Gujarat High Court
Bebiben Alias Babiben Jagubhai D/O ... vs State Of Gujarat on 15 March, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5730 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BEBIBEN ALIAS BABIBEN JAGUBHAI D/O GANDABHAI RANCHHODBHAI
PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR SALIL M THAKORE(5821) for the Petitioner(s) No. 1
MS URMILA DESAI, AGP for the Respondent(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 10,10.4
MR AMAR D MITHANI(484) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No.
10.1,10.2,10.3,10.4.1,10.4.2,10.4.3,10.5,2,4,5,6,7,8,9
NOTICE UNSERVED for the Respondent(s) No. 11
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 15/03/2022
CAV JUDGMENT
1. Being aggrieved and dissatisfied with the order passed by the Secretary of State Revenue Department in Revision Page 1 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 Application No. 104 of 2019 (MVV/HKP/ST/104/2019) dated 11.02.2020, the petitioner has filed this petition under Articles 226 and 227 of the Constitution for the following reliefs:-
"(A) That the Hon'ble Court be pleased to issue a writ of or in the nature of certiorari or any other appropriate writ, order or direction calling for the records of Revision Application No. 104 of 2019 (MVV/HKP/ST/104/2019) from the Secretary, State Revenue Department (Appeals) and quashing and setting aside order dated 11.02.2020 passed by the Secretary, State Revenue Department (Appeals) in Revision Application No. 104 of 2019 (MVV/HKP/ST/104/2019);
(B) That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay the operation and implementation of order dated 11.01.2020 passed by the Secretary, State Revenue Department( Appeals) in Revision Application NO. 104 of 2019 (MVV/HKP/ST/104/2019) and be pleased to give a direction that no changes be made in the revenue records till the disposal of this petition; (C) For ad-interim relief in terms of prayer B; (D) For costs;
(E) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case;"
2. The brief facts of the case, as emerging from the petition are as under:-
Page 2 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022
C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 2.1 The petition pertains to land bearing survey no. 38/2 (Block number 97) admeasuring 4957 sq.mts situated at Village Sarsana, Taluka-Majura and District-Surat (hereinafter referred to as "the said land"). The said land is alleged to be standing in the name of Gandabhai Ranchhodbhai Patel in the revenue records. It is alleged that the petitioner and respondent nos.10 and 11 are daughters of Late Gandabhai and Late Mrs. Lalitaben Gandabhai Patel is wife of Late Gandabhai, and respondent no.4 is the son of said Gandabhai and brother of respondent no.10 and 11. It is alleged that in the year 1977, an entry was mutated in the records alleging that Late Gandabhai has given aforesaid land to respondent no.4, which was entered in the revenue records. It is alleged that this entry was based on Partition Deed. The document was not a Partition Deed but it was a Gift Deed. It is alleged that on 27.09.1984, Gandabhai had died and thereafter his heirs inherited the property and ultimately their names were mutated in the revenue record on the basis of the pedigree. It is alleged that on 16.02.1986, revenue entry no.258 came to be mutated wherein names of legal heirs of late Gandabhai were reflected. It is also alleged that, in the said entry, it is mentioned that the petitioner and respondent nos.10 and 11 Page 3 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 have relinquished their shares. It is alleged that on 30.12.1997 Lalitaben had died and upon her death, her interest in the said land was inherited by three sisters and they have become the co-owners of her interest in the said land.
2.2 According to the petitioner, on 31.03.2008, respondent no.4 has executed a Sale Deed in favour of respondent no.3 of the said land. It is alleged that respondent no.4 was not the owner of entire land, as sisters being the daughters of Lalitaben have also their shares in the land. Consequently, respondent no.3 did not get any title qua the shares of the sisters.
