Gujarat High Court
Paliben D/O Bhanabhai Gopalbhai And ... vs Legal Heirs Of Late Khandubhai ... on 18 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16547/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16547 of 2017
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PALIBEN D/O BHANABHAI GOPALBHAI AND WD/O RATILAL
LALLUBHAI....Petitioner(s)
Versus
LEGAL HEIRS OF LATE KHANDUBHAI BHANABHAI PATEL &
5....Respondent(s)
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Appearance:
BHARGAV KARIA & ASSO, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/09/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 07/04/2017 passed by the SSRD at Ahmedabad, by which, the SSRD rejected the revision application filed by the applicant herein, thereby, affirming the order of the Collector, Valsad, dated 19/08/2916.
2. The dispute between the parties pertains to the agricultural land bearing Khata No.159, Block Nos./Survey Nos.187/1, 187/2 and 279, situated at VillageSarona, Taluka & District Valsad. These parcels of the land were running in the joint names of Khandubhai Bhanabhai; Shantaben Bhanabhai; Lakhiben Bhanabhai and Paliben Bhanabhai (applicant).
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3. It appears that the applicant herein alongwith her two sisters viz.Shantaben and Lakhiben relinquished her share in the properties in favour of her brother i.e.Khandubhai Bhanabhai. Khandubhai Bhanabhai passed away and now his legal heirs are on record. This relinquishment of the share and interest in the properties took place sometime in the year 1997 and an entry bearing no.1851 dated 28/05/1997 came to be mutated in the record of rights in that regard. After almost 17 years from the date of the mutation of the entry referred to above, one of the sisters i.e. the applicant herein thought fit to question the same.
4. The Deputy Collector, Valsad, in his order dated 09/09/2015 held as under: Findings: (1) With respect to land situated at Moje Saron, Tal.Dist. Valsad, bearing Khata No. 159, included in the Block/Survey No. 187/1, 187/2 and 297, the competent authority has certified on 22/10/1997 the Mutation Entry No. 1851, dated 28/5/1997, made for removing the name from the records of said property. The present appellant has preferred an appeal against the said Mutation Entry after an ordinate delay of 17 years. In the delay application, the appellant has not mentioned any clear ground as to why such long delay took place. Therefore, as per the provisions of Section5 of the Limitation Act, such delay is not liable to be condoned. As his appeal suffers from bar of the Limitation Act, his appeal is prima facie not accepted.
(2) The present appellant has made signatures in the notice vide Section 135(D) produced in respect of Mutation Entry No. 1851 and in the copy of the reply before TalaticumMantri. Therefore, it is clarified that she has accepted the disputed Entry. She has made a thumb impression in her present appeal application and she has tried to mislead the Court by stating that she is illiterate.
(3) Only the present appellant has filed an appeal against the Mutation Entry No.1851. Her two sisters (1) Lakhiben, daughter of Bhanabhai Gopalbhai and (2) Shantiben, daughter of Bhanabhai Gopalbhai, whose names have also been cancelled vide Mutation Entry No. 1851, have not filed any appeal application. On the contrary, they have stated on affidavit dated 23/3/2015 on the stamp paper of Rs.20/ before the Notary that "our one sister Paliben has currently filed RTS/Appeal No. 128/2014 before the Court of Deputy Collector, Valsad, which is wrong because our father and our brother Khandubhai Bhanabhai had already given whatever is to be given to us at the time of our marriage and thereby, they had given us three sisters our share. Therefore, we three sisters had given an application to waive our Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Oct 01 23:33:56 IST 2017 C/SCA/16547/2017 ORDER share from the land bearing Khata No. 159 and remove our names from the record in favour of our brother Khandubhai and we three sisters had willingly made entry in the records for removal of rights in respect of Mutation Entry No. 1851. We were served with the notice of Section 135(D) of the Land Revenue Code, wherein we three sisters had given consent and willingly made our names cancelled. Such fact is true.
