross delay.
The learned senior counsel further submits that it was erroneous to
hold that since the land was new tenure, prior permission was
required to effect the mutation entry on the basis of oral partition.
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She submits that vide Government Resolution dated 15.03.1996, it
is clarified that even in the case of new tenure lands which are
running in the name of elder brother, upon his death, such land can
be mutated in the name of his heirs or his siblings. The learned
senior counsel further submits that the revenue authorities have
also erred in not appreciating the fact that whether the parties in
the present case were relatives or not can only be decided by the
Civil Court in appropriate proceedings and the revenue authorities
could not have gone into the said aspect. She submits that the
contesting respondents herein had also filed a suit alleging fraud in
respect of the subject land. She submits that the said suit was
dismissed for default on 11.10.2006 and therefore, the issue of
fraud can also not be gone into by the revenue authorities. The
learned senior counsel finally submits that in case of family partition
by oral agreement, there are relevant circulars issued by the State
Government to record such oral transactions and that such revenue
entries have presumptive value. She, therefore, submits that the
impugned order be set aside and the Special Civil Application be
allowed.
4. The learned counsel Mr. Y. M. Thakkar appearing on behalf of
the contesting respondents Nos.5 to 8 submits that the contesting
respondents were minor when their father passed away in the year
1948 and after about three years, their names came to be mutated
by the Talati vide mutation entry No.310 dated 11.01.1951. He
submits that on the very same day, the father of the petitioners,
who claims to be the uncle of the contesting respondents herein,
also got his name mutated vide mutation entry No.312 on the
ground that there was oral partition between the parties. The
learned counsel submits that the contesting respondents were
minor at the time when their names came to be mutated on
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11.01.1951. The learned counsel submits that the entry No.312
came to be challenged by the contesting respondents in the year
1991 when it was brought to the notice to the contesting
respondents that their names had been deleted on the same day
when entry No.312 was mutated in the revenue record. The said
appeal came to be rejected observing that there was a delay of 39
years. That thereafter in Revision Application No.57 of 1991 against
the order of the learned Deputy Collector, the learned Collector
condoned the delay and remanded case for re-adjudication on
merits. The learned counsel for the respondents submits that the
said order was not challenged and therefore, the order condoning
the delay by the learned Collector had become final. He submits
that in the remand proceedings, the petitioners, therefore, never
raised the issue of delay. The learned counsel submits that the issue
of delay has been raised at the time of final hearing of this petition
and cannot be permitted to be raised in view of the fact that the
delay was condoned vide order dated 21.03.1992. The learned
counsel for the contesting respondents further submits that there is
a concurrent finding of fact by the revenue authorities that the
petitioners are not relatives of the contesting respondents and the
said factum has not been disapproved by the petitioners at any
point of time. The learned counsel submits that the mutation entry
in favour of the father of the petitioners is on the basis of an oral
partition. The father of the petitioners was not the brother of the
father of the contesting respondents and therefore, he was never
co-owner of the land in question. He, therefore, submits that the
revenue authorities below have rightly held that in absence of any
relation between the parties, the mutation entry No.312 based on
the oral partition is in connivance with the Talati. He submits that
the said mutation entry No.312 has rightly been found to be illegal
and came to be set aside by the revenue authorities. The learned
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counsel submits that the contesting respondents had placed on
record the affidavit of the adjoining land owners before the revenue
authorities to prove that the respondents were in possession of the
subject land till date and that the petitioners were not the residents
of the same village. The learned counsel submits that in light of the
facts as recorded by the revenue authorities and the revenue
records in the name of the ancestors of the contesting respondents,
the impugned orders passed by the revenue authorities are just and
proper and the Special Civil Application be dismissed.
5. Heard the learned counsels for the parties, considered the
submissions and perused the documents on record.
6. In the present case, it is not in dispute that the subject land
was originally purchased by the father and grandfather of the
contesting respondents vide mutation entry No.12 dated
15.03.1923. That thereafter, the said mutation entry came to be
certified on 29.04.1923. When the father and grandfather of the
contesting respondents expired, the contesting respondents were
minors. Vide mutation entry No.310 dated 11.01.1951, the name of
the contesting respondents came to be entered into the revenue
records in respect of the subject land. On the very same day, the
father of the petitioners made an oral statement to the Talati that
he was the uncle of the contesting respondents and that by way of
oral partition in the family, the said land has come to his share and
accordingly, the Talati entered the name of father of the petitioners
by mutation entry No.312 on the same day i.e. on 11.01.1951. The
disputed mutation entry No.312 in favour of the father of the
petitioners is based on an oral partition within the family as
recorded in the revenue records. The father of the petitioners has
not produced any pedhinama to show his common ancestry with the
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contesting respondents. The petitioners herein are also the
residents of different village namely Manikyar. There was no
evidence on record produced by the petitioners to show that they
are immediate relatives of the contesting respondents and that their
grandfather is also Shri Kanji Maghjibhai. Further, it has been
recorded by the revenue authorities that the father of the
petitioners never took any steps to mutate his name in the revenue
records after the death of father of the contesting respondents
somewhere in the year 1947-1948 till 1951 and till the name of the
contesting respondents came to be mutated by mutation entry
No.310. The learned Collector has also observed in the order that
the father of the petitioners has tried to take the advantage of
common name Kanjibhai and tried to enter his name in the revenue
record on the basis of oral partition in connivance with the Talati.
The learned Collector has further observed that the copies of the
statements, as alleged to have been relied upon at the time of
mutating the revenue entry No.312, are not found in the revenue
records maintained by the revenue authorities. The revenue
authorities have also taken note of the fact that the land in question
was new tenure land and therefore, prior permission for effecting
the entry of oral partition was required to be taken. The revenue
authorities have recorded several irregularities in effecting the
mutation entry No.312 dated 11.01.1951. The learned senior
counsel for the petitioners could not rely upon any material on
record to show that the findings as arrived at by the revenue
authorities below are erroneous.
7. As far as the issue of delay of 39 years in challenging the
mutation entry No.312 dated 11.01.1951 is concerned, the learned
senior counsel for the petitioners has submitted that the issue of
delay can be raised at any stage and the Courts are duty bound to
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consider the same. In the present case, the delay in preferring the
appeal has been condoned by the learned Collector vide order dated
21.03.1992 while remanding the matter back to the learned Deputy
Collector for consideration afresh. This order has not been
challenged by the petitioners and thus, the order condoning the
delay of 39 years had become final. Further, neither in any of the
remand proceedings nor in the memo of the present petition, the
petitioners have raised the issue of delay. Once the order of
condonation of delay has become final, the said issue cannot be
raised in the remand proceedings as well as in the present case.
Thus, the contention in respect of delay as raised by the learned
senior counsel for the petitioners deserves to be rejected. The
learned senior counsel for the petitioners also could not
demonstrate that the petitioners have common ancestry and are
closely related to the contesting respondents. Also, the petitioners
are not the residents of the same village as the contesting
respondents. The findings rendered by the revenue authorities need
no interference. The same are based on cogent reasons.
8. In view of above observations and reasons, the Special Civil
Application is devoid of merits and is accordingly dismissed.
Rule is discharged.
No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
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