2.3 It is further alleged that on 24.06.2009, revenue entry no.
1003 was made in the name of Late Lalitaben and respondent no.4 as well as the children of respondent no.4. This entry was initially certified, however, later on it was cancelled. It is further contended that in the year 2010, respondent no.3 has made an attempt to remove Lalitaben's name from the revenue records. It is alleged that normally dead person's name is removed by bringing his/her heirs and after issuance of notice, but, in this case, no notice was issued to the heirs of Late Lalitaben i.e, her daughters. It is also alleged that attempt Page 4 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 was made after 15 years to remove the name of Lalitaben on the purported ground that she had relinquished her legal rights in the year 1996. It is contended that the purported document of relinquishing her rights is not registered. According to the petitioners, respondent no.3 has come out with the case that heirs of Lalitaben were joint sellers in the Sale Deed. 2.4 It is alleged that in September or October 2017, respondent no.3 made an application to the Mamlatdar for making an entry on the basis of purported Sale Deed dated 31.03.2008 bearing registration no. 13326/2016 (old registration no. 8192/2008), executed by respondent no.4. This application was made after delay of nine years. It is also contended that the Mamlatdar of Surat on 12.01.2017 had declined the request made on behalf of respondent no.3 on the ground that there was discrepancy between the names mentioned in the Village Form No.7/12 and the Sale Deed. Respondent no.3 has filed RTS Application No.16/2017 dated 17.01.2017 before Deputy Collector, Surat, inter alia challenging revenue entry no.258 dated 13.02.1986 and revenue entry no.1003 dated 24.06.2009, and also for a direction to make an entry recording his Sale Deed be certified. It is alleged that respondent no.3 had no right to challenge the Page 5 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 revenue entry no. 258 being an heirship entry of Late Gandabhai who died in the year 1984 and he had no relation with him. It is alleged that even respondent no.4 could not have challenged the said entry. It is alleged that the said appeals have a gross delay of about 31 years inasmuch as respondent no.3 had challenged the revenue entry no.258 dated 30.02.1986. It is alleged that along with the appeal, respondent no.3 has filed an application for condonation of delay which do not make out any case for condonation of delay. It is alleged that the legal heirs of Late Lalitaben were not implicated as party though they were necessary parties. 2.5 It is alleged that whenever proceedings are filed beyond period of limitation, the authority has no jurisdiction to examine it unless and until delay is condoned. However, no order has been passed in respect of condonation of delay and straight away by order dated 14.09.2017, the Deputy Collector had allowed the said appeal and set aside the revenue entry no. 258 dated 13.02.1986 and revenue entry no. 1003 dated 24.06.2009. It is also contended that the revenue entry no. 1986 dated 21.09.2017 was made recording the facts of the Deputy Collector's aforesaid order and another entry no.1988 dated 05.10.2017 was made recording the transaction of sale Page 6 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 by respondent no.4 in favour of respondent no.3. Further, it is contended that by order dated 27.03.2018 passed in Takrari case No.40/2017, the Mamlatdar had cancelled the entry No.1988. Therefore, respondent no.3 has filed RTS Appeal No. 85 of 2018 before the Deputy Collector challenging the order of Mamlatdar and the same is pending. It is further contended that being aggrieved and dissatisfied with the Deputy Collector's order dated 14.09.2017 passed in RTS Appeal No.16/2017 the petitioner has filed Revision Application No.37/2018 on 21.02.2018 before the Collector, Surat, wherein the Collector had stayed the order of the Deputy Collector and directed that no changes be made to the records till the next date. It is alleged that vide order dated 24.04.2018, the Collector continued the interim relief till the disposal of revision application no.37/2018. Further, it is contended that respondent no.3 had challenged the order of the Collector by filing revision application No.16/2017 before the SSRD wherein, the SSRD has rejected the revision application. It is further alleged that by final order dated 18.01.2019, the Collector had allowed the revision application no.37/2018 and set aside the order dated 14.09.2017 passed by the Deputy Collector in RTS Appeal No. 16/2017.
Page 7 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 2.6 It is further contended that on 08.02.2019, revenue entry no. 2050 was made recording the Collector's order, whereas the order of the Deputy Collector had been quashed and ultimately the entry was certified on 29.03.2019. It is further the case of the petitioner that in the meanwhile, on 16.02.2019, respondent no.3 herein has filed the revision application no.104/2019 before the SSRD challenging order dated 18.01.2019 passed by the Collector in Revision Application No. 37/2018 and also sought for stay of the order of Collector.
2.7 It is alleged that respondent no.3 has placed reliance on Sale Deed No.1998/94 pertaining to another parcel of land. On 30.03.2019 revenue entry No.2058 was made entering the names of the petitioner, respondent no.4 and respondent nos.10 and 11 as heirs of Late Lalitaben Patel. On 17.07.2019, respondent no.3 had filed Special Civil Application No. 12459/2019 against that order passed by the Collector in Revision Application No.37/2018, which came to be disposed of with a direction to SSRD to expedite the matter. 2.8 Considering the pendency of Revision Application No.104/2019, before the SSRD, the Mamlatdar declined to Page 8 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 certify the revenue entry no.2058 dated 30.03.2019. Thereafter, the SSRD vide its order dated 28.08.2019 rejected the interim application filed by respondent no.3 in Revision Application No.104/2019. It is further contended that respondent no.3 challenged that order by filing Special Civil Application No. 16972/2019 before this Court, wherein by order dated 03.10.2019, this Court had stayed the Collector's order and two appeals pending before Deputy Collector. Thereafter, the SSRD vide its order dated 11.02.2020 had allowed the Revision Application No.104/2019 and set aside the order of the Collector dated 18.01.2019 passed in RTS Revision Application No.37/2017. The petitioner has challenged this order of SSRD by filing this petition.
