Gujarat High Court
Mavjibhai Shamjibhai Patel vs State Of Gujarat on 28 February, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/21946/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21946 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MAVJIBHAI SHAMJIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR THAKORE, SENIOR COUNSEL WITH MR SATYAM Y
CHHAYA(3242) for the Petitioner(s) No. 1
for the Respondent(s) No. 10,11,11.1,11.2,11.3,11.4,11.5,2,3,4,5,6,7,9
MS AISHVARYA GUPTA, AGP for the Respondent(s) No. 1
HEMALI D SONI(8450) for the Respondent(s) No. 8
MR VC VAGHELA(1720) for the Respondent(s) No. 8
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/02/2020
CAV JUDGMENT
1. Rule returnable forthwith. Ms. Aishvarya Gupta, learned Assistant Government Pleader appearing for the State Page 1 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT and Mr. V.C. Vaghela, learned advocate for the respondent no. 8 waive service of notice of rule. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing today.
2. By way of the present petition, the petitioner has prayed to quash and set aside the impugned order dated 30.09.2019 passed by respondent no. 5 - Mamlatdar in RTS Dispute Case No. 34 of 2019 and to direct the respondent no. 5 - Mamlatdar to certify entry no. 4712 mutated in favour of the petitioner pursuant to the registered sale deed dated 11.07.2018 executed in favour of the petitioner by respondents no. 9 & 10 with respect to the land in question.
3. The land in question is land bearing Survey No. 419 admeasuring 13,959 sq. mtrs of village Abhava, Taluka - Majura, District - Surat. One Jayantibhai Balubhai was the original owner of the land. On 17.08.1987 the said land was purchased by deceased Hanskamal Atmaprakash Grover. Pursuant to such a sale, by a registered sale deed, entry no. 959 was mutated in favour of Hanskamal Grover on 20.08.1987. Later the names of Hanskamal Grover's father and sister Sudhaben Gandhi were entered vide mutation entry no. 982 which was certified on 22.12.1988. The family members, Sudhaben and widow, on Hanskamal Grover's death sold the lands on 24.05.2007/12.06.2007 in favour of respondent no. 8 Kantilal Nagjibhai (petitioner of Special Civil Application No. 13977 of 2019). Accordingly, on 21.09.2007, entry no. 3184 was mutated in the favour of respondent no. 8 as a result of a registered sale deed and the same was certified on 09.07.2008.
Page 2 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT3.1 Legal heirs of original owner Jayantibhai Balubhai challenged the revenue entry no. 3184 which was entered in favour of respondent no. 8 before the Deputy Collector and the appeal being allowed, entry no. 3184 was cancelled. Respondent no. 8 preferred a revision before the Collector and thereby entry no. 3184 was restored in favour of respondent no. 8. The order was confirmed by this Court in Special Civil Application No. 23458 of 2007 and entry no. 3611 was mutated on 25.12.2011.
3.2 In the interregnum, the heirs of Jayantibhai - original owner filed suit being Civil Suit No. 183 of 2007 against the heirs challenging the original sale of 2007 in favour of respondents which was settled between them. As a result of which the sale in favour of Kantibhai Nagjibhai - respondent no. 8 stood confirmed as the original first sale of 1987 in favour of the first seller Hanskamal Grover was confirmed in such settlement. Entry no. 3612 was therefore mutated on 25.12.2011.
3.3 The respondent no. 8 then sold the land to the respondents no. 9 and 10 by a registered sale deed on 27.06.2012. Pursuant to such a sale deed, entry no. 3700 was mutated in favour of respondents no. 9 and 10 on 13.09.2012. This entry was not challenged by respondent no. 8. Between the period when the respondent no. 8 sold the land to respondents no. 9 and 10, the Circle Officer vide his order dated 22.05.2012 cancelled the mutation entry in the name of respondent no. 8 on the ground that the land was mortgaged to the Rander Peoples' Cooperative Bank Limited -
Page 3 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENTrespondent no. 7 by Hanskamal Grover, the first purchaser and therefore a charge was to be recorded.
