Gujarat High Court
Manjulaben Jamnadas vs State Of Gujarat & on 9 April, 2013
Author: Harsha Devani
Bench: Harsha Devani
MANJULABEN JAMNADAS MASTERTHROPOA JANAKBHAI ARVINDBHAIV/SSTATE OF GUJARAT C/SCA/1020/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.1020 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE HARSHA DEVANI ============================================= 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, 1950 or any order made thereunder? 5 Whether it is to be circulated to the civil judge? ============================================= MANJULABEN JAMNADAS MASTER THRO POA JANAKBHAI ARVINDBHAI & 13....Petitioner(s) Versus STATE OF GUJARAT & 13....Respondent(s) ============================================= Appearance: MR JM PATEL with MR AB MUNSHI, ADVOCATE for the Petitioner(s) No.1 - 14.6.3 MS NISHA THAKORE, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No.1, 2 MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No.3 MR MANAV A MEHTA, ADVOCATE for the Respondent(s) No.9 MR MRUGESH A BAROT, ADVOCATE for the Respondent(s) No.3 RULE SERVED for the Respondent(s) No.2 , 4 , 5.1 - 5.3 , 6 - 9 , 10.1 - 10.3 , 11 - 12 ============================================= CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI Date : 09/04/2013 ORAL JUDGMENT
1. Rule.
Ms. Nisha Thakore, learned Assistant Government Pleader waives service of rule on behalf of respondents No.1 and 2. Mr. Dhaval Vyas, learned advocate waives service of rule on behalf of respondent No.3. Mr. Manav Mehta, learned advocate waives service of rule on behalf of respondent No.9. The rest of the respondents, though served, have not chosen to enter appearance. This court has heard the learned advocates for the respective parties at length and hence, with the consent of the learned advocates for the respective parties, the matter was taken up for final hearing and is accordingly disposed of finally.
2. By this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 9th January, 2012 passed by the Additional Secretary, Revenue Department (hereinafter referred to as the revisional authority ) in Revision Application No.MVV/HKP/Bharuch/22/11 (Annexure I to the petition) whereby the revision application filed by the respondents No.3 to 10 has been allowed and the order dated 27th November, 2010 passed by the Collector Bharuch in HKP/Appeal No.66 of 2010 has been set aside .
3. The facts of the case stated briefly are that the following lands (hereinafter referred to as the subject lands ) :
Old Survey No. New No. Area Hectare-
Are-sq. Mtrs.
Price 193 99 04-24-00 5-70 74 790 59-13-00 116-75 885 801 07-69-00 01-30 941 825 01-42-00 02-65 967 837 01-94-00 03-60 965 839 03-44-00 06-40 957 849 01-83-00 03-40 1065 848 00-10-00 00-20 Total Area 72-79-00 140-00 were originally purchased by (i) Naginbhai Zinabhai (ii) Lallubhai @ Balubhai Hargovandas and (iii) Bhukhandas Chhabildas by virtue of a sale deed dated 21st February, 1946. Pursuant thereto, the names of the said persons came to be introduced in the record of rights. It appears that Naginbhai Zinabhai expired on 16th August, 1969, Lallubhai @ Balubhai Hargovanbhai expired on 21st April, 1981. Bhukhandas Chhabildas had expired prior thereto and the names of his heirs Jamnadas Bhukhandas and Nanalal Bhukhandas had been introduced in the revenue record. Jamnadas Bhukhandas expired on 27th November, 1983 and Nanalal Bhukhandas expired on 17th April, 1997. It appears that despite the fact that all the aforesaid persons had expired at different points of time, no steps had been taken by their heirs to get necessary mutation entries made in the record of rights. Subsequently, in the year 2003, one Kalpanaben, claiming to be the daughter-in-law of Jamnadas Bhukhandas Master, made an application for getting her name as well as the name of her son Samir Kishorchandra (respondent No.11) and daughter Vaishali Kishorchandra (respondent No.12) introduced in the record of rights. Pursuant to such application being made, Mutation Entry No.4948 came to be made in the Village Form No.6 on 26th August, 2003 on the basis of an affidavit made by Kalpanaben alongwith a pedigree and some other supporting documents. Since no objections were received against the said entry, the same came to be certified. Soon after the names of