2.9 The petitioner has also referred to the other civil proceedings pending before the Civil Court, Surat being Special Civil Suit No.29/2018, which was filed by the petitioner, wherein notice was issued without granting ex-parte injunction. Against which the petitioner has preferred the Appeal from Order No.33 of 2018 before this Court, wherein this Court has directed the Civil Court to decide the interim application expeditiously and directed the parties to maintain status quo. The Civil Court has ultimately rejected the interim application Page 9 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 vide order dated 01.10.2018. It is contended that by order dated 11.10.2018 in Appeal from Order No. 246/2018, this Court has confirmed the interim order passed by the Civil Court. Against which the petitioner has, by way of SLP moved before the Apex Court. That the said suit is still pending.
3. By the aforesaid averments, the petitioner has contended that the entire exercise undertaken by the SSRD while deciding the revision application is illegal and the SSRD as well as the Deputy Collector have failed to appreciate that rights can never be transferred or given except by registered documents. It is also contended that the authorities have failed to appreciate that petitioner being legal heir had inherited the share in the land. The petitioner has also heavily contended regarding delay of 31 years in challenging the entry without any explanation of such delay. It was further contended that there was no order passed regarding condonation of delay and without assigning any reason the entry came to be set aside without hearing necessary parties. According to the petitioner, the authority has failed to appreciate that if an entry is made on the death of the person and, when there is discrepancy in the names mentioned in the revenue records, the legal right and interest of such person in the said land cannot be decided Page 10 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 without hearing necessary parties. It is contended that order of the learned Collector was in consonance with the facts and learned SSRD ought to have confirmed the same.
4. Heard learned advocate, Mr.Salil Thakore for the petitioner, learned AGP, Ms.Urmila Desai for the respondent- State and learned Senior Advocate Mr.R.S.Sanjanwala for learned advocate Mr.Amar Mithani for respondent no.3.
5. Learned advocate Mr. Thakore for the petitioner, while reiterating the facts narrated herein above, has vehemently submitted the aforesaid points and also vehemently submitted that Gandabhai had died in the year 1984 leaving behind his widow and four children. He has contended that succession entry was made in the year 1986, which was not challenged by anybody. He has also contended that the purchaser has challenged same in the year 2015 who has no locus standi. He has vehemently contended that same has been challenged after 31 years and there was no sufficient cause shown for condonation of delay. According to him, the authority concerned has committed an error of jurisdiction in deciding the appeal and delay condonation application by a common order. He has submitted that the succession entry is cancelled Page 11 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 after the death of Lalitaben. He has contended that necessary parties were not implicated in the said matter. He has contended that entry could only be challenged by family members and not by the purchaser. He has submitted that the learned Secretary has not considered various submissions made on behalf of the petitioner and has not dealt with the same.
6. Learned AGP Ms. Urmila Desai for the respondent-State has submitted that rights of the parties are being agitated before the Civil Courts and the litigations are pending. She has submitted that if ultimately it is found that petitioners are entitled to any relief then Civil Court will definitely pass order in their favour and the name of the petitioner would be mutated in the revenue record as per the order of Civil Court. She has further submitted that the order of learned SSRD is appropriate. She has therefore submitted to dismiss the petition.