3.4 After a round of remand, the Collector on a revision filed by respondents no. 8, 9 and 10, by order dated 23.01.2017 allowed the same. On 07.11.2017, the land was converted into N.A and entry no. 4487 was mutated and accordingly certified. On 11.07.2018, the petitioner Mavjibhai Shamjibhai Patel purchased the land from respondents no. 9 & 10 whose names continued in the revenue record. A consideration of Rs.7 crores and forty lacs was paid to respondents no. 9 and 10 by the petitioner for the sale of land. The respondent no. 7 - bank challenged the order of the Collector dated 23.01.2017 before the Special Secretary. The Special Secretary, vide his order dated 03.05.2019 allowed the revision ordering that the charge on the land be certified.
3.5 The order of the Special Secretary is the subject matter of challenge by respondent no. 8 in Special Civil Application No. 13977 of 2019 which was filed by respondent no. 8 on 16.07.2019. However, on 03.07.2019 mutation entry no. 4712 was entered in the revenue records pursuant to the registered sale deed of 11.07.2018 between the seller - respondents no. 9 & 10 to the present petitioner - purchaser. In Special Civil Application No. 13977 of 2019 filed by respondent no. 8 challenging the order of Special Secretary recording charge in favour of the Bank on 22.08.2019, this Court passed an order issuing notice and directed that the revenue authorities shall not alter the revenue entry which existed on that date with regard to the land in dispute.
Page 4 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT3.6 After filing of the petition on 16.07.2019, the petitioner of Special Civil Application No. 13977 of 2019 - respondent no. 8 herein, filed a Special Civil Suit No. 267 of 2019 on 31.07.2019 challenging the sale deed he executed in favour of respondents no. 9 and 10 on the ground that the respondents no. 9 and 10 owed the respondent no. 8 an amount of Rs.11,63,64,000/-. The present petitioner is arrayed as defendant no. 3 therein and a prayer is made to cancel the sale deed entered into by respondents no. 9 and 10 - defendants no. 1 and 2 in favour of the petitioner. There is however no injunction in the said suit. The petitioner also filed objections on 02.08.2019 challenging the certification of mutation entry no. 4712 in favour of the petitioner.
3.7 By the impugned order dated 30.09.2019 passed by the Mamlatdar in RTS Dispute Case No. 34 of 2019, the Mamlatdar allowed the objection of respondent no. 8 on the ground that the entry on 03.07.2019 needs to be cancelled as the High Court in Special Civil Application No. 13977 of 2019, on 22.08.2019 has passed an order directing the authorities to maintain satus quo of the revenue entry. This order is under challenge by the petitioner who is a second purchaser in line from the respondent no. 8 (petitioner of Special Civil Application No. 13977 of 2019) who in turn sold the land to respondents no. 9 and 10 who in turn have sold the land to the petitioner.
4. Mr. Mihir Thakore, learned Senior Counsel has appeared with Mr. Satyam Chhaya, learned advocate for the petitioners. Mr. Thakore, on the basis of the narration of facts and dates would submit as under:
Page 5 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT(a) The lands in question were purchased by respondent no. 8 in 1987 from respondent no. 11. Thereafter, he had executed a sale-deed in favour of respondent nos. 9 and 10. The petitioner, in turn, had purchased the land by registered sale-deed on 11.07.2018, from the respondents no. 9 and 10. When in 2012 the Deputy Collector cancelled entry no. 3184 in favour of respondent no. 8 on the objection of the Bank and that order was challenged before the Collector, the Collector by order of 23.01.2017 held that respondent no. 7 Bank failed to establish that the land in question was mortgaged to the Bank as there were other parcels of land too. When the bank in revision succeeded before the Special Secretary, the respondent no. 8 with support of respondent no. 9 and 10 has filed Special Civil Application No. 13977 of 2019 challenging the order. In other words, both the petitioner of Special Civil Application No. 13977 of 2019 - respondent no. 8 herein and respondents no. 9 and 10 before this Court, in the aforesaid petition support the order of the Collector dated 23.01.2017.