Kalpanaben and her children came to be entered in the revenue record by the above referred mutation entry, Kalpanaben alongwith respondents No.11 and 12 executed three registered sale deeds dated 10th September, 2003 in favour of the respondents No.3 to 10. It appears that thereafter in view of the aforesaid mutation entry and subsequent sale of the subject lands, some alert villagers, alongwith the local MLA approached the Collector and invited his attention to the said mutation entry stating that there was something suspicious about the manner in which the mutation entry had been made. Pursuant thereto, the Collector took the mutation entry in suo motu revision and by an order dated 6th October, 2004 cancelled the said mutation entry and directed the respondents No.11 and 12 and their mother Kalpanaben to obtain the succession certificates from the civil court and thereafter to get their names mutated. The order passed by the Collector came to be challenged by the respondents No.11 and 12 as well as Kalpanaben through their power of attorney by filing Revision Application No.MVV/HKP/BHC/22/2004. It is the case of the petitioners that in the said application, Kalpanaben and others had not joined all the remaining heirs and legal representatives of the above referred three deceased persons namely, the present petitioners and others and had joined only the Collector, Bharuch as respondent. By an order dated 20th April, 2005, the Joint Secretary, Revenue Department (Appeals) partly allowed the revision application and set aside the order dated 6th October, 2004 passed by the Collector and remanded the matter to the Mamlatdar with a direction to prepare the pedigree of the heirs of Bhukhandas Chhabildas, Naginbhai Zinabhai and Lallubhai Hargovandas and to make necessary panchkyas and decide as to who are the heirs and make mutation entries accordingly.
3.1 Pursuant to the order of remand, the Mamlatdar by an order dated 30th April, 2007 held that there was no necessity of making any changes in the earlier Mutation Entry No.4948 dated 26th August, 2003 and accordingly confirmed the said order. Against the order of the Mamlatdar, the petitioners preferred an appeal before the Deputy Collector being RTS Appeal No.11/2010. By an order dated 26th February, 2010, the appeal came to be dismissed mainly on the ground of limitation. Being aggrieved, the petitioners preferred an appeal before the Collector, Bharuch under rule 108(6) of the Gujarat Land Revenue Rules. By an order dated 23rd November, 2010, the Collector partly allowed the appeal by setting aside the order dated 26th February, 2010 passed by the Deputy Collector as well as Mutation Entry No.4948 and remanding the matter to the Mamlatdar to hear the direct heirs of all the deceased persons and take a fresh decision thereon. The respondents No.3 to 10 went in revision against the aforesaid order of the Collector before the revisional authority, who, by the impugned order dated 9th January, 2012 allowed the revision application and set aside the order passed by the Collector, Bharuch thereby confirming Mutation Entry No.4948, which has given rise to the present petition.
4. Mr. J.M. Patel, learned advocate appearing on behalf of the petitioners submitted that Mutation Entry No.4948 was a nullity in the eyes of law since the same was made on the basis of a forged death certificate. He further submitted that the subject lands were originally held by three persons. Kalpanaben and the respondents No.11 and 12 had moved an application for making mutation entry for introducing their names in the revenue record in respect of the subject lands without disclosing the fact that the three persons who had originally purchased the subject land had several other heirs, and immediately after such mutation entry came to be made, Kalpanaben transferred the subject lands in favour of the respondents No.3 to
10. According to the learned counsel, Kalpanaben and the respondents No.11 and 12 were not the sole owners of the whole of the subject lands and therefore, the respondents No.3 to 10 do not get any valid title over the subject lands and that their claim to the subject lands, if any, would be limited to the share of Kalpanaben and her children as the seller cannot pass a better title than what he possessed.