7. Learned Senior Counsel Mr. Sanjanwala appearing with Mr. Amar Mithani for respondent no.3 has vehemently submitted that there were entries regarding partition between the parties. He has submitted that as per the distribution of the Page 12 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 property four properties went to the share of father and two properties went to the share of sons. He has submitted that in 1996 deceased Lalitaben had relinquished her rights in the property and, therefore, Jayantibhai remained the sole owner of the property. He has also submitted that there was sale transaction in the year 2008 and entry no.1003 was mutated thereof. He has submitted that as there was some dispute regarding payment of registration fee, sale deed came to be registered in the year 2016. He has submitted that, thereafter, entry no. 258 came to be entered in the revenue record at the relevant point of time. He has further submitted that it is the duty of the revenue authority to make entries of Sale Deed in the revenue record. He has pointed out that even as per the pedhinama there is signature of the petitioner. He has also stated that as per the reply of the petitioner herself, daughters of the deceased had relinquished their rights over the property in question. Learned Senior Counsel has also referred to the statement at page 79, wherein there are signatures of Jashubhai and other sisters, and it is stated that the sisters had relinquished their rights in favour of their mother and brother. 7.1 Learned Counsel Mr.Sanjanwala has also submitted that in view of entry no. 258 dated 16.02.1986, deceased Page 13 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 Gandabhai had died on 27.09.1984 and his daughters had relinquished their rights. It is submitted that the civil litigation is pending and there was order passed by the Civil Court as well as this Court and the matter has also went up to the Supreme Court, wherein no order is passed in favour of the petitioner herein. He has submitted that the issues have already been framed in the civil suit and thereafter the plaintiff has applied for additional issues.
7.2 Learned Counsel Mr. Sanjanwala has also submitted that so far as other land is concerned, the sale deed has also been entered. That the issues are already before the civil court and therefore the civil court will decide all the issues and in case of adjudication of civil court in favour of the petitioner, necessary entry will be mutated in the revenue record in favour of the petitioner. He has also submitted that there is sale deed dated 29.03.1996 wherein the mother has also relinquished her rights in favour of her son. He has further submitted that Jayantibhai Gandabhai in collusion with the petitioner has filed another Special Civil Suit No. 87/2020, wherein he has prayed for cancellation of the Sale Deed in favour of respondent no.3. He has also relied upon Section 135(c) of the Gujarat Land Revenue Code, and has submitted that it is incumbent duty on Page 14 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 the part of the revenue authority to make entries of the registered sale deed. He has therefore prayed to dismiss the petition. He has relied upon following decisions in favour of his submissions.
(1) JitendraSingh Vs. State of M.P reported in 2021 SCC 802 - para 6,7,8 (2) Balvantrai Ambaram Patel Vs. State of Gujarat reported in 2014 JX (guj) 1092 - para 5.3 and 5.5 (3) L.R.s of Popat Khima Ramani and ors Vs. Collector, Rajkot and ors reported in 2003(1) GLH 30 para 18 and 19.
(4) Umraji Musa Banglawala Vs. Ibrahim Isap Mhd. Ismail Sapa reported in 2004 JX (Guj) 1693. para 8.
8. In rejoinder, learned Counsel Mr. Thakore for the petitioner has submitted that the petitioner is claiming her right through her mother and, therefore, all the submissions made on behalf of the respondent that the petitioner has no right is devoid of merits. He has submitted that the entry no. 1003 may be set aside. He has submitted that it does not affect the right of the petitioner in regard to the cancellation of entries in question. He has submitted that the entire exercise is undertaken after delay of 31 years which is nothing but Page 15 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 abuse of process of law. He has submitted that learned SSRD has erred in setting aside the Collector's order on the ground that entry for registered sale deed has to be made. He has submitted that the deputy Collector has also erred in setting aside the entry on the ground that the sale deed has not been cancelled. He has submitted that during such proceedings the petitioners were even not joined. He has prayed that the impugned orders may be set aside. In support of his submissions, he has relied upon following decisions. (1) Paschim Gujarat Vij Company Ltd. Through Deputy Engineer Vs. Khemchand Nathabhai Gadhavi reported in 2011 (2) GLH 90.
(2) Order dated 09.07.2021 passed by this Court in the case of Roshanben Hajibhai Deraiya Vs. State of Gujarat in SCA No. 10065 of 2020.
(3) Radhiben and ors. Vs. Surtan Vesta Damor and anr. reported in AIR 2007 Guj 147.
9. Heard learned advocates for the parties and considered the submissions made by them, coupled with the material placed on record and judgments relied upon by them. Page 16 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022
10. In the case of Paschim Gujarat Vij Company Ltd. Through Deputy Engineer Vs. Khemchand Nathabhai Gadhavi reported in 2011(2) GLH 90.
"(8) From the bare reading of the aforesaid provision, it is clear that if the appeal is filed beyond the period of limitation, then it has to be accompanied by an application supported by affidavit for condoning delay in filing the appeal. In absence of any application supported by an affidavit for condoning of delay, the appeal is rendered time barred and is liable to be dismissed even in absence of plea of limitation having been set up as a defence. The appeal was time barred when it was filed.
