Gujarat High Court
Patel Jayantibhai Karsanbhai vs State Of Gujarat & 4 on 20 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12297/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12297 of 2017
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PATEL JAYANTIBHAI KARSANBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR JV VAGHELA, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/07/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 23rd January 2017 passed by the SSRD at Ahmedabad, by which the SSRD rejected the revision application filed by the applicant herein, thereby affirming the order passed by the Collector, Sabarkantha, dated 14th May 2015 in the RTS Revision Case No.156 of 2012.
The dispute between the parties pertains to the lands bearing Block Nos.53, 79, 232, 407 and 230 situated at village Salal, Taluka Prantij, District Sabarkantha. The petitioner herein happens to be the brother of the respondent no.5. The dispute is between the brother and sister. It appears from the materials on record that the respondent no.5 is said to have orally relinquished her share in favour of the petitioner, i.e. her Page 1 of 12 HC-NIC Page 1 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER brother, so far as the land in question is concerned. This happened on 20th July 2002. On the strength of the oral relinquishment of the share, an entry bearing no.3981 came to be mutated in the record of rights. This entry no.3981 came to be questioned by the respondent no.5 before the Deputy Collector, Prantij, by filing an appeal on the ground that at no point of time she had relinquished her share in the land in favour of her brother and that the brother had played a fraud upon her. It appears that she also filed an FIR alleging that her thumb impression before the revenue authority on the date of the so-called relinquishment was forged. The Deputy Collector adjudicated the dispute, and by his order dated 13 th April 2012, cancelled the entry bearing no.3981. The petitioner herein, being dissatisfied with the order passed by the Deputy Collector, filed a revision application before the Collector, Sabarkantha. The Collector, by his order dated 14th May 2015, rejected the revision application and thereby affirmed the order passed by the Deputy Collector.
Being dissatisfied with the order passed by the Collector, the petitioner went before the SSRD. The SSRD, by his order dated 23rd January 2017, rejected the revision application and affirmed the order passed by the Collector. Against the concurrent findings of the three revenue authorities, the petitioner has come before this Court under Article 227 of the Constitution of India.
The Deputy Collector, while allowing the appeal filed by the respondent no.5, observed in her order as under :
"Upon perusal of the record of the lower court as well as the evidences lead by the applicant and the respondents, Page 2 of 12 HC-NIC Page 2 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER it appears that Block Nos.79, 230, 53, 407 and 232 of mouje Salal, Taluka Prantij, were running in the name of the father of the applicant, namely Karshanbhai Parshottambhai Patel and upon allotment of ½ share in favour of the applicant, the names of the applicant and her father were jointly continued, in which ½ land the applicant was the occupant, and after the introduction of the consolidation scheme, for Block No.202 joint names of both had continued in the said block. Thereafter upon the death of Karshanbhai Purshottambhai, through succession, names of the applicant and the respondent were entered vide mutation entry No.3116 dt. 21.10.92. Considering this, the applicant was already holding ½ share, and by succession, in remaining ½ share, became occupants of three parts. That by mutation entry No.3981 dt.20.07.2002, the name of the applicant has been deleted. For which, it is stated that the name has been wrongly deleted as applicants was not living in India. For which, criminal complaint has also been filed. At present Block Nos.230 and 407 are running in the name of Respondent No.2, whereas Block Nos. 79, 53 have been entered in the name of son of the respondent No.2 vide mutation entry No.4419. Also in Block No.232, the respondent No.2 has relinquished his share vide mutation entry No. 4248 and is entered in the name of the applicant, and upon selling this land, the name of Raval Pannaben Sumanchandra has been entered. Therefore, now dispute is in respect of Block Nos.79, 53, 407 and 230.
In which Block Nos.53 and 79 has been given by partition to son of the respondent. No evidence has been lead by the respondent against the applicant in his defence and the applicant has submitted that her portion of land has been sold. But nothing transpires on record about such sale and all the disputed lands are in the name of the respondent and his son. Therefore, considering the evidence on record and the submissions made by the applicant, the dispute about the mutation entry No.3981 is required to be accepted, and without consent of the occupant, the name cannot be deleted from the land acquired through succession as gift-deed. And in this matter FIR has also been filed. It is in interest to confirm the entry and therefore the following order is passed.
ORDER Page 3 of 12 HC-NIC Page 3 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER The Revision Application filed by the applicant is allowed. The disputed entry No.3981 in respect of Block Nos.79, 53, 407 and 230 of mouje Salal, Taluka Prantij, is hereby cancelled."