4.1 Mr. Patel further submitted that the respondents No.3 to 10 were not parties in Appeal No.66/2010 preferred by the petitioners before the Collector and they had no locus standi to prefer a revision application before the respondent No.1. It was also submitted that the Mutation Entry No.4948 being fraudulent, the revisional authority was not justified in upholding the same. Drawing attention to the impugned order passed by the revisional authority, it was pointed out that the revisional authority has observed that the respondents No.3 to 10 are bonafide purchasers. It was submitted that by no stretch of imagination can the respondents No.3 to 10 be termed as bonafide purchasers, inasmuch as, within a very short period from the date of the mutation entry, they have purchased the subject lands without getting any title clearance certificate or making any other inquiry. It was contended that while making Mutation Entry No.4948, no notice under section 135D of the Bombay Land Revenue Code (hereinafter referred to as the Code ) had been served upon the petitioners and the other heirs, under the circumstances, the said mutation entry having been made without due compliance of the provisions of the Code and the rules framed thereunder stands vitiated on this count also. It was pointed out that respondent No.9 Subhashbhai Natvarbhai Patel had signed as a witness in all the forged documents as well as the pedhinama which was produced by Kalpanaben and respondents No.11 and 12 for the purpose of getting their names entered in the revenue record and as such, it is evident that the respondents No.3 to 10 were not bonafide purchasers as they were very well aware that the mutation entry had been made on the basis of a forged pedhinama and were aware of the fact that Kalpanaben and others were not the sole owners of the subject lands. It was submitted that the petitioners and the others being the heirs and legal representatives of the three original owners, are entitled to have their names being entered in the revenue record. The Mamlatdar was, therefore, not justified in sustaining the earlier mutation entry and that the revisional authority was not justified in confirming the order passed by the Mamlatdar and the Deputy Collector. It was urged that the mutation entry being based upon a fraud, the revisional authority ought to have quashed and set aside the same; that the order passed by the Collector remanding the matter to the Mamlatdar to hear all the direct heirs of the deceased and make mutation entry accordingly was just, legal and proper and there was no warrant for interference by the revisional authority. It was, accordingly, urged that the petition deserves to be allowed.
5. Opposing the petition, Mr. Dhaval Vyas, learned advocate for the respondent No.3 - purchaser submitted that the respondent No.3 was a bonafide purchaser who had purchased the subject lands on the basis of the Mutation Entry No.4948 which had been duly certified by the revenue authorities and that the revisional authority was justified in giving due weightage to the same. The attention of the court was drawn to the pedigree annexed at Annexure R-1 to the affidavit-in-rejoinder filed by the petitioners as well as the appeal preferred before the Collector, Bharuch by the petitioners to point out that the petitioners had stated therein that Nanalal Bhukhandas and Lallubhai Hargovandas did not have any direct descendants. It was submitted that thus, the petitioners are also not averse to making false averments. The attention of the court was drawn to Mutation Entry No.5173 dated 25th February, 2008 whereby the names of the petitioners were entered in the record of rights, but pursuant to objections raised by the respondents the same had been cancelled to submit that the Mamlatdar had found the application to be suspicious in nature and had accordingly rejected the said mutation entry. It was pointed out that the petitioners had preferred the appeal before the Deputy Collector against Mutation Entry No.4948 after a considerable delay and as such, the Deputy Collector was justified in dismissing the appeal. It was urged that the Secretary, Revenue Department had duly considered the submissions advanced on behalf of the petitioners and had given cogent and convincing reasons while upholding the Mutation Entry No.4948 and as such there is no warrant for intervention by this court.
6. Mr. Manav Mehta, learned advocate for the respondent No.9 vehemently opposed the petition by submitting that the petitioners had independently sought to get their names introduced in the revenue record vide Mutation Entry No.5173 on 25th February, 2008 and that after considering the objections filed against the same, the Mamlatdar had rejected the said mutation entry. The said order passed by the Mamlatdar has not been challenged by the petitioners and as such, has become final. Under the circumstances, in the absence of any challenge to the said order, the petitioners are not entitled to contend that their names should be brought on record alongwith Kalpanaben and the respondents No.11 and 12 by virtue of Mutation Entry No.4948. It was submitted that once it was held that the petitioners are not entitled to have their names introduced vide Mutation Entry No.5173, till the said order stands, the petitioners are not entitled to get their names introduced by challenging Mutation Entry No.4948. It was urged that the respondent No.9 being a bonafide purchaser of the subject lands who had purchased the subject lands based on the mutation entry which was certified by the revenue authorities, the order passed by the Secretary, Revenue Department does not warrant interference and that the petition being devoid of merit, deserves to be dismissed.
7. Ms. Nisha Thakore, learned Assistant Government Pleader supported the impugned order passed by the Secretary, Revenue Department.