The defect could not be cured by filing a delay condonation application subsequently.
(9) The view taken by us finds support in paragraphs 32 and 33 of the decision of the Apex Court in Noharlal Verma vs. District Cooperative Central Bank Ltd., Jagdalpur, (2008) 14 Supreme Court Cases 45, wherein the Apex Court held as under:
"32. Now, limitation goes to the root of the matter. If a suit, appeal or application is barred by limitation, a Court or an adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits.
33. Sub-Section (1) of Section 3 of the Limitation Act, 1963 reads as under:Page 17 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022
C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 "3. Bar of limitation- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence."
(emphasis supplied).
Bare reading of the aforesaid provisions leaves no room for doubt that if a suit is instituted, appeal preferred or application is made after the prescribed period, it has to be dismissed even though no such plea has been raised or defence has been set up. In other words, even in absence of such plea by the defence, respondent or opponent, the Court or authority must dismiss such suit, appeal or application, if it is satisfied that the suit, appeal or application is barred by limitation."
11. In order dated 09.07.2021 in the case of Roshanben Hajibhai Deraiya Vs. State of Gujarat in SCA No. 10065 of 2020, this Court has held as under:-
"[8] The document consent/affidavit dated 02.08.2010 was during the lifetime of the father, wherein the petitioner had indicated that she agrees to the decision of her father to enter the names of the brothers and her right in the land is to be relinquished. The affidavit is now disputed by the petitioner and when such document under which the right is to be relinquished, then the Page 18 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 document is required to be registered. In case of Yellapu Uma Maheshwari (Supra), the Apex Court has held in paras-17 and 18 are as under:-
"17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same not registered, becomes an inadmissible document as envisage under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17(i)(b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B-21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.Page 19 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022
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18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 A.O. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B-22 for collateral purpose subject to proof and relevance."
[9] Admittedly, the affidavit/consent does not meet the requirement of Section 49 of the Registration Act, capable to transfer a right, hence cannot be treated to be a relinquishment deed and therefore, the right of the petitioner on the basis of this document cannot be treated to have extinguished. It was such document even if is to be used as a basis for relinquishment, it has to be Page 20 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 appreciated by establishing the same by cogent evidence. Non-registration of the document is an impediment for straightway making such document admissible."
12. In the case of Radhiben and ors. Vs. Surtan Vesta Damor and anr. Reported in AIR 2007 Guj 147.
"7. ......... Sec.17 of the Indian Registration Act provides that if some tangible immovable property worth less than Rs.100=00 (Rupees One Hundred only) is sold and delivery of possession is also effected, then, such sale, on delivery of possession, would be complete. The law provides that if any tangible immovable property worth Rs.100=00 (Rupees One Hundred only) or more is sought to be transferred or alienated, then, such transfer is required on proper stamp and is required to be registered also. Consequence of non-registration is shown under sec.49 of the Indian Registration Act. Sec.49 clearly provides that in a case where document, which under the law, was required to be registered, if is not registered, then, the same would not be admitted in evidence, except for collateral purpose. If a document is not admissible in evidence and cannot be relied upon, nor does convey title in the law, then, on the basis of such document, an entry could not be made in the revenue record. In the revenue record, entry can be made only if Page 21 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 some legal document conveys title in favour of the purchaser or, person aspiring for entry in his favour has obtained right under some revenue laws. In the present case, on the basis of an unregistered sale, which admittedly was oral one, an entry in favour of the defendant could not be made.
8. Civil Court ordinarily would not interfere in the matters where courts of limited jurisdiction or exclusive jurisdiction have exercised their authority. A civil court would interfere in a matter, if it is held by the Court that provisions of law have been violated to their hilt, the authority / officer had no jurisdiction to do something or principles of natural justice have been violated. The moment the Court comes to the conclusion that act or action of an authority is bad and runs contrary to law, then, the civil court shall immediately assume the jurisdiction and correct the wrong committed by the authorities. The courts below, in the considered opinion of this Court were unjustified in holding that the Civil Court had no jurisdiction in the matter. The concept of jurisdiction is not based upon the plain reading of provisions of law, because, it is trite to say that a Civil Court is always jealous of a provision which ousts its jurisdiction. A Civil Court has to be too cautious and careful in understanding and appreciating the provisions which say that the civil court has no jurisdiction.Page 22 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022
C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 All the conditions to denude the Civil Court of its powers must be complied with. Moment a civil court holds that any other court of exclusive jurisdiction has violated the provisions of law or has not observed the law or has violated the principles of natural justice, then it is bound to exercise its jurisdiction."
