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Gujarat High Court

Rajeshriben Maheshkumar Parekh W/O ... vs State Of Gujarat on 9 May, 2018

Author: N.V.Anjaria

Bench: N.V.Anjaria

       C/SCA/6258/2018                                       CAV ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 6258 of 2018
==========================================================

RAJESHRIBEN MAHESHKUMAR PAREKH W/O DEVANGBHAI MODI Versus STATE OF GUJARAT ========================================================== Appearance:

MR ANSHIN DESAI, SR. ADVOCATE WITH MR SHAKTI S JADEJA(5491) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 2,3,4,6,7,8 MR MANAN MEHTA, AGP (99) for the RESPONDENT(s) No. 1 MR VIMAL PATEL WITH MR HITESH V PATEL(6090) for the RESPONDENT(s) No. 5 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 09/05/2018 CAV ORDER Heard learned senior advocate Mr.Anshin Desai with learned advocate Mr.Shakti Jadeja for the petitioner, learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State and its authorities, whereas learned advocate Mr.Vimal Patel with learned advocate Mr.Hitesh Patel for private respondent No.5.

2. The challenge in this petition is directed against order dated 15th December, 2017 passed by the Additional Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No.01 of 2017 preferred by the petitioner herein. Thereby the revisional authority dismissed the Revision Application and confirmed order dated 25th October, 2016 of Collector.

         C/SCA/6258/2018                                                 CAV ORDER



3.            The         dispute      dealt          with       by     the     revenue

authorities pertained to Mutation Entry No.425 which was made in the revenue records on 11th December, 1987 and came to be certified on 14th January, 1988 in connection with the land bearing Survey No.62 situated at Village Mota Mava, Taluka Rajkot. Noticing from the record of the petition the attendant facts, the said alnd stood in the name of one Maheshkumar Shantilal Parekh - the father of the petitioner as well as respondent No.7 - Himanshu Maheshkumar Parekh. It appears that upon death of said Maheshkumar on 02nd July, 1987, Mutation Entry No.424 was entered whereby name of the petitioner daughter - Rajeshriben Maheshkumar Parekh as well as name of brother/son - Himanshu Maheshkumar Parekh and wife Mrudula Parekh were entered in respect of the land in the revenue records. On the same day, second Entry No.425 was posted whereby name of the petitioner and mother - Mrudula Parekh came to be deleted. It was on the basis that the petitioner and said Mrudulaben executed and submitted a kabuliyatnama relinquishing their share from the land.

3.1 The petitioner felt aggrieved and filed Appeal No.136 of 2015 before the Deputy Collector under Rule 108(5) of the Gujarat Land Revenue Rules. By order dated 24th May, 2016, the objection of the petitioner were upheld by the Deputy Collector and Entry No.425 was annulled. Also came to be cancelled the subsequent consequential Entries. The case of the petitioner for objecting to the Entry No.425 was that Page 2 of 10 C/SCA/6258/2018 CAV ORDER she had no knowledge, that she had scant legal knowledge and that the deletion of their names was fraudulent act.

3.2 After the said Entry No.425, Himanshu Maheshkumar executed a registered Gift Deed to give away land to his nephew. Against the order of the Deputy Collector, Revision No.58 of 2016 was preferred by Darshan Kiritkumar and Baudhik Kiritkumar who were the persons in whose favour gift was executed. The Collector allowed the Revision Application by order dated 25th October, 2016 and set aside order dated 23rd August, 2016 of the Deputy Collector. Thereafter came to be filed Revision Application No.01 of 2017 by by petitioner - Rajeshriben to culminated into the impugned order of dismissal of the Revision Application.

4. On behalf of the petitioner, the impugned order of revisional authority was vehemently assailed to submit that the Mutation Entry No.425 which was made on record on the same date when Mutation Entry No.424 was made, was fraudulent change in the revenue record. It was submitted that notice under Section 135(D) was not served on the petitioner. It was submitted that at that time the petitioner was only 14 years of age and her status of not being major was unduly capitalised to wrongfully suggest that share was relinquished. It was submitted that the petitioner was claiming right in the property on the basis of heirship. It was submitted that the declaration in form of kabuliyatnama was not binding Page 3 of 10 C/SCA/6258/2018 CAV ORDER as was contrary to Section 17(1)(b) read with Section 49 of the Registration Act.