8. The facts as emerging from the record reveal that initially, the subject lands were purchased by three persons namely, Nagindas Zinabhai, Lallubhai @ Balubhai Hargovandas and Bhukhandas Chhabildas. Upon the death of Bhukhandas Chhabildas, the names of his heirs Jamnadas Bhukhandas and Nanalal Bhukhandas were entered in the revenue record. The petitioners claim that the subject lands belong to their maternal grandfather Nagindas Zinabhai and Lallubhai Hargovandas. However, at the relevant time upon the death of each of the original owners, no steps had been taken by their heirs and legal representatives for getting their names entered in the revenue record. Subsequently, in the year 2003, Kalpanaben and the respondents No.11 and 12 made an application pursuant to which Mutation Entry No.4948 came to be made on 26th August, 2003 whereby it was observed that Naginbhai Zinabhai, Balubhai Hargovinddas and Jamnadas Bhukhandas whose names were running in revenue record had expired on different dates. Nagindas Zinabhai s daughter Dhangauriben had expired on 5th November, 1990 and his son-in-law Jamnadas had expired on 27th November, 1983. Their son Kishorchandra Jamnadas had expired on 29th May, 1999 and he was succeeded by his wife Kalpanaben, son Samirbhai and daughter Vaishaliben. The subject lands also stand in the name of other persons out of whom Balubhai Hargovinddas has expired and his wife Paliben has also expired on 15th May, 1970. They had no children and therefore, no direct descendants. Nanalal Bhukhandas had expired on 22nd June, 1978 and his wife Tapiben had expired on 5th November, 1990. Both of them did not have any children and did not have any direct descendants. Thus, Kalpanaben Kishorchandra, Samirkumar Kishorchandra and Vaishaliben Kishorchandra who were alive had submitted an affidavit, and a panchkyas was also carried out recording their statements. Hence, on the basis of succession, the names of Kalpanaben Kishorchandra, Samirkumar Kishorchandra and Vaishaliben Kishorchandra were entered in the record of rights on the basis of affidavits, panchkyas of their statements and pedigree. The said entry came to be certified by recording that notice has been served and that the entries have been made on the basis of statements, pedhinama (pedigree) and that no objections have been received. Subsequently, pursuant to representations made by village people and the local MLA, the Collector, Bharuch took the mutation entry in revision and by an order dated 6th October, 2004 set aside the mutation entry and directed the heirs to obtain a succession certificate from the concerned court. Kalpanaben challenged the aforesaid order passed by the Collector before the revisional authority who remanded the matter to the Mamlatdar for ascertaining as to who were the heirs and make necessary entry. Pursuant to the order of remand, the Mamlatdar, by an order dated 30th April, 2007, upheld the earlier entry.
9. A perusal of the order dated 30th April, 2007 made by the Mamlatdar reveals that he has merely reproduced the pedhinama as reproduced in the order dated 6th October, 2004 of the Collector and on the basis thereof, has held that there was no necessity of making any change in the earlier entry. The Mamlatdar without trying to ascertain as to whether there were any other heirs, has merely observed that at the time when Entry No.4948 was made on 26th August, 2003, no objections had been received. Thus, the Mamlatdar appears to have made a short shrift of the case, without duly complying with the directions issued by the revisional authority while remanding the matter. It appears that in the meanwhile, the petitioners had made an application for getting their names entered in the revenue record as heirs of the deceased persons pursuant to which Mutation Entry No.5173 dated 25th February, 2008 came to be made. Subsequently, objections were received against their names being entered and by an order dated 1st November, 2008, the Mamlatdar, Hansot allowed the objections against the application made by the petitioners and rejected the mutation entry. A perusal of the said order reveals that the main ground for cancelling Mutation Entry No.5173 was that by an order dated 30th April, 2007, the Mamlatdar, Hansot had held that there was no necessity of interfering with the Mutation Entry No.4948 dated 26th August, 2003. It was held that if the petitioners were aggrieved by the order dated 30th April, 2007 passed by the Mamlatdar, they should challenge the same before the concerned court and obtain necessary orders in that regard, instead, a new entry by virtue of Mutation Entry No.5173 has been made on 25th February, 2008. It was observed that Nagindas Zinabhai expired in the year 1969 and after thirty-nine years, his heirs had got Mutation Entry No.5173 made on 25th February, 2008. On a bare reading of the said order, it is abundantly clear that what had prevailed with the Mamlatdar was that the petitioners had not obtained any relief from a court of competent jurisdiction pursuant to the order dated 30th April, 2007 made by the Mamlatdar. It is in these circumstances that the Mutation Entry No.5173 came to be rejected. Subsequently, the petitioners preferred an appeal before the Deputy Collector challenging Mutation Entry No.4948 which came to be dismissed on the ground of delay of two years and seven months. The petitioners challenged the said order before the Collector, who by the order dated 23rd November, 2010 partly allowed the appeal by setting aside the order of the Deputy Collector as well as Mutation Entry No.4948 and directed the Mamlatdar to decide the same afresh after hearing all the parties. It is at this stage that the respondents No.3 to 10 went in revision before the Additional Secretary, Revenue Department, who, by the impugned order allowed the revision application and set aside the order of the Collector, thereby upholding Mutation Entry No.4948.