13. In the case of Jitendra Singh Vs. State of Madhya Pradesh and Others reported in 2021 SCC Online SC 802 , the Apex Court has observed as under:-
"6. It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.Page 23 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022
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7. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
8. In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-
of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
14. In the case of Balvantrai Ambaram Patel Vs. State of Gujarat reported in 2014 JX (Guj) 1092, this Court has observed as under:-
"5.3 As per Section 135-C of the Code extracted above, any person who acquires right on any land or is able to assert right of occupancy, ownership, mortgage, etc., it is provided that he shall make report to the designated officer. Second Proviso to the provision is material for Page 24 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 the purpose of the case on hand, which says that any person acquiring a right by virtue of a registered document is exempted from the obligation to make report to the designated officer. The said Proviso in other way recognizes the legal effect of a registered document by virtue of which a person may have purchased the land. He will be then able to assert his right as owner by virtue of the registered sale deed itself from which, for him all incidences of ownership would flow. Therefore once there is a registered document of sale of land, the purchaser would be entitled to get his name mutated in the revenue records on that basis.
..............
5.5 A conjoint effect of aforesaid provisions is that in cases of a claim made for mutation by a person in capacity of owner on the basis of registered sale deed, the designated officer is bound to enter his name as having purchased the land by lawful mode of transfer. As already noticed, a person purchasing the land by registered sale deed is not supposed to make a report to the designated officer for the purpose of entries in the revenue records, as is contemplated in relation to other cases. The working of the provisions of Sections 135-C and 135-D obtained a position that a mutation entry has to be made by the designated officer on the basis of the registered document, in the instant case, a document of sale. After making mutation entry in favour of such person recognizing his claim on the basis of registered document, the designated officer thereafter may follow the procedure under Section 135-D, implying that the competent officer may subsequently deal with the objections received and dispose of the same in accordance with the provisions of sub-sections of Section 135-D."
15. In the case of L.R.s of Popat Khima Ramani and others Vs. Collector, Rajkot and others reported in 2003 (1) GLH 30, this Court observed as under:-
"18. There is no dispute about the fact that Regular Civil Page 25 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 Suit No. 892 of 1998 is already pending in the Court of the learned Civil Judge (S.D.), Rajkot between the parties with respect to the same land which is the subject-matter of the present petition. The petitioners' submission is that since the plaintiff in that suit (i.e. respondent No. 4 herein) had also prayed for interim injunction and the trial Court had by order dated 9-10-1997 refused it and the District Court confirmed that order by its order dated 10-12-1998, the revenue authorities ought to have followed that interim order because even the interim orders of the Civil Court are subject to the principle of res judicata (vide Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993).
On the other hand, Mr. P. M. Thakkar for respondent No. 4 has submitted that although the same land is the subject of that suit, in the interim order in that suit the Civil Court has merely dealt with the question of possession of the land in question and held that it is with the present petitioners i.e. the defendants in that suit, but the Civil Court has not dealt with the question of legality and validity of the entry in the revenue record.
19. Having heard the learned Counsel for the parties, this Court is of the view that as far as the limited question of legality or validity of entry No. 3635 is concerned, in view of the provisions of Sub-section (1) of Section 135-L of the Bombay Land Revenue Code, the suit for challenging the mutation entry in the record of rights is not maintainable. At the same time, as per the settled legal position, the revenue authorities are bound to give effect to the decision of the Civil Court on a dispute about title to the land.
Two of the issues raised in the said suit are as under :-
"(2) Whether the plaintiff proves that the suit property is inherited by her from her deceased father Ladha Ratna as his only heir?
(4) Whether the defendants prove that in view of registered Will, registered adoption deed, registered partition deed, alleged possession and alleged cultivation by the plaintiff of the suit land is not admissible in evidence under Section 91 and Section 92 of Evidence Act?"
It is, therefore, clear that the aforesaid issues are very much pending before the Civil Court. The matter involves Page 26 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 serious disputes about the title to the property, and therefore, in view of the aforesaid decisions of this Court, the Collector and the Principal Secretary, Revenue Department (Appeals) were not required to convert the R.T.S. proceedings into a battle field about title to the land in question."