(b) Obviously by virtue of the respondents no. 8, 9 and 10 being subsequent purchasers in line from respondent no. 11 in which context the Bank's say of recording a charge is accepted by the SSRD and is a subject matter of challenge by respondent no. 8, the parties have a common cause. Therefore, respondent no. 8 who executed a sale deed in favour of respondents no. 9 & 10 and revenue entry no. 3700 posted in favour of Page 6 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT respondents no. 9 and 10 on 27.06.2012 has not been challenged by respondent no. 8.
(c) The order of status quo on 22.08.2019 in Special Civil Application No. 13977 of 2019 is passed wherein the petitioner therein i.e. the respondent no. 8 has not disclosed full facts. The present petitioner was the purchaser of the property from respondents no. 9 & 10 by virtue of a sale deed of 11.07.2018. Entry no. 4712, which is the subject matter of challenge in the present petition, was mutated in favour of the petitioner on 03.07.2019. Special Civil Application No. 13977 of 2019 challenging the order of SSRD in context of recording of charge of the bank was filed on 16.07.2019. In that petition, in fact the present petitioner would have a common cause.
On 31.07.2019, the petitioner of Special Civil Application No. 13977 of 2019 files a Special Civil Suit No. 267 of 2019 challenging sale deed entered into between him and respondents no. 9 and 10 and by them in turn with the present petitioner. These facts are not disclosed. No prohibitory order exists in the suit.
The respondent no. 8 files objections on 02.08.2019 to Entry No. 4719 mutated on 03.07.2019 in favour fo the petitioner. The dispute regarding charge of Bank in Special Civil Application No. 13977 of 2019 has nothing to do with the sale, even then because of the status quo order passed on 22.08.2019 in Special Civil Application No. 13977 of 2019, the Mamlatdar cancels the entry no. 4712 which was recorded in favour of the present Page 7 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT petitioner.
(d) Entry No. 4712 was mutated pursuant to a registered sale deed of 11.07.2018 in favour of the petitioner. Prior thereto the mutation entry no. 3700 was recorded and certified on 27.06.2012 in favour of respondents no. 9 and 10, the previous purchasers to whom respondent no. 8 had sold the land. That entry was never challenged by the respondent no. 8.
(e) Special Civil Application No. 13977 of 2019 pertains to an entirely different dispute, where in fact respondent no. 8, the petitioner therein and respondents no. 9 and 10 have a common cause. Despite this, after filing Special Civil Application No. 13977 of 2019, the respondent no. 8 files a civil suit on 31.07.2019, challenging the sale deeds that he executed in 2012 and in turn by respondents no. 9 and 10 seeking prohibitory orders. Mutation entry no. 4712 is recorded on 03.07.2019 in favour of the present petitioner. The respondent no. 8 objects to such entry on 02.08.2019 and the Mamlatdar cancels the revenue entry entered pursuant to a registered sale deed on the basis of a status quo order of 22.08.2019 in Special Civil Application No. 13977 of 2019.
(f) Inviting the attention of this Court to Section 135(C) of the Land Revenue Code, it is submitted that once the petitioner was the purchaser by virtue of a registered sale deed dated 11.07.2018 the revenue authority had no option but to certify the entry.
Page 8 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT(g) Reliance was placed on the decisions of this Court in the case of Gandabhai Dalpatbhai Patel vs. State of Gujarat and Others reported in 2005(2) GLR 1370 and in the case of Nathubhai Meraman Darji vs. Special Secretary (Appeal) reported in 1996(3) GCD
691.
5. Mr. V.C. Vaghela, learned advocate has appeared for the respondent no. 8 - petitioner of Special Civil Application No. 13977 of 2019. He has submitted as under:
(I) The respondent no. 8 had sold the land to the respondents no. 9 and 10 for which the respondents no.