The Collector, while rejecting the revision application filed by the applicant herein, observed as under :
"Upon considering the aforesaid facts as well as the submissions made by the appellant and the respondent No.2, record of the case and the documentary evidences so produced regarding the lands bearing Block Nos.53, 79, 232, 407, 230 of mouje Salal, Taluka Prantij, the same were running in the name of Patel Revaben Karshanbhai Patel, Jayantibhai Karshanbhai but since Revaben was got married her right was relinquished in favour of her brother Jayantibhai Karshanbhai vide mutation entry No.3981, dated 20.07.2002, which was certified on 21.09.2002 by the Deputy Mamlatdar, Revenue, Prantij. Being aggrieved, the respondent No.1 had preferred appeal in the court of Deputy Collector, Himmatnagar, on 27.12.2010. Which on transfer, the Deputy Collector, Prantij, by his order No.RTS/Appeal/ Case No.218/46/2011 dated 13.04.2012 allowed the appeal, thereby canceling the mutation entry No.3981. Against which, this office, by order dt. 14.08.2012, had granted temporary injunction till final hearing of the revision. It was contended that the Police Inspector, Prantij, has requested to delete Sections 465, 467, 468, 471, 120B of the Indian Penal Code against the appellant by relying upon the opinion of the F.S.L. and handwriting expert regarding matching of the left hand thumb impression of Revaben in the statement recorded on "Upon perusal of the record of the lower court as well as the evidences lead by the applicant and the respondents, it appears that Block Nos.79, 230, 53, 407 and 232 of mouje Salal, Taluka Prantij, were running in the name of the father of the applicant, namely Karshanbhai Parshottambhai Patel and upon allotment of ½ share in favour of the applicant, the names of the applicant and her father were jointly continued, in which ½ land the applicant was the occupant, and after the introduction of the consolidation scheme, for Block No.202 joint names of both had continued in the said block. Thereafter upon Page 4 of 12 HC-NIC Page 4 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER the death of Karshanbhai Purshottambhai, through succession, names of the applicant and the respondent were entered vide mutation entry No.3116 dt. 21.10.92. Considering this, the applicant was already holding ½ share, and by succession, in remaining ½ share, became occupants of three parts. That by mutation entry No.3981 dt.20.07.2002, the name of the applicant has been deleted. For which, it is stated that the name has been wrongly deleted as applicants was not living in India. For which, criminal complaint has also been filed. At present Block Nos.230 and 407 are running in the name of Respondent No.2, whereas Block Nos. 79, 53 have been entered in the name of son of the respondent No.2 vide mutation entry No.4419. Also in Block No.232, the respondent No.2 has relinquished his share vide mutation entry No. 4248 and is entered in the name of the applicant, and upon selling this land, the name of Raval Pannaben Sumanchandra has been entered. Therefore, now dispute is in respect of Block Nos.79, 53, 407 and 230.
In which Block Nos.53 and 79 has been given by partition to son of the respondent. No evidence has been lead by the respondent against the applicant in his defence and the applicant has submitted that her portion of land has been sold. But nothing transpires on record about such sale and all the disputed lands are in the name of the respondent and his son. Therefore, considering the evidence on record and the submissions made by the applicant, the dispute about the mutation entry No.3981 is required to be accepted, and without consent of the occupant, the name cannot be deleted from the land acquired through succession as gift-deed. And in this matter FIR has also been filed. It is in interest to confirm the entry and therefore the following order is passed.
ORDER The Revision Application filed by the applicant is allowed. The disputed entry No.3981 in respect of Block Nos.79, 53, 407 and 230 of mouje Salal, Taluka Prantij, is hereby cancelled."