4.1 It was further submitted on behalf of the petitioner that respondent No.7 instituted Regular Civil Suit No.221 of 2010 before the Court of Principal Senior Civil Judge, Rajkot, for declaration that Gift Deed dated 30th March, 2000 was bad and void and that it was a forged and fabricated document and for further prayer to declare that respondent Nos.5 and 6 did not have any right in the land in question. It was submitted that when such was the situation that the Gift Deed was seriously questioned for its validity, objection against the Mutation Entry No.425 by the petitioner ought to have been upheld and the Entry could not have been allowed to stand in the revenue record.

4.3           Another          decision         of     the     Apex   Court     in

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        C/SCA/6258/2018                                              CAV ORDER

Krishna Pillai Rajasekhran Nair (dead) by LRs. v. Padmanabha Pillai (Dead( by LRs. [(2004) 12 SCC 754] pressed into service and Index Note E thereof was relied on to highlight the law touching on the rights of co-debtors. By pressing into service decision of the Apex Court in Rajinder Singh v. State of Jammu and Kashmir [(2008) 9 SCC 368] the principle was canvassed that Mutation Entry did not create any substantive rights in respect of title or ownership, but they stand only for fiscal purpose.

4.4 Learned senior advocate pressed into service still another judgment of the Supreme Court in case of Shen Gupta v. Devi Sarup [2009 (2) GLH 94] to canvass the proposition of law that title of the property must be determined in terms of statutory provisions. Also relied on, in support of contention, was the decision in Rangammal v. Kappuswami [(2011) 12 SCC 220]. Further decisions in H. Lakshmaiah Reddy v. L. Venkatesh Reddy [(2015) 14 SCC 784] as well as in Danamma @ Suman Surpur v. Amar being Civil Appeal Nos.188-189 of 2018 decided on 01st February, 2018 were pressed into service. Learned senior counsel wanted to convey that the delay aspect which weighed with the revenue authorities could not have a decisive factor in determining the rights of the petitioner.

4.5           On the other hand, learned advocate for the
respondents         highlighted             that      the    civil       suit     is
already      pending.           It    was      submitted       by     them      that
Mutation      Entry        was       made    before     28   years       and     the


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        C/SCA/6258/2018                                                CAV ORDER



challenge       was      too    belated             to    be    accepted.         They

submitted that on the ground of delay only, this petition may be dismissed. According to their submissions, subsequent development in the nature of registered Gift Deed took place which aspect also ought to have weighed with the authorities. It was submitted that contention and raising of dispute as regards kabuliyatnama involved disputed question of fact which could be resolved only upon leading of evidence.

5. Recapitulating the relevant factual aspects, the land in question was purchased by said Maheshkumar Parekh under the registered sale deed dated 30th November, 1984. Mutation Entry No.424 was entered in the year 1987 upon death of Maheshkumar. At that time petitioner - Rajeshri Maheshkumar was minor. The mother Mrudulaben acting as guardian of Rajeshriben submitted kabuliyatnama giving up share and right in the property, upon which Mutation Entry No.425 was recorded. The case of the petitioner was that the said kabuliyatnama was fraudulent and at that time the petitioner was minor, whereas the case of the other side is that the kabuliyatnama was executed in the valid capacity of guardian by mother which properly resulted into Mutation Entry No.425.

5.1 Thereafter by registered Gift Deed dated 30th March, 2000 executed by Himanshu Parekh - brother of the petitioner, land was given to the nephews named Darshan Kiritkumar and Baudhik Kiritkumar. At the time of this gift transaction, the petitioner had Page 6 of 10 C/SCA/6258/2018 CAV ORDER attained the age of 25 years. When said Baudhik Kiritkumar become major, name of his guardian was deleted, for which Entry No.4603 was mutated and came to be certified. At this juncture, age of the petitioner was 32 years. The petitioner raised objection with regard to the Entry No.425 and preferred appeal before the Collector which proceedings ultimately ended up with the impugned order.