9 & 10 had paid Rs.11,00,000/-. A saudachitthi was prepared and so was a saatakhat prepared. As per the saudachitthi an amount of Rs.11,63,64,000/- was outstanding from the respondents no. 9 and 10 which remained to be honoured. Without honouring such commitment, as per the saudachitthi, saatakhat and MOU, the respondents no. 9 and 10 sold the land to the petitioner on 11.07.2018. Revenue entry in favour of the petitioner was posted on 03.07.2019. Therefore, for honouring the commitment of the saatakhat etc. Special Civil Suit No. 267 of 2019 has been filed. For revenue entry no. 4712, objections were filed on 02.08.2019. Since no stay was granted in the suit, AO has been filed. Objections to the revenue entry have rightly been allowed and entry cancelled due to pending litigations.
(II) He submitted that due to such pending disputes sale Page 9 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT is not complete between respondent no. 8 and respondents no. 9 & 10.
(III) No steps were taken after the registration of sale deed on 11.07.2018 for one year till 03.07.2019 to have the revenue entry mutated in the favour of the petitioner.
(IV) The Mamlatdar by the impugned order has not committed any illegality. In exercise of his powers under Section 135D(3) the objections have been recorded due to the litigation pending and the entry has therefore been rightly cancelled. Detailed objections have been considered by the Mamlatdar and the entry no. 4712 has been rightly cancelled.
6. Having taken into consideration the submissions and facts tracing the history of the land's ownership, passing from the original owner Jayantibhai Balubhai to Hanskamal Grover and then his family which in turn sold the land to the respondent no. 8 (Petitioner of Special Civil Application No. 13977 of 2019) who in turn next sold the lands to respondents no. 9 & 10 from whom the present petitioner is the last purchaser in line, what emerges on record is as under:-
(A) The respondent no. 8 had become the owner of the subject land on it being sold to him by registered sale deeds of 24.05.2007/12.06.2007. Accordingly on 09.07.2008 an entry no. 3184 was mutated in favour of the respondent no. 8.Page 10 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT
(B) The challenge to the mutation entry no. 3184 at the hands of the heirs of the original owners Jayantibhai Balubhai failed in the revenue proceedings as this Court in a petition being Special Civil Application No. 23458 of 2007, on 28.09.2007 (in a petition filed by respondent no. 8) a photocopy of village form no. 7 & 12 showing the name of respondent no. 8 as on 21.09.2007 was placed on record and it was observed that such entry was subject to final outcome of the Civil Court's adjudication in the matter.
(C) The Special Civil Suit No. 183 of 2008 which was also filed by the predecessor of Hanskamal i.e. heirs of Jayantibhai was settled confirming the sale deed executed in favour of respondent no. 8 on 24.05.2007. Entry no. 3612 was therefore certified in favour of respondent no. 8 on 25.12.2011.
(D) The respondent no. 8 having purchased the land in the year 2007 and which in turn was sold by him to the respondents no. 9 & 10, the Circle Officer, vide his order dated 22.05.2012 cancelled entry no. 3647 by which name of the Rander People's Bank as a charge to the property was entered. The Deputy Collector by an order dated 29.01.2015 restored the entry of recording a charge in favour of the Bank.
This order was challenged by both respondent no. 8 - the first purchaser and the subsequent purchasers being respondents no. 9 & 10 by filing RTS Revision No. 62 of 2015 before the Collector. The revision was allowed. It must be therefore noted that both the respondent no. 8 Page 11 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT as well as respondents no. 9 & 10 had a common cause and therefore succeeded in seeing that the entries made in their favour respectively Entry no. 3184 mutated in favour of respondent no. 8 on 09.07.2008 and mutation entry no. 3700 entered on 13.09.2012 on the respondent no. 8 selling the land to respondents no. 9 and 10 stood confirmed. The order of the Collector dated 23.01.2017 therefore was in favour of all these respondents. Entry no. 3700 mutated on 13.09.2012 in favour of the respondents no. 9 and 10 was never challenged by respondent no. 8.
(e) It is specifically observed by the Collector in the order dated 23.01.2017 that respondent no. 7 is not in a position to establish as to whether the land in question was subject matter of mortgage or creation of charge by respondent no. 11 in favour of respondent no. 7 - Bank while availing so called credit facility way back in the year 1991-93. Further, it is observed that there are other parcels of land owned by family members of respondent no. 11 which can be subjected to creation of charge so as to safeguard the interest of respondent no. 7 Bank. Entry no. 4604 was mutated in favour of respondent no. 7 Bank with respect to land bearing survey nos. 494 and 494 paiki 1 + 2 of village Sultanabad onwed by respondent no. 11.
