Gujarat High Court
Kanubhai Ishwarbhai Prajapati vs State Of Gujarat on 27 July, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/15741/2021 ORDER DATED: 27/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15741 of 2021
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KANUBHAI ISHWARBHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
VMP LEGAL(7210) for the Petitioner(s) no. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) no. 1,2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 27/07/2022
ORAL ORDER
1. With the consent of the learned Advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue Rule. Mr. Jayneel Parikh, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.
3. By the present petition, the petitioner is aggrieved by the action of the respondent no. 2 in entering his name in the column of other rights.
4. The brief facts are that the petitioner, possesses the ownership of the land bearing survey no. 75/2 admeasuring 7,993 sq.mts. situated at village Tragad, taluka Ghatlodia, district Ahmedabad (hereinafter referred to as "the land in question"). Kankubai Wd/o Ranaji Bhaguji bequeathed the land by way of a Will dated 05.06.1970 in favour of the petitioner. She passed away on 04.11.1972, and an application being Civil Misc. Application no. 66 of 2004 was filed seeking probate, apropos which, by order dated 20.12.2005 probate was issued. The petitioner therefore, submitted an application for mutating the names of the Page 1 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 beneficiaries in the revenue record. Entry no. 2582 dated 29.03.2006 was posted in the revenue record and was certified on 08.09.2006. Aggrieved by the mutation of entry, some of the heirs and legal representatives challenged the same before the Deputy Collector, who dismissed the same vide order dated 20.07.2007; however, in appeal, the Collector passed an order dated 20.10.2008, canceling the entry no. 2582. While doing so, the Collector had observed that mutation of the entry will be subject to the outcome of the Civil Misc. Application no. 85 of 2006. Against the order of the Collector, the petitioner had preferred revision application before the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned Secretary"), which came to be dismissed vide order dated 30.11.2016. As, in the interregnum, the proceedings being First Appeal no. 3845 of 2009 were pending, the mutation of the entry was made subject to the outcome of the First Appeal no. 3845 of 2009.
5. According to the petitioner, during the pendency of the First Appeal no. 3845 of 2009, the parties to the dispute, arrived at a settlement. As a result whereof, consent terms dated 11.10.2019 came to be executed, agreeing for retention of the lands by the respective parties, as indicated therein. The consent terms dated 11.10.2019 were filed before the Division Bench of this Court and vide order dated 14.10.2019, the Division Bench, while accepting the settlement between the parties, directed decree to be drawn in accordance with the terms of the settlement. Consequentially, the decree came to be drawn in terms of the consent terms. So far as the land in question is concerned, i.e. survey no. 75/2, the same was allowed to be retained by the petitioner with all rights, title and interest
6. The petitioner, thereafter, submitted an application dated 28.06.2021 to the City Mamlatdar, pointing out the consent terms so also, the order passed by this Court in the First Appeal and Page 2 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 requested to mutate the name of the petitioner with respect to the land in question. The Mamlatdar, Ghatlodia posted entry no. 4889 dated 07.07.2021, which was certified on 19.08.2021, recording the consent terms; however, it entered the name of the petitioner in column of the other rights. The petitioner is aggrieved by the said order and hence, the captioned writ petition.
7. Mr. Vimal Patel, learned Advocate submitted that as a result of the proceedings before the Civil Court, the probate came to be granted in favour of the petitioner whereby the land in question had come to the share of the petitioner. Since the petitioner applied for mutation of entry, entry no. 2582 was posted in the revenue record by the Mamlatdar and the same was confirmed by the Deputy Collector by passing order dated 20.07.2007. It is submitted that in appeal, by Savitaben Chanduji Thakor and others, the Collector quashed the order of the Deputy Collector dated 20.07.2007, so also the order dated 08.09.2006. The Collector has observed that mutation of entry would be subject to the outcome of the Civil Misc. Application no. 85 of 2006. It is submitted that since the petitioner was aggrieved, revision application was preferred before the learned Secretary who, passed an order dated 30.11.2016. Though the revision application was rejected, the same was made subject to outcome of the First Appeal no. 3845 of 2009, which was pending before this Court.
8. It is further submitted that during the pendency of the First Appeal no. 3845 of 2009, parties, have entered into settlement which resulted into execution of consent terms, which covered the properties as mentioned and indicated in the clauses of consent terms i.e. Clauses (A),(B),(C),(D),(E) and (F). It is submitted that as per the consent terms, it was agreed between the parties, that the properties mentioned as (A), (B), (C) and (D) were to be retained by way of ownership, with all rights and title, by the respondents therein. Further, as per item no. 3 it was agreed between the Page 3 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 parties that the respondents therein shall not claim any right, title or interest in respect of the properties mentioned as (E) and (F). It is submitted that the properties which are mentioned at item nos. (E) and (F) were land bearing survey no. 73/1 and land bearing survey no. 75/2. It is submitted that the confusion was created because of item no. 5 whereby it is mentioned that the order dated 09.09.2009 allowing the appeal was modified to the effect that the Will dated 16.12.1970 and the order dated 09.09.2009 for issue of probate of the said Will is to be considered for all the properties mentioned in the Will dated 16.12.1970 except the land in question and the land bearing survey no. 73/1.