5. The order of the Deputy Collector was carried in revision before the Collector,Valsad. The Collector vide his order dated 19/08/2016 held as under: (1) Land bearing Block Nos. 187/1, 187/2 and 297 situated at Moje Saron, Tal.Dist Valsad has been registered in the Village records in the joint names of Khandubhai Bhanabhai, Shantaben Bhanabhai, Lakhiben Bhanabhai and Paliben Bhanabhai, out of which, as Shantaben, Lakhiben and Paliben have waived their right, their names were removed. Mutation Entry No. 1851, dated 28/5/1997 was registered in this regard, which was certified on 22/10/1997 by the competent officer. Aggrieved by it, the present applicant made an appeal in the Court of Deputy Collector, Valsad. In this case, the Deputy Collector, Valsad has, vide his order No. RTS/Appeal No. 128/2014 dated 9/9/2015, not accepted the appeal of the appellant, as it has bar of the Limitation Act and an order was passed to confirm the decision of the concerned competent authority certifying the Mutation Entry No. 1851, dated 28/5/1997. Aggrieved by it, applicants have made a Revision Application in this Court.
(2) The property in question is ancestral and the applicants in this case are lineal heirs of deceased Bhanabhai Gopalbhai, which fact is undisputed, but considering the evidences produced in Entry No. 1851, the applicants have given a reply before TalaticumMantri, Saron for waiving their rights/share from the property in dispute. Moreover, in the reply of all the heirs before TalaticumMantri, names of the applicants have been written in the details of the persons whose names are not to be entered regarding the said property. In addition, in connection with receipt of the notice of Section 135D of Land Revenue Code, since the decision, which has been taken by considering the merits of the applicant, is just and proper, there appears no reason to interfere, therefore, it is liable to confirm.
6. Thereafter, the matter was taken before the SSRD and the SSRD in the impugned order held as under: "Considering submission of the parties regarding the above facts, order of the Collector, record of the subordinate Court and provisions of the Revenue Laws, the property in question is ancestral and the applicants in this case are lineal heirs of deceased Bhanabhai Gopalbhai, which fact is undisputed, but considering the evidences produced in Entry No. 1851, it appears that the Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Oct 01 23:33:56 IST 2017 C/SCA/16547/2017 ORDER applicants have given a reply before TalaticumMantri, Saron for waiving their rights from the property in dispute. Moreover, in the reply of all the heirs before TalaticumMantri, names of the applicants have been written in the details of the persons whose names are not to be entered regarding the said property. In addition, in connection with receipt of the notice of Section 135D of Land Revenue Code, the applicant has made her signature and after receiving the notice, she has not raised any objection or dispute against Mutation Entry No. 1851 at the relevant time. It transpires that the applicant had shown her willingness to waive her right from the property in dispute at the relevant time. In these circumstances, after a delay of 17 years, the applicant cannot raise any objection or dispute against Entry No. 1851 regarding removing her name from the records. Deputy Collector, Valsad has, in his order, discussed in detail regarding the points mentioned in the above findings and in view of the submissions of the parties, evidences produced by them and merits of the case, the decision made by him is just and proper, therefore, there appears no reason to interfere in it. Hence, it is liable to confirm. Such finding of the Collector is appropriate because Entry No.1851 was registered in the year 1997 and it was challenged after 17 years. Moreover, the right was waived willingly at the concerned time. Therefore, bar of Estoppel is applied. Compromise was arrived at before Legal Authority in 2014, which should be taken into consideration. Applicant has waived her rights at the relevant time. Disputed Entry has been approved after following legal procedure. At the time of marriage, father of the applicant and Khandubhai have given to the sisters whatever was to be given to them in respect of their share. Considering all these details, following order is passed regarding Revision Application of the applicant.
:: ORDER ::
Revision Application of the applicant is rejected. Order No. CB/RTS/Revision Case No. 18/2016, dated 19/08/2016 of Collector, Valsad is ordered to be confirmed.
Given under my signature and seal today on 7/4/2017.
By order and in the name of Governor of Gujarat.
Sd/ Illegible (Vinay Vyasa) Secretary Revenue Department (Dispute) Ahmedabad.
7. Against the concurrent findings of the three revenue authorities, the applicant is here before this Court with this petition under Article 227 of the Constitution of India.
8. Having heard the learned counsel appearing for the parties and Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Oct 01 23:33:56 IST 2017 C/SCA/16547/2017 ORDER having considered the materials on record, I am of the view that no error not to speak of any error of law could be said to have been committed by the three revenue authorities in passing the impugned orders. No interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India. If the applicant herein claims to have any right, title and interest in the subject land, then she will have to file a Civil Suit in that regard seeking an appropriate declaration in accordance with law.
With the above liberty to file an appropriate civil suit, if it is otherwise maintainable in law, this petition is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) aruna Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Oct 01 23:33:56 IST 2017