Thus, the Collector has observed that the charge is already created with respect to other parcels of land owned by respondent no. 11 and in fact, the land in question was never subjected to any mortgage etc. by respondent no. 11 in favour of respondent no. 7 Bank Page 12 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT and the fact that with respect of so called credit facility of 1991-1993, the bank has approached the authority for mutation of entry of charge in the year 2012, that too after the land was purchased by respondent no. 8 in view of registered sale deed of 2007.
(f) The Special Secretary, Revenue Department by his order dated 03.05.2019 set aside the order of the Collector which was in favour of the respondents no. 8, 9 & 10 respectively ( the first purchaser and the second purchaser respectively) Respondent no. 8 has filed Special Civil Application No. 13977 of 2019 on 16.07.2019 challenging the order of the Special Secretary. The respondents no. 9 & 10 herein would be supporting respondents in such a petition because the subject matter of challenge is an order of Collector which was in their favour together.
(g) Till such time therefore when the petition is filed challenging the order of the Special Secretary dated 03.05.2019, the respondents no. 8, 9 & 10 have shown a common front and rightly so because they were the purchasers in succession. The present petitioner who purchased the land from respondents no. 9 & 10 on 11.07.2018 had his name mutated in the revenue records on 03.07.2019 by Entry No. 4712 in the interregnum.
(h) After filing of Special Civil Application No. 13977 of 2019, the respondent no. 8 filed a suit arraigning respondents no. 9 & 10 as defendants no. 1 and 2 and the present petitioner as defendant no. 3. The suit, Page 13 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT being Special Civil Suit No. 267 of 2019 was filed on 31.07.2019. The challenge is to the sale deed that he executed in favour of respondents no. 9 & 10 and who in turn executed a sale deed in favour of the petitioner. There is no injunction operating in such a suit.
(i) On 02.08.2019 the respondent no. 8 filed objections to entry no. 4712 by which the entry was certified on 03.07.2019 in favour of the petitioner.
(j) Neither the dispute that is raised in the suit filed subsequent to the petition, nor the fact that the petitioner himself (of Special Civil Application No. 13977 of 2019) has filed objections on 02.08.2019 is disclosed and on 22.08.2019 the respondent no. 8 obtains an order of this Court in his petition which reads as under:
"Notice returnable on 16.09.2019. Learned Assistant Government Pleader waives service of notice on behalf of respondent - State. Mr.Utpal Panchal, learned advocate waives service of notice on behalf of respondent No.5 - Bank.
Till then, the revenue authority shall not alter the revenue entry, which exists today, with regard to land in dispute.
Direct service is permitted."
7. From this conduct of the respondent no. 8 who is the petitioner of Special Civil Application No. 13977 of 2019, what is noteworthy is :
● The mutation entry made on 13.09.2012 in favour of respondents no. 9 and 10 in view of a sale deed executed Page 14 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT by respondent no. 8 being mutation entry no. 3700 is not questioned by him.
● What is questioned by him before this Court in Special Civil Application No. 13977 of 2019 is the order of Special Secretary dated 03.05.2019 which set aside the order of the Collector dated 23.01.2017. That order of the Collector was in favour of petitioner of Special Civil Application No. 13977 of 2019 and respondent no. 8 herein and respondents no. 9 & 10 who had filed revision.
● Therefore there was no dispute that all the respondents i.e. respondents no. 8, 9, & 10 were ad-idem on the revenue entries in their favour pursuant to the respective sale transactions.