The Collector, while rejecting the revision application filed by the applicant herein, observed as under :
Page 5 of 12HC-NIC Page 5 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER "Upon considering the aforesaid facts as well as the submissions made by the appellant and the respondent No.2, record of the case and the documentary evidences so produced regarding the lands bearing Block Nos.53, 79, 232, 407, 230 of mouje Salal, Taluka Prantij, the same were running in the name of Patel Revaben Karshanbhai Patel, Jayantibhai Karshanbhai but since Revaben was got married her right was relinquished in favour of her brother Jayantibhai Karshanbhai vide mutation entry No.3981, dated 20.07.2002, which was certified on 21.09.2002 by the Deputy Mamlatdar, Revenue, Prantij. Being aggrieved, the respondent No.1 had preferred appeal in the court of Deputy Collector, Himmatnagar, on 27.12.2010. Which on transfer, the Deputy Collector, Prantij, by his order No.RTS/Appeal/ Case No.218/46/2011 dated 13.04.2012 allowed the appeal, thereby canceling the mutation entry No.3981. Against which, this office, by order dt. 14.08.2012, had granted temporary injunction till final hearing of the revision. It was contended that the Police Inspector, Prantij, has requested to delete Sections 465, 467, 468, 471, 120B of the Indian Penal Code against the appellant by relying upon the opinion of the F.S.L. and handwriting expert regarding matching of the left hand thumb impression of Revaben in the statement recorded on 20.07.2002 before the Talati during relinquishment of her right in mutation entry No.3981 and Section 135D notice. Therefore, the appellant has mainly contended that on 20.07.2002 Revaben was in India and she had willingly executed document to relinquished her share in the agricultural land in favour of her brother and no offence is committed in respect of mutation entry No.3981. The order of the lower authority dt.13.04.2012 is not sustainable and therefore it was prayed for setting aside the same. On other hand, the respondent No.1 has argued that the Central Government approved handwriting expert has opined that the thumb impressions of both the hands of Revaben in the statement recorded in ME No.3981 and mutation entry No.135-D does not match and on 20.07.2002 she was not in India but was in America and that forged bogus thumb impression was done and signatures on Panchnama are also bogus and she has placed reliance on her passport.
Respondent No.1 has also lodged criminal complaint Page 6 of 12 HC-NIC Page 6 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER being FIR No.22/12 before the Prantij Police Station which is now registered as Criminal Case No.784/12 with Hon'ble Judicial Magistrate (First Class) Court, at Prantij, wherein order dt.13.02.2015, it is stated that the report of the finger print expert produced by the Investigating Officer is suspicious. Moreover, upon considering the passport of the complainant there is no evidence to show that she had visited India in 2002. It is observed by the Hon'ble Court that in future finger prints of the complainant can be obtained in proceedings before the court and the opinion of handwriting expert can be called for and upon such report charges can be made in the chargesheet against the accused and has rejected the report of the Police of releasing the accused Hasmukhbhai Jivabhai Patel and has also not accepted the report dt.29.06.2012 of the Police deletion of charge. Considering the said order, it appears that the verification of the finger print has not attained finality and moreover the Special Civil Suit No.4/2011 has been filed for agricultural land and house before the Hon'ble Principal Civil Judge at Himmatnagar, which is pending and the matter is subjudice. Therefore, the parties would be governed by the outcome of said suit. Therefore, at this stage the order dt.13.04.2012 of the Deputy Collector, Prantij, refusing to cancel the mutation entry No.3981 of relinquishment of right is not required to be interfered. The following order is passed in this matter:
ORDER In the aforesaid facts, the revision application filed by applicant is hereby rejected and the disputed order No.RTS/Appeal/Case No.218/46/2011 passed by the Deputy Collector, Prantij, is maintained and the temporary injunction granted by this office vide order dt.14.08.2012 is hereby vacated.
Parties are directed to abide by the outcome of the Criminal Case No.784/12 pending before the Hon'ble Judicial Magistrate, First Class, Court at Prantij in respect of the FIR No.22/2012 registered with the Prantij Police Station and the pending Special Civil Suit No.4/2011 before Hon'ble Principal Senior Civil Judge, at Himmatnagar.
The order may be recorded in the village revenue record Page 7 of 12 HC-NIC Page 7 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER and the parties may be informed about the orders.
If you are aggrieved by the order then Revision Application can be filed within 60 days before the Secretary, Revenue Department (Appeals), Ahmedabad."
The SSRD, while rejecting the revision application filed by the applicant, observed as under :
"In the written argument on behalf of the opponent no.1, it has been submitted that the applicant of the revision application, first of all, will have to prove the fact that he is our adopted brother. Because, on behalf of the applicant, till today, no evidence has been adduced in any court with respect to his adoption. Therefore, the said revision application is required to be rejected. The Collector, Sabarkantha, and the Deputy Collector, Prantij, by their respective order have rejected the order passed by the Deputy Mamlatdar certifying the disputed mutation entry no.3981, as the same was illegal, unconstitutional and arbitrary. In connection with the disputed mutation entry no.3981 the applicant had personally remained present before the Talati-cum- Mantri and submitted that he has never initiated any proceeding relinquishing half of his share in the disputed lands in favour of the applicant and has never admitted before the Talati-cum-Mantri. At the relevant point we were not present in India. We were staying with our son residing in the United States. To show this, on behalf of the applicant, a copy of the passport is also produced. The applicant has not received any legal notice or notice under Section 135(D) with respect to the said mutation entry no.3981. The applicant was not even present in India when the disputed entry was mutated and certified. The reply of the panchas taken by the Talati-cum-Manti of Salal with respect to the disputed entry is not believable. Because, the signature of one of the panchas who signed on the reply, viz. Ranchhodbhai V.Patel, is not at all residing in Salal. If at all some Ranchhodbhai P.Patel had signed in the year 2002, he had already died in the year 1995. Till this date, no explanation worth the name is taken by the police or by the hon'ble court or the person has not remained present and for this reason also the disputed entry is required to be rejected.Page 8 of 12
HC-NIC Page 8 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER Looking to the revision application, submission of the other side and considering the evidence & documents adduced as well as the impugned order passed by the Collector, it appears that the Special Civil Suit No.4 of 2011 is filed in the court of the learned Principal Senior Civil Judge. The matter is subjudiced.