16. In the case of Umraji Musa Banglawala Vs. Ibrahim Isap Mhd. Ismail Sapa reported in 2004 JX (Guj) 1693, this Court has observed as under:-
"8. Therefore, keeping in view of the aforesaid observations made by this Court in the above referred judgement, it appears that it would not be proper to hold that even if there are breaches under other enactment or such transfer is barred under the other enactment, the revenue authorities exercising power under Code could have ignored the same for the purpose of recording the mutation. At the same time, the authorities exercising power under the Code will have to exercise the jurisdiction within the limits of the statutory provisions of the Code. Therefore, on reconciling of both the aspects, it appears that in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment of which breach is committed and the entry should be made subject to the final decision which may be taken by the competent authority under the other concerned enactment. This Court is inclined to take such view, because the one, who may be a bonafide purchaser or one who is interested to purchase the property would normally rely upon the revenue entry for enquiring into the title and the possession of the Page 27 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 property. If the entry is certified on the basis of registered sale deed as it is, without recording for aforesaid qualification or clarification, the resultant effect would be that it will not be made known to the either person interested or to the other party who may act upon the revenue entry that the present transaction may be in breach of the other enactment and consequently it may result into not giving correct picture of the title or possession of the property in question in accordance with law. If the entry, on the basis of the sale deed is not at all effected, with the aforesaid qualification or without aforesaid qualification, it may also conversely mislead the public at large and also to those persons who act upon the revenue record, because there will be no recording of such transactions of registered sale deed which has the effect of conferring the right on property unless it is prohibited by the relevant statute under the other enactment or unless such sale deed is declared as null and void by the competent authority or through the process known to law. Therefore, it cannot be said that the authority exercising power under the Land Revenue Code has absolutely no jurisdiction to even prima facie consider the matter as to whether the breach of the other enactment is committed or not. At the most, it can be said that the authority exercising power under the code has no power to conclude as to whether the breach of the other enactment by the impugned transfer or registered sale deed is made or not."
17. Having considered the submissions made on behalf of both the sides, coupled with the material placed on record and legal proposition, referred to hereinabove, it is an admitted fact that civil litigation is going on between the parties. It is also an admitted fact that the petitioner has filed Special Civil Suit No.29 of 2018 before the trial Court for 1/4 th share in the suit property and also for declaration that the Sale Deed executed in favour of private respondent is not binding to her Page 28 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 and for cancellation thereof as well as for injunction against the defendants from alienating the suit land in any manner. It is also an admitted fact that, in the said suit, present petitioner has moved an application for ad-interim injunction, which came to be rejected by the trial Court. Against which Appeal from Order No.246 of 2018 came to be preferred before this Court. Coordinate Bench of this Court vide order dated 11.10.2018 has rejected said Appeal from Order, which order was passed on the same factual aspects, which are narrated in the present petition. Said order of this Court came to be challenged before the Apex Court by way of Special Leave Petition No.1490 of 2019, which came to be dismissed by Honourable Apex Court on 25.1.2019.
18. It also reveals from record in the suit being Special Civil Suit No.116 of 2017 came to be filed by respondent nos.4 and 5 to 8 for cancellation of the registered Sale Deed. It also appears from record that respondent no.4 has also filed Regular Civil Suit No.87 of 2020 for cancellation of registered Sale Deed executed in favour of respondent no.3 herein. Thus, civil litigation in regard to cancellation of Sale Deed as well as of sale of the suit property are pending before the Civil Court. The contentions raised herein in the present petition are also Page 29 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 subject matter of civil litigation between the parties.
19. It also reveals from revenue records that entry no.222 was mutated on 9.11.1997 and certified on 12.11.1997 in respect of land of Block No.97, Survey No.38/2 and land bearing Survey No.46/9/2 to Jayantibhai. According to this entry, deceased Gandabhai was independent owner of the lands and willingly given land of Block No.97, Survey No.38/2 in partition to his son Jayantibhai and land of revenue Survey No.46/9/2 would remain with him. Such arrangement was made on the basis of document dated 8.12.1997 and the statements of the parties. From the copy of document dated 11.11.1997 i.e. Agreement of Partition, it appears that deceased Gandabhai was owner of the land situated at Village- Sarsana and Village-Bhimrad. It also reveals that he was the owner of land bearing Survey No.38/2/1 and Survey No.46/9/2 situated at Village-Sarsana and of land bearing Survey No.1/1+2, 52, 71/2, 73/1 and 96/2 situated at Village-Bhimrad. As per said agreement, the lands of Survey No.1/1+2, 52, 73/1 and 96/2 came to the share of deceased Gandabhai, whereas land of Survey No.38/2/1 and land of Survey No.71/2 came to the share of his son Jayantibhai. It also reveals that entry no.222 was mutated and certified in the record of rights of Page 30 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 Village-Sarsana and another entry no.561 was mutated and certified on 9.11.1977 in the Records of Rights of Village- Bhimrad for the land situated at Village-Bhimrad.