8. After filing of the Special Civil Application, the respondent no. 8 turns around and files a suit challenging his sale of lands to respondents no. 9 & 10 and theirs in turn to the petitioner. There is no injunction. Before filing of the Special Civil Application on 16.07.2019 and the suit on 03.07.2019, the entry no. 4712 is mutated in favour of the petitioner pursuant to a sale deed of 11.07.2018 made in favour of the petitioner by respondents no. 9 & 10. On 02.08.2019 the respondent no. 8 (petitioner of Special Civil Application No. 13977 of 2019) files objections to the entry no. 4712 in favour of the petitioner. The previous entry made in favour of the predecessor in title on 13.09.2012 has not been challenged.
9. On the basis of an order of status quo order of 22.08.2019 in a petition where the respondents no. 8, 9 & 10 Page 15 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT have a common cause and therefore are together inasmuch as they are only supporting the order of the Collector dated 23.01.2017 by which the Bank's charge is deleted and which proceeding has nothing to do with the present controversy, the Mamlatdar by his impugned order dated 30.09.2019 cancelled the entry no. 4712 in favour of the petitioner which was made prior to the order of 22.08.2019, on 03.07.2019.
10. The revenue entry made in favour of the petitioner on 03.07.2019 was in pursuance of a sale deed executed by respondents no. 9 & 10 in favour of petitioner on 11.07.2018. Respondents no. 9 & 10 were owners of such lands pursuant to sale of such land by respondent no. 8 in favour of respondents no. 9 & 10 by registered sale deed of 27.06.2012 and mutation entry pursuant to such sale deed on 13.09.2012. Such entry was not challenged by respondent no. 8. The entries in the revenue records were pursuant to registered sale deeds. The decision of this Court in the case of Gandabhai Dalpatbhai Patel (supra) squarely applies on the facts of the present case. Relevant paras read as under:
"In this petition under Article 226/227 of the Constitution of India the petitioner has challenged the legality and validity of the judgment and order dated 17th January 2004/21st February 2004 passed by the Secretary (Appeals), REvenue Department, Government of GUjarat, in Revision Application No. 44 of 2003 partly allowing the same and quashing and setting aside the order passed by the Collector, Surat, dated 9th April 2003 as well as teh order passed by Deputy Collector, Choryasi Prant, Surat dated 6th July 2002 and confirming the order passed by the Mamlatdar, Choryasi Prant dated 11.6.2001 in respect to the revenue entry No. 4892 dated 15th February 2001 and further passing an order to make Page 16 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT necessary entry with regard to injunction granted by Civil Court in Regular Civil Suit No. 156 of 2001 and the entry would be subject to the ultimate outcome of the suit pending between the parties.
2. The petitioner, Gandabhai Dalpatbhai Patel was owner of land bearing Survey No. 306, Block No. 287 situated at Village Pal, Taluka Choryasi,District-Surat. The petitioner had executed one power of attorney in favour of Jagjivanbhai Madhabhai Patel on 11th March 1982. The power of attorney holder Jagjivanbhai Madhabhai Patel had executed the sale deed in favour of respondent No.5 herein on 20th April 2000 and sold the land in question to the respondent No.5 Vimalkumar Khandubhai Patel. Necessary entry was also made in the record of rights vide entry No. 4892 on 15th February 2001. The petitioner herein objected to the said entry being mutated in the name of respondent No.5 herein purchaser in the revenue record and objections were submitted before Mamlatdar, Choryasi Prant,Surat. The Mamlatdar, Choryasi Prant treated the same as RTS Disputed Case No. 10 of 2001 and after considering the objections submitted by the petitioner herein confirmed Entry No. 4892 dated 15th February 2001 and directed to certify the said entry.