Looking to the impugned order passed by the Collector, Sabarkantha, it appears that the Collector has, after going through the revenue records and considering the earlier orders, passed an appropriate and legal order as per the rules and regulations framed by the Government, and no interference is warranted in the said order. Therefore, the following order is passed :"
Mr.Vaghela, the learned counsel appearing for the applicant has twofold submissions to canvass. His first submission is that it is always open for one co-parcener to relinquish his or her share in favour of the remaining co- parceners. This, according to Mr.Vaghela, would not amount to transfer. To put it in other words, the submission is that there can be an oral relinquishment of share by one co-parcener in favour of another co-parcener and there need not be a relinquishment deed in writing.
In support of his submission, he has placed reliance on the decision of this Court in the case of Ishverbhai Bhagubhai v. Special Secretary to Government, 1984 GLH 468.
His second submission is that the thumb impression of the respondent no.5 made before the Talati-cum-Mantri on the statement in writing at the time when she relinquished her share in favour of her brother was sent to the Forensic Science Laboratory as a part of the investigation of the FIR lodged by the respondent no.5 against the applicant.
Page 9 of 12HC-NIC Page 9 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER According to the learned counsel, the Investigating Officer has filed a report before the learned JMFC to delete the offences relating to forgery in view of the report of the handwriting expert.
In such circumstances referred to above, the learned counsel prays that there being merit in this application, the same be allowed.
On the other hand, this application has been vehemently opposed by Ms.Nisha Thakore, the learned AGP appearing for the State. Ms.Thakore points out that prima facie a case of fraud has been made out by the respondent no.5 against the applicant. The investigation carried out by the police pursuant to the FIR has resulted into charge-sheet.
Ms.Thakore submits that the Investigating Officer might have filed a report to delete the offences relating to forgery, but such report has not been accepted by the learned JMFC and it has been ordered to be kept with the original FIR.
Ms.Thakore submits that the three revenue authorities have concurrently held that the entry in question was a fraud. She points out that the respondent no.5 has also filed a Special Civil Suit No.4 of 2011 in the court of the learned Civil Judge, Himmatnagar, for declaration and injunction. It appears that the application Exh.5 was also filed by the respondent no.5 restraining the applicant herein from transferring the land pending the civil suit. Such application came to be rejected by the Civil Judge. The Civil Judge is seized of the matter so far as the civil suit is concerned.
Page 10 of 12HC-NIC Page 10 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the three revenue authorities committed any error in passing the order.
It is well-settled that so far as the mutation entries are concerned, they are only for fiscal purpose. The mutation of names in the record of rights by itself does not confer any right, title or interest. The so-called oral relinquishment at the end of the respondent no.5 in favour of her brother, i.e. the applicant, is a subject matter of challenge before the civil court. The civil court will examine the matter on its own merits, and ultimately, will give a declaration so far as the respective rights of the parties are concerned.
At this point of time, I see no good reason to disturb the concurrent findings recorded by the three revenue authorities. If the applicant has an apprehension that with the cancellation of the entry the respondent no.5 might transfer her share in the property to a third party and that might cause prejudice to the applicant, then this can be taken care of by putting a pencil entry in the record of rights that a civil suit being Special Civil Suit No.4 of 2011 is pending between the parties. If any person is inclined to purchase the share, then such person would come to know about the pendency of the suit and the proceedings.
With the above, this application is disposed of.
It is needless to clarify that the civil suit will be decided Page 11 of 12 HC-NIC Page 11 of 12 Created On Mon Aug 21 00:38:48 IST 2017 C/SCA/12297/2017 ORDER on its own merits without being influenced in any manner by any of the observations made by the revenue authorities so far as the issue of entry is concerned.
(J.B.PARDIWALA, J.) MOIN Page 12 of 12 HC-NIC Page 12 of 12 Created On Mon Aug 21 00:38:48 IST 2017