10. A perusal of the impugned order reveals that the revisional authority has held that the subject lands bearing Khata No.144 of Mauje Balota, taluka Hansot were running in the names of (1) Nagindas Zinabhai, (2) Babubhai Hargovindbhai. (3) Jamnadas Bhukhanbhai and (4) Nanalal Bhukhanbhai, all of whom expired on different dates and in this regard, succession entry No.4948 has been made whereby the names of (1) Kalpanaben Kishorchandra, (2) Samirkumar Kishorchandra and (3) Vaishaliben Kishorchandra have been entered and the three heirs have sold the disputed land to the revisionists vide registered sale deeds. In the meanwhile, there being a dispute in respect of the mutation entry, the Collector took the same in suo motu revision and set aside the same. Against the order of the Collector, revision came to be preferred before the Secretary (Appeals) who by an order dated 20th April, 2005 set aside the order of the Collector and remanded the matter to the Mamlatdar. That the Mamlatdar, in remand, has found that there was no necessity of interfering with the earlier Mutation Entry No.4948 dated 26th August, 2003. The revisional authority upon a perusal of the record has found that Mutation Entry No.4948 had been made for succession. That there was continuous litigation in respect of such mutation entry and lastly, the Collector has set the same aside. It was observed that in the revision as well as the proceedings before the lower authorities, it does not appear as if any of the parties have approached the civil court for obtaining the succession certificate. According to the revisional authority, even while the revision was pending, those heirs whose names were left out while making Mutation Entry No.4948 could have approached the civil court if they had any right in the subject lands, despite which pending the proceedings no such relief appears to have been claimed. If they were really the heirs and a fraud had been committed in the present case, they should have gone to the civil court to obtain the necessary relief. The revisional authority was accordingly of the view that in the present case there is no scope of any discussion in this regard. The revisional authority has further observed that the applicants (respondents No.3 to 10) have purchased the disputed lands vide registered sale deeds and when they purchased the lands, they had ascertained from Mutation Entry No.4948 that the names of the sellers were reflected. Thus, they are legal and bonafide purchasers of the disputed lands and their rights are also required to be taken into consideration. It is further observed that during the pendency of the litigation, Janakbhai Master had got his name introduced by virtue of succession vide Mutation Entry No.5173 against which Subhashkumar Natwarlal Patel and the power of attorney of deceased Uttambhai Trikambhai Lad and others had raised a dispute, pursuant to which the Mamlatdar, Hansot had by an order dated 1st November, 2008 cancelled the said entry. No revision appears to have been filed against the said order and hence, the said entry has become final. Shri Mukeshbhai Jayantibhai Naykawala has filed a civil suit in the Court of the learned Judicial Magistrate First Class, Hansot and all the parties shall be required to implement the decision that may be given by the court. The revisional authority has further observed that having regard to the facts of the case, insofar as the revenue courts are concerned, in connection with the Mutation Entry No.4948, the matter came to be remanded to the Mamlatdar by an order dated 20th April, 2005. At the relevant time also, the order passed by the then Collector has been set aside and pursuant to the remand, the Mamlatdar had by an order dated 30th April, 2007 once again taken a decision and has maintained Mutation Entry No.4948 which can be considered to be CONCLUSIVE PROOF . In the present case itself, the Prant Officer by his order dated 26th February, 2010 has held that the order of the Mamlatdar appears to be legal and in accordance with the rules and hence, it is not permissible to interfere with the same, which can be considered to be again CONCURRENT PROOF . In these circumstances, when pursuant to the order passed by the revisional authority, the Mamlatdar had passed an order, such order ought to be considered as the final order, however, that did not happen and, therefore, unnecessarily the litigation has continued. In fact, the present applicants (respondents No.3 to 10) are bonafide purchasers who have placed reliance upon Entry No.4948 and upon determination of the questions that have arisen thereafter, the decision taken by the Mamlatdar, Hansot, appears to be just and proper. The revisional authority has further held that the matters regarding fraud in the matter of succession entries are civil in nature, hence, it does not appear to be proper to give any decision in that regard and as such, in this regard, necessary relief shall have to be obtained from the civil court and all parties shall be required to implement the decision of the civil court. After recording the aforesaid reasons, the revision application has been allowed and the order of the Collector has been quashed and set aside.