2.1. Being aggrieved and dissatisfied with the order passed by the Mamlatdar, Choryasi dated 11th June 2001 passed in RTS Disputed Case No. 10 of 2001 the petitioner preferred appeal before the Deputy Collector, Choryasi Prant, Surat being RTS Appeal No. 47 of 2001 and the Deputy Collector, Choryasi Prant,Surat vide his judgment and order dated 6.7.2002 allowed the said appeal by quashing and setting aside the roder passedby the Mamlatdar, Choryasi dated 11th June 2001. Being aggrieved and dissatisfied with the judgment and order dated 6.7.2002 passed by the Deputy Collector, Choryasi Prant, Surat in RTS Appeal No. 47 of 2001, the respondent No.5 preferred appeal before the Page 17 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT Collector and the Collector, Surat vide his judgment and order dated 11th April 2003 dismissed the said revision application/appeal and confirmed the order passed by the Deputy Collector,Surat dated 6.7.2002. Being aggrieved and dissatisfied with the judgment and order passed by the Collector, Surat dated 10th April, 2003 in RTS Appeal No. 35 of 2002 in dismissing the same and confirming the order passed by the Deputy Collector, Choryasi Prant dated 6.7.2002 in cancelling Entry No. 4892 dated 15th February 2001 the respondent No.5 preferred revision application before the State Government, i.e., Secretary (Appeals), Revenue Department, was numbered as Revision Application No. 44 of 2003. The Secretary (Appeals), considering the fact that Civil Suits are pending between the parties and the dispute with regard to title cannot be decided by the REvenue authorities in RTS proceedings partly allowed the revision application by quashing and setting aside the order passed by the Collector,Surat dated 9th April 2003 as well as the judgment and order passed by the Deputy Collector,Choryasi Prant, Surat dated 6.7.2002 restoring the order passed by Mamlatdar, Choryasi dated 11.6.2001. However, considering the fact that there was an injunction granted by Civil Court in Regular Civil SUit No. 156 of 2001 the revisional authority also directed to make necessary entry with regard to injunction granted by the Civil COurt in REgular Civil Suit No. 156 of 2001 and further passed an order that the aforesaid entry would be subject to the ultimate outcome of Regular Civil Suit No. 156/2001. Being aggrieved and dissatisfied with the judgment and order dated 17th January 2004 passed by the Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No. 44 of 2003, the petitioner herein, original land-owner, has preferred the present Special Civil Application under Article 226/227 of the Constitution of India.
10. Even this Court in a recent judgment in the case of L.R.s of Popat Khima Ramani and Ors.Page 18 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT
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 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 Civiil 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 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 Page 19 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT 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.
12. For the foregoing reasons, the interference of this Court, exercising power under Article 226 and 227 of the Constitution of India is not warranted and the judgment and order passed by the learned Secretary (Appeals) dated 17th January 2004 in Revision Application No. 44 of 2003 is required to be upheld. The Special Civil Application fails and is dismissed accordingly."
It is required to be noted that there is no injunction operating the Special Civil Suit filed at the hands of respondent no. 8 where the sale deeds are challenged.
11. The subject matter of challenge in Special Civil Application No. 13977 of 2019 is common and all the parties i.e. the present petitioner and respondents no. 8, 9 & 10 have a common interest and therefore a revenue entry mutated in favour of the present petitioner on 03.07.2019 cannot be reversed on the ground of a status quo order dated Page 20 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020 C/SCA/21946/2019 CAV JUDGMENT 22.08.2019 passed in Special Civil Application No. 13977 of 2019. Even otherwise the order of 22.08.2019 reads that "the revenue authority shall not alter the revenue entry which exists today." On 22.08.2019 there was an entry no. 4712 entered on 03.07.2019 in favour of the petitioner which could not be cancelled on the objection of respondent no. 8 (petitioner of Special Civil Application No. 13977 of 2019).
12. For the aforesaid reasons, the petition is allowed. The order dated 30.09.2019 passed by the Mamlatdar, Majura, Surat city in RTS Dispute Case No. 34 of 2019 is quashed and set aside. The respondent no. 5 - Mamlatdar is directed to certify the entry no. 4712 mutated in favour of the petitioner on 03.07.2019 by virtue of the sale deed in favour of the petitioner by respondents no. 9 and 10. Such certification shall be subject to outcome of the proceedings in Special Civil Suit No. 267 of 2019. No costs.
(BIREN VAISHNAV, J) After pronouncement of the aforesaid order, Mr. Vaghela, learned advocate for respondent no. 8 requests the Court to stay the present order for a period of two weeks from today. Request is however rejected.
(BIREN VAISHNAV, J) DIVYA Page 21 of 21 Downloaded on : Sat Feb 29 01:23:08 IST 2020