20. It also reveals from record that by entry no.660 mutated on 12.6.1990, which was later on certified, names of all the heirs of deceased Gandabhai including present petitioner were recorded for the land of Survey No.1/1+2, 52 and 73/1 after death of Gandabhai. It also appears from record that there is also entry no.528 mutated on 13.2.1986, which was certified on 20.3.1986, regarding that three daughters including present petitioner, relinquished their rights from the land in favour of Jayantibhai. There are also copies of statements of petitioner and other daughters as also mother Lalitaben relinquishing their rights from Survey No.46/9/1.
21. Copy of statement is produced in this matter on page 77 of the compilation, which contains the signature of present petitioner and thumb impression of her mother and signature of one Motlaben Dhirajbhai. It is also in statement at page 79 regarding relinquishment of their rights pertaining to land bearing Survey No.46/9/2. It also reveals from Deed of Relinquishment (page 108) dated 29.3.1996, that Laliben Page 31 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 Gandabhai has relinquished her rights in the parcel of land, which includes land of Sarsana of Survey No.38/2 as well as three survey numbers of Bhimrad Village.
22. It also reveals from Sale Deed dated 11.2.1994 pertaining to land bearing Survey No.71/1 (page 301 to 319) that the petitioner along with her mother and sister has signed that document accepting the fact that the land in question belongs to his brother Jayantibhai Gandabhai. Considering the contents of the Sale Deed, it appears that the petitioner with her two sisters and mother Lalitaben have stated therein that they have been joined as "vendors" in the Sale Deed to ensure that no defect remains in the title conveyed to the predecessor and that as per entry no.561 recorded in the Record of Rights on 9.11.1977 only Jayantibhai, son of deceased Gandabhai was given the land bearing Survey No.71/2 with ownership rights. This contention would suggest that the plaintiffs have knowledge with regard to entry made on 9.11.1977 in respect of lands of her father and the arrangement made by her father as recorded against entries made on 9.11.1977.
23. The petitioner has contended that upon death of her mother, the rights of heirship would dwelve upon her Page 32 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 daughters under the Hindu Succession Act, and private respondent has no right to challenge the entry made in the revenue records after long delay. At this stage, it is pertinent to note that all the contentions raised in this petition are also at large before the Civil Court in a suit filed by the petitioner herself and other two suits filed by the respondents, who are heirs of Gandabhai. The question raised regarding cancellation of the Sale Deed in favour of respondent no.3 is also before the Civil Court. Thus, the dispute raised by the petitioner is pending before the Civil Court and the Civil Court will decide the same in accordance with law. Civil rights regarding property in question would definitely be decided by the Civil Court. It appears from the impugned order of learned SSRD that it has set aside the order of the subordinate revenue authority only on the ground that all the contentions raised by present petitioner are pending before the Civil Court for its decision and, therefore, until the decision is arrived at by the Civil Court, no order ought to have been passed by the subordinate Revenue Authority. The observations of learned SSRD that since the matter is sub-judice with the Civil Court, revenue authority should wait till then, is just and proper. Further all the questions which have been raised by the petitioner are disputed questions of facts. Therefore, under the Page 33 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022 C/SCA/5730/2020 CAV JUDGMENT DATED: 15/03/2022 provisions of Article 226 and 227 of the Constitution of India, it cannot be decided in the present petition and proper remedy is to get it adjudicated from Civil Court. Now, admittedly the petitioner herein as well as other respondents have already moved Civil Court for adjudication of the civil rights of the parties.
24. In that view of the matter, no interference is called for in the impugned order passed by learned SSRD. Accordingly, present petition is dismissed as the civil rights of the parties are at large before the Civil Court. It is made clear that Civil Court shall decide Civil Suit in accordance with law without being influenced by any of the observations made in this petition by this Court. No order as to costs.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 34 of 34 Downloaded on : Wed Mar 16 01:19:25 IST 2022