5.2 An undisputed and eye-catching aspect which emerged from the facts was that the appeal of the petitioner before the Deputy Collector was after 28 years. The Mutation Entry No.425 was made on 11th December, 1987 and was certified on 14th January, 1988, while the appeal before the Deputy Collector was preferred in the year 2015. The delay of more than two-and-half decades stared at the face. This unreasonably long delay stands without any explanation much less satisfactory explanation. The Gift Deed was executed in the year 2000 by said Himanshu Maheshkumar. Reckoned from the date of gift transaction, the challenge to the Entry was after 16 years. This coupled with the fact that the document of gift was a registered deed of gift.

5.3 A pointed contention came-forth from the side of the respondent which could be countenanced, that though the petitioner - Rajeshrien had become major and that she had attained majority at the time of execution of the Gift Deed, the Gift Deed was not challenged. At that juncture, petitioner had reached Page 7 of 10 C/SCA/6258/2018 CAV ORDER 25 years. It was submitted that the requirement of law was that the minor - petitioner was required to challenge the transaction within three years from the date of attainment of majority.

5.4 The contentions on part of the petitioner about the aspect that kabuliyatnama executed by them were fraudulent and were not binding to them, is not one to be gone into the revenue jurisdiction. The civil suit is already pending where all these questions and incidental questions will be tried on evidence. These aspects touch the civil rights of the parties which would have to be determined in the civil proceedings only being the Civil Suit No.221 of 2010 which is pending.

5.5 It is to be observed at this stage that it may be true that delay part will have a different contours and the merit-content in the suit proceedings. It is the law of limitation under the Limitation Act, 1963 and the principle governing the law shall apply to consider whether the suit is delayed or not. The findings of the revenue authorities that there was 28 years delay in raising objection could not have by itself be a de-merit aspect in the suit which will be considered on its own merits and in accordance with the provisions of limitation coupled with the applicability of Hindu Minority and Guardianship Act.

5.6 This area is not the domain of the present proceedings which arises from the orders of the revenue authorities. Suffice it is to say that the Page 8 of 10 C/SCA/6258/2018 CAV ORDER delay aspect in the suit will be independently judged in accordance with law and the findings of delay by the revisional authority shall stand confined to revenue jurisdiction only.

5.7 It is also clarified that Mutation Entry No.425 and the consequential Entries shall abide by the outcome of the Civil Suit No.221 of 2010. It is further clarified that the delay aspect would be weighed for its merits in terms of the provisions of the Limitation Act as far as the suit proceedings is concerned.

6. Except above clarification, the challenge in this petition to the order of the revisional authority is thoroughly meritless. The challenge is not required to be considered at least on three decisive grounds. First is that the objection to the Mutation Entry No.425 was raised after 28 years by the petitioner. Even after attaining majority, petitioner remained indolent and did not chose to question the Mutation Entry. Such a long delay of 28 years could not be countenanced in law. It would bar the action because of indolence, acquiescence and estople. It was eminently just and proper grounds for the revenue authorities so as not to accept the objection of the petitioner in respect of the revenue entry. The second aspect is that subsequent to Entry No.425, Gift Deed was executed in the year 2000 which was a registered Gift Deed. On the basis of this gift transaction, further Mutation Entry was recorded. The third facet is that the Gift Deed is already under Page 9 of 10 C/SCA/6258/2018 CAV ORDER challenge in the civil proceedings as Regular Civil Suit No.221 of 2010 as already been instituted and has been pending between the parties. The Mutation Entry would follow the final outcome of the civil suit.

6.1 Thus, challenge to the impugned order is devoid of merits. The orders passed by the revenue authorities and the revisional authority on the grounds stated by them are eminently just, legal and proper and did not book any error of whatsoever nature.

7. For the aforesaid discussion and reasons, challenge fails. The impugned order is upheld. The petition is dismissed.

(N.V.ANJARIA, J) Anup Page 10 of 10