Gujarat High Court
Limbat vs Limbat on 16 December, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/8972/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8972 of 2010
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LIMBAT
BHURJI GALJIBHAI & 2 - Petitioner(s)
Versus
LIMBAT
SAKRAJI DHULAJI & 1 - Respondent(s)
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Appearance :
MR
MANISH S SHAH for
Petitioner(s) : 1 - 3.
MR VM PANCHOLI for Respondent(s) : 1,
MR
RASHESH RINDANI AGP for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 27/10/2010
ORAL
ORDER
1.0 By way of present petition, the petitioner has prayed to quash and set aside the impugned judgement and order dated 26.10.2009 passed by the Additional Secretary, Revenue Department (Appeals) Ahmedabad rejecting the Revision Application filed by the present petitioners and also prayed to quash and set aside the order dated 06.11.2008 passed by the Collector, Sabarkantha.
2.0 The facts of the case in brief are that one affidavit was filed for adding the names of the petitioners in revenue record of the land belonging to Khata No. 29, Block No./Survey No. 71 of Village:
Bhanmer, Taluka: Bhiloda, District: Sabarkantha sworn by present respondent No.1. On 22.12.2005, Entry No. 902 was mutated in the revenue record of the above survey number after considering the above mentioned affidavit and after due enquiry and recording the answers of the all concerned persons. On 23.12.2005, Notice under Section 135D of the Bombay Land Revenue Code, 1879 was personally served by Talati-Cum-Mantri, Village: Bhanmer to respondent No.1 herein. On 23.06.2006 the above entry No 902 was confirmed by the Circle Officer, Takatuka after verifying that there were no objections from any party. The respondent No.1 herein after long lapse of time and with temptation to grab whole land filed one appeal before the Deputy Collector, Himmatnagar, under Rule 108(6) of the Gujarat Land Revenue Rules, 1972 challenging the entry no. 902. On 30.08.2007, one Regular Civil Suit bearing No. 32/2007 was filed by the present respondent No.1 with Exh. 5 application therein for interim stay against the present petitioners before the Principal Civil Judge, Bhiloda praying that the petitioners herein should not disturb the plaintiff or his servants from doing farming in the land in question.
On 24.01.2008, the Principal Civil Judge, Bhiloda rejected the Exh. 5 application filed by the present respondent No.1 and has failed to establish his prima facie possession of the land in question. That order is not further carried in appeal/revision by the present respondent No.1 and the civil suit is pending. On 28.01.2008, the Deputy Collector, Himmatnagar, rejected the above mentioned R.T.S. Appeal No. 51 of 2007 filed by the present respondent No.1 challenging the mutation entry No. 902 confirmed by the Circle Officer, Takatuka. On 21.02.2008, respondent No.1 challenged the order of the Deputy Collector, Himmatnagar passed in Appeal by filing Revision Application No. 19 of 2008 before the Collector, Sabarkantha. On 25.04.2008, the present respondent No.1 filed one Criminal Case before the Judicial Magistrate First Class, Bhiloda against the present petitioners and also gave complaint to Bhiloda Police Station, District: Sabarkantha for the offences punishable under Sections 463, 464, 465, 468, 471 and 474 of the Indian Penal Code. On 06.11.2008, the Collector, Sabarkantha set aside the order passed by the Deputy Collector, Himmatnagar in Appeal No. 51 of 2007 and held that the entry No. 902 is erroneously made. Being aggrieved and dissatisfied with the order passed by the Collector, Sabarkantha in Revision Application No. 19 of 2008 dated 19.11.2008, the petitioners had filed one Revision Application before the Additional Secretary, Revenue Department (Appeal), Ahmedabad. The present petitioners were given anticipatory bail by this Court in connection with M.Case No. 10 of 2008 registered with Bhiloda Police Station, District: Sabarkantha for the offence punishable under Sections 463, 464, 465, 466, 468, 471 and 474 of the Indian Penal Code. The Additional Secretary, Revenue Department (Appeals), Ahmedabad rejected the Revision Application filed by the present petitioners and confirmed the order passed by the Collector, Sabarkatha on 06.11.2008. Hence, this petition.
3.0 As a result of hearing and perusal of the documents on record, it is found from affidavit-in-reply filed by the deponent who is son and legal heirs of Dhulabhai Fatabhai Limbhat who was the owner of the agricultural land in dispute that it was not an ancestral property of Dhulaji, but it is self-acquired property of father of the deponent. The aforesaid land became the new tenure land having restriction under Section 73AA of the Bombay Land Revenue Code. The father of the present deponent has expired in the year 1987 and, therefore, as legal heirs of Dhulaji Fatabhai Limbat, the name of the present deponent and his sister, Dituben Dhulaji Limbhat were entered into. Thus, the present deponent and his sister, Limbhat Dituben Dhulaji were the only legal heirs of Dhulaji Fataji and the said fact can be revealed from the Pedigree dated 07.02.2008 which is produced with the affidavit of the deponent. The affidavit on the stamp paper of Rs. 20/- was forged by the present petitioners, by which, it was declared in name of the deponent that the land in dispute was in the joint name of Sakaraji Dhulaj and Dituben Dhulaji but Dituben Dhulaji has expired and, therefore, said land is only in the name of Sakaraji Dhulaji( deceased respondent No.1). In the said affidavit the name of Sakaraji Dhulaji (deceased respondent No.1) has entered the name of the deponent during his life time in the record of aforesaid land. However, name of the brothers of the deponent are not entered into the revenue records and therefore, with a view to give their rights in the aforesaid names, their names are required to be entered into. The forged affidavit is submitted before the authority with forged thumb impression as if such affidavit is filed by the deponent. On the basis of the false affidavit, the concerned authority entered into the names of the petitioners in the record of the aforesaid land and name of the deponent is deleted. Therefore, criminal proceedings were initiated against the petitioners. The Collector, Sabarkantha has held that the disputed entry No. 902 dated 22.12.2005 is mutated against the provisions of law and, therefore, same is required to be cancelled. The Collector, has rightly discussed all the aspects of the matter and observed that deceased Dhulaji Fataji Kimbhat was the occupier of the land and it was his self-acquired property and the land in dispute is not an ancestral property. It is also observed by the Collector, that after the death of Dhulaji, the name of the present deponent and his sister, Dituben Dhulaji Limbhat was mutated in the revenue record by way of varsai entry. It is further observed that the disputed land is a new tenure land having restriction of Section 73AA of the Bombay Land Revenue Code. It was further rightly observed that if the transaction has taken place with regard to new tenure land between the adivasi of the same family even then, necessary sanction is required to be given after verifying about the relationship between the parties. In the present case, such type of sanction is not obtained and, therefore, there is clear violation of Section 73AA of the Bombay Land Revenue Code. It is also observed that if the land in dispute is an ancestral land then the petitioners are required to file necessary proceedings before the learned Civil Court for such type of declaration. However, they have not filed any proceedings before the Civil Court for such declaration. In view of the above, I am in complete agreement with the findings of the Collector and Special Secretary are just and proper. The petitioners can establish their right before Civil Court and this entry will subject to right established before the Civil Court. With the above observation, petition stands disposed of. Notice is discharged with no order as to costs.
(K.S.JHAVERI, J.) niru* Top