Gujarat High Court
Legal Heirs Of Salemamad Amad Kevar vs State Of Gujarat & 2 on 28 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13917/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13917 of 2016
With
CIVIL APPLICATION NO. 5940 of 2017
In SPECIAL CIVIL APPLICATION NO. 13917 of 2016
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LEGAL HEIRS OF SALEMAMAD AMAD KEVAR....Petitioner(s)
Versus
STATE OF GUJARAT & 21....Respondent(s)
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Appearance:
MR SANJIVKUMAR T PATEL, ADVOCATE for the Petitioner(s) No. 1 - 1.2
DS AFF.NOT FILED (N) for the Respondent(s) No. 22.1 - 22.3
MS NISHA THAKORE, AGP for the Respondent(s) No. 1 - 5 , 7
MR SAURABH M PATEL, ADVOCATE for the Respondent(s) No. 22
MS AMEE YAJNIK, ADVOCATE for the Respondent(s) No. 11 - 17
NOTICE SERVED for the Respondent(s) No. 10
NOTICE SERVED BY DS for the Respondent(s) No. 6
NOTICE UNSERVED for the Respondent(s) No. 18 - 21
UNSERVED-EXPIRED (N) for the Respondent(s) No. 8 , 9.1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/06/2017
ORAL ORDER
By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 16th June 2016 passed by the SSRD, by which the SSRD rejected the revision application filed by the applicants herein, thereby affirming the order passed by the Collector, Kutch, dated 23rd September 2014 in the Case No.98 of 2013.
Page 1 of 5HC-NIC Page 1 of 5 Created On Sun Aug 20 08:05:21 IST 2017 C/SCA/13917/2016 ORDER It appears from the materials on record that the dispute pertains to a land bearing Old Survey No.181 (New Survey Nos.182 and 183) situated at the sim of mouje Mandvi, Taluka Mandvi.
These parcels of land were purchased by a charitable trust in the year 1980. In connection with the purchase of the parcels of land referred to above, two entries came to be mutated in the record of rights bearing Nos.1002 and 1009. There is one another entry bearing no.492 also in dispute. This entry came to be mutated on 18th May 1966. By virtue of this entry, the persons who executed the sale-deed in favour of the trust derived the title over the property.
It appears that the two applicants herein questioned the legality and validity of the three entries bearing nos.492, 1002 and 1009 before the Deputy Collector after almost a period of 32 years. Surprisingly, although an application for condonation of delay was filed, yet there does not seems to be any order passed on such application and straightway the matter was adjudicated on merits and an order came to be passed by the Deputy Collector cancelling the entries in question.
Being dissatisfied with such order passed by the Deputy Collector, the trust went in appeal before the Collector. The trust preferred a revision application before the Collector, Kutch. The Collector, Kutch, has passed a very unusual order. In the operative part of the order, the Collector says that the revision application is hereby rejected. If that be so, then it necessarily implies that the order passed by the Deputy Collector is affirmed. But, after saying that the revision Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 20 08:05:21 IST 2017 C/SCA/13917/2016 ORDER application is rejected, the Collector proceeds further to pass an order directing the Mamlatdar, Mandvi, to once again initiate an inquiry as regards the family pedigree of the parties and directed the parties to obtain necessary relief from the civil court.
Being dissatisfied with the order passed by the Collector, the two applicants herein went before the SSRD. The SSRD rejected the revision application and that is how the two applicants are here before this Court under Article 227 of the Constitution of India. While rejecting the revision application, the SSRD observed as under :
"On examining the revision application of the applicant, impugned order of the Collector and the available record, it appears that none has raised any objection as regards the entry no.197 of Harun Kara, holding the disputed land as the Khalsa land. Asibai purchased it from Jafrani by entry no.492. The Khatedar Harun Kara has given consent but there is no signature in the document and that is the dispute. Therefore, on the death of Asibai, name of Aamad Ali has been entered by entry no.1002 as the administrator and power of attorney holder but when the Khatedar expires, the power of attorney automatically gets cancelled. The Collector has also raised question as to, whether at the relevant point of time the purchaser was agriculturist or not ? The Trust has taken the land after permission under Section 89. He also raised issue about the breach of condition, for which, separate proceedings being Case No.50 of 2014 is filed. But, the father of the present applicants were the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 20 08:05:21 IST 2017 C/SCA/13917/2016 ORDER opponent no.2 in the proceedings by the Collector against the Trust. Arguments are made before the Collector.
The main argument of the applicant is that their father has got this land by Will and being his heirs have represented mainly to enter their names in land on the basis of the Will entry. But have not produced any copy of the Will or other evidence in revision. How and when the Will prepared, no details have been furnished. Moreover, the Collector has also recorded in the impugned order that... Saleh Mamad Adam Kevar and others have contended regarding the veracity of heirship or property related dispute cannot be decided at the Collector level. Therefore, as per the arguments of the applicant, the dispute related to a Will is of a civil nature and, therefore, the relief from the Hon'ble civil court is required to be availed of. Considering the same as well as considering the impugned order of the Collector passed after hearing the parties, separate revision is filed by the Trust. The arguments of the applicant are not accepted. Therefore, the following order is passed."
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 SSRD committed any error in passing the impugned order. It is not in dispute that the two applicants herein had filed a Regular Civil Suit No.246 of 2012 in the court of the learned Civil Judge (S.D.), Kutch at Bhuj. I am told that the plaint came to be rejected under Order 7, Rule 11 of the Code of Civil Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 20 08:05:21 IST 2017 C/SCA/13917/2016 ORDER Procedure. Since the plaint came to be rejected, the two applicants have filed a Regular Civil Appeal before the District Court, which is pending as on date. The entire plaint of the two applicants herein is based on a Will, by virtue of which, their father derived the right, title and interest over the property. But, the findings recorded by the SSRD referred to above makes the picture clear. Since the applicants have already initiated proceedings before the court below, their rights will be determined by the court concerned. The dispute with regard to the mutation of entries in the record of rights will be subject to the final outcome of the appeal filed by the two applicants.
At this stage, I see no good reason to interfere with the order passed by the SSRD in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
In the result, this application fails and is hereby rejected.
In view of the order passed in the main matter, the connected Civil Application is also disposed of.
(J.B.PARDIWALA, J.) MOIN Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Aug 20 08:05:21 IST 2017