11. As noted hereinabove, pursuant to remand, the Mamlatdar has merely placed reliance upon the pedigree as reproduced in the earlier order of the Collector and held that the names of Kalpanaben and the respondents No.11 and 12 as reflected in Mutation Entry No.4948 are correct. A perusal of the pedigree which is reproduced in the order passed by the Mamlatdar reveals that Nanalal Bhukhandas has expired on 22nd June, 1978. He is succeeded by Jamnadas Bhukhandas, his brother and Tapiben, his wife. Kishorchandra is shown to be the son and Kalpanaben, his wife, Samirkumar, their son and Vaishaliben, their daughter. Balubhai Hargovandas is shown to have expired on 11th February, 1971. Thereafter, again Jamnadas is shown to be the heir and Kishorchandra, his son and Kalpanaben, Vaishali and Samir to be their heirs. Similarly in case of Naginbhai Zinabhai, Dhangauriben is shown to be the daughter, Jamnadas as husband and Kishorchandra as his son, Kalpanaben as wife of Kishorchandra, Samir son and Vaishali daughter of Kishorchandra Jamnadas. However, from the said pedigree, it is not clear as to what is the exact nature of the relationship between the parties. Despite the aforesaid, on the basis of such a vague pedhinama/pedigree, the Mamlatdar has confirmed Mutation Entry No.4948 without making any inquiry as directed in terms of the earlier order passed by the revisional authority. A perusal of the order passed by the Deputy Collector reveals that the appeal preferred by the petitioners has been dismissed mainly on the ground of delay. From the impugned order of the revisional authority, it is apparent that he has merely held that once the order of remand was passed by the Secretary, the Collector ought not to have interfered with the order passed by the Mamlatdar pursuant to such remand. Despite the fact that the Mamlatdar has made the order dated 30th April, 2007 without making any proper inquiry as directed in the earlier order of remand, the revisional authority has held the said order to be conclusive proof. One fails to understand as to how an order of Mamlatdar can be conclusive proof of any matter. Moreover, according to the revisional authority the order passed by the Deputy Collector dismissing the appeal on the ground of delay has been considered to be concurrent proof. In the opinion of this court, only evidence which has been led by the parties can be conclusive proof and concurrent proof of any matter. An order passed by the Mamlatdar or a Deputy Collector while exercising quasi-judicial powers and deciding a dispute can by no stretch of imagination, form conclusive proof or concurrent proof in respect of the matter which was subject matter of adjudication before them. Thus, it is more than abundantly clear that the order passed by the revisional authority suffers from the vice of non-application of mind.
12. From the facts noted hereinabove, it is apparent that when Kalpanaben made the application for getting her name as well as the names of respondents No.11 and 12 entered in the revenue record, such application was supported only by an affidavit and a pedigree produced by her. It is also not in dispute that such application was made after a delay of about thirty three years. Despite the fact that after thirty three years, some persons had come forward with an application for being brought on record as the heirs and legal representatives of the four deceased persons, the Mamlatdar without making any due inquiry, merely on the basis of an affidavit and pedigree and statements of three interested persons, had made Mutation Entry No.4948. While making such mutation entry, the Mamlatdar has not even examined the relationship between Kalpanaben and respondents No.11 and 12 to ascertain as to whether they were actually the heirs and legal representatives of all the deceased persons. In the opinion of this court, when the application has been made after such a considerable delay and considering the fact that Kalpanaben and respondents No.11 and 12 claimed to be the sole heirs of all four deceased persons, it was incumbent upon them to establish their relationship with each of them. Merely because three of the persons had died without any heirs and Kalpanaben was a direct descendant of one of the deceased persons, would not ipso facto make Kalpanaben and respondents No.11 and 12 the heirs of the other three deceased persons without firstly establishing their relationship with the other three persons. It cannot be gainsaid that if a person dies without heirs, unless some relationship with that person is established, the property would not devolve upon any other person merely because three persons had purchased the lands together. Thus, it is apparent that the Mamlatdar has failed to make necessary inquiry at the relevant time. In fact, having regard to the facts and circumstances of the case, the order passed by the Collector in the earlier round directing the parties to obtain succession certificate for the purpose of introducing their names in the record of rights was quite justified. However, the said order had been quashed and set aside by the revisional authority and the matter was remanded to the Mamlatdar for making proper inquiry and issuing notices to all the heirs. At this stage also, the Mamlatdar did not make any efforts to ascertain as to who were the heirs and issue notices to them. The Mamlatdar merely on the basis of the earlier order of the Collector, wherein the pedigree as produced by Kalpanaben was reproduced, reaffirmed the earlier mutation entry. Thus, evidently, the Mamlatdar had failed to abide by the directions issued by the revisional authority while remanding the matter for giving notices to all the heirs of the deceased persons and thereafter making necessary entries.
13. The contention raised on behalf of the respondents No.3 to 10 that they were bonafide purchasers, which contention has been accepted by the revisional authority, is also misconceived. The facts on record are glaring. After a period of thirty three years, Kalpanaben made an application for getting her name and the names of respondents No.11 and 12 entered in the record of rights. Pursuant thereto, Mutation Entry No.4948 was made and within a month thereof, the respondents No.3 to 10 purchased the entire subject lands. Evidently, therefore, the respondents No.3 to 10 did not make any proper inquiry as regards the title of the subject lands. It has been contended on behalf of the petitioners that no title clearance was obtained by the respondents No.3 to 10, which fact has not been denied by them. From the facts as emerging from the record, having regard to the short span of time between the mutation entry and the date of purchase by the respondents No.3 to 10, evidently no such title clearance certificate could have been obtained by them. Besides, as rightly pointed out by the learned counsel for the petitioners, the respondent No.9-Subhashkumar Natwarlal Patel has acted as a witness in respect of the pedhinama and other documents submitted by Kalpanaben for the purpose of making the mutation entry and was very well aware of the fact that the mutation entry had been made solely on the basis of an affidavit. Thus, the contention that the respondents No.3 to 10 are bonafide purchasers of the subject lands deserves to be stated only to be rejected. In any case, as rightly contended by the learned advocate for the petitioners, the respondents No.3 to 10 would only get a title to the extent Kalpanaben and the respondents No.11 and 12 had a title in the subject lands. Merely because by virtue of Mutation Entry No.4948, only the names of Kalpanaben and respondents No.11 and 12 alone were reflected in the record of rights would not ipso facto make them the sole owners of the subject lands.
14. In the light of the aforesaid discussion, this court is of the view that the impugned order passed by the revisional authority suffers from various infirmities and as such, cannot be sustained. The petition, therefore, succeeds and is accordingly allowed. The impugned order dated 9th January, 2012 passed by the respondent No.1 in Revision Application No.MVV/HKP/Bharuch/22/11 is hereby quashed and set aside consequently, the order dated 23rd November, 2010 passed by the Collector, Bharuch stands confirmed. Accordingly, the matter is remanded to the Mamlatdar to make a fresh inquiry after issuing notice to all the heirs of the deceased persons as reflected in the cause title of the present petition as well as any other heirs who are brought to the notice of the Mamlatdar. The Mamlatdar shall also examine the veracity of the claim of each of the persons regarding their being heirs of the deceased persons and thereafter make necessary mutation entry after affording reasonable opportunity of hearing to all the parties. Rule is made absolute to the aforesaid extent.
15. It is clarified that any observations made in this judgment including the observations dealing with the contention of the respondents No.3 to 10 that they are bonafide purchasers, are only prima facie observations made for the purpose of deciding the controversy in issue before this court and the same shall have no bearing on any other civil proceedings which may be instituted by any of the parties. The civil court or any other forum before which proceedings are initiated shall adjudicate the same without in any manner being influenced by any of the observations made in this judgment.
( Harsha Devani, J. ) hki Page 21 of 21