9. It is next submitted that this Court was kind enough to pass an order dated 14.10.2019 accepting the consent terms and directing decree to be drawn in accordance with the terms of the settlement. It is submitted that when this Court, accepted the settlement and has directed decree to be drawn as per the settlement, there was no reason available to the Mamlatdar to have partly accepted the request of the petitioner; posting the name of the petitioner in the column of other rights, instead of, in the column of occupants. It is submitted that by doing so, it is likely that the said entry may be misused by the heirs and legal representatives of the executor of the Will. It is therefore submitted that when the Collector while passing the order dated 20.10.2008 had made mutation of the entry subject to the outcome of the Civil Misc. Application no. 85 of 2006 and the learned Secretary while passing the order dated 30.11.2016 has made it subject to the outcome of the First Appeal no. 3845 of 2009, the name of the petitioner should have been mutated in the revenue record without there being any further confusion at the end of the Mamlatdar. It is therefore, urged that considering the order of the learned Collector dated 20.10.2008; the order dated 30.11.2016 of the learned Secretary; consent terms dated 11.10.2019, so also the order of the Division Bench dated 14.10.2019, in juxtaposition, the entry of the Page 4 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 petitioner ought to have been mutated in the revenue record without any further objection. It is therefore urged that the petition deserves to be allowed with the direction to the Mamlatdar to enter the name of the petitioner in the revenue record.
10. On the other hand, Mr. Jayneel Parikh, learned Assistant Government Pleader submitted that the probate was granted by the Civil Court; however, the order granting probate was challenged in appeal by the legal representatives, which came to be modified vide order dated 09.09.2009 and the probate came to be revoked. It is submitted that against the said order dated 09.09.2009, First Appeal has been preferred before this Court, but, the earlier order dated 09.09.2009 remains. Therefore, the Mamlatdar has rightly posted the name of the petitioner in column of other rights. It is next submitted that subject matter of challenge is the order of the Mamlatdar and there is an alternative remedy available to the petitioner against the order of the Mamlatdar. Therefore, it is urged that the petition may not be entertained and may be dismissed.
11. Heard the learned Advocates appearing for the respective parties and perused the documents available on record.
12. By this petition, the petitioner has prayed for direction to the City Mamlatdar, Ghatlodia to mutate the name of the petitioner in the revenue record with respect to the land in question i.e. the land bearing survey no. 75/2 admeasuring 7,993/- sq. mts. The Will dated 05.06.1970 was executed by Kankubai Wd/o Ranaji Bhaguji in favour of the petitioner bequeathing the land including the land in question. She passed away on 04.11.1972 without leaving behind any heirs. The petitioner, in the year 2004 filed a Civil Misc. application no. 66 of 2004 seeking probate which came to be allowed vide order dated 20.12.2005. On the basis of the probate, issued in favour of the petitioner, entry no. 2582 was posted in the Page 5 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 revenue record and was certified on 08.09.2006. The legal representatives namely Savitaben Chanduji Thakor and others unsuccessfully challenged the entry no. 2582 before the Deputy Collector. Against the order of the Deputy Collector dated 20.07.2007, an appeal before the District Collector was preferred who, vide order dated 20.10.2008 allowed the revision application and set aside the entry no. 2582. While doing so, the District Collector observed that the order that may be passed in Civil Misc. Application no. 85 of 2006 would be binding to the parties.
13. In the interregnum, Savitaben Chanduji Thakor and others, had filed Civil Misc. Application no. 85 of 2006 praying for grant of probate in respect of the Will dated 16.12.1970 as well as revocation of the probate dated 20.12.2005 granted in Civil Misc. Application no. 66 of 2004. The District Court, Ahmedabad, vide order dated 09.09.2009 allowed the Civil Misc. Application no. 85 of 2006 by passing an order Exh. 99. By the said judgment, the probate which came to be granted vide order dated 20.12.2005, was revoked. What weighed with the learned Principal Senior Civil Judge, while revoking the probate was a registered Will which was thirty years old and while applying the provisions of Section 90, of the Indian Evidence Act, 1872, the said Will dated 16.12.1970, was considered to be a genuine. The petitioner being aggrieved had challenged the said judgment Exh. 99 before this Court by filing a First Appeal no. 3845 of 2009.
14. During the pendency of the First Appeal, the parties, arrived at the consent terms dated 11.10.2019 with respect to the movable and immovable properties. The consent terms, is reproduced hereinunder for ready reference:
"1. That the Appellant and respondents have amicably resolved their private dispute in respect of following properties as mentioned herein below as (A), (B), (C), (D), (E) & (F), which are the subject matter of Movable and Immovable properties under two separate wills dated 05/06/1970 and 16/12/1970 by Kankubhai W/o. of Ranaji Page 6 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 Bhagaji resident of Village: Tragad in Ahmedabad.
(A) Three residential plots in village: Tragad, Ahmedabad.
(B) Garthal land at Thakorevas at Village: Tragad,
Ahmedabad
(C) Vadaland at Village: Tragad, Ahmedabad
(D) All the Gold, Silver and Other Jewellers and Other
articles.
(E) Land bearing Survey no. 73/1 of Village: Tragad,
Ahmedabad, purchased by the Appellant by registered sale deed dated 23/12/1992.
(F) Land bearing Survey no. 75/2 of Village: Tragad, Ahmedabad.
2. That by mutual consent under compromise both the parties have resolved the dispute and have decided that the properties mentioned as (A), (B), (C), (D) in the first paragraph above shall be retained by way of ownership with all rights and title by the respondents and the appellant shall retain by way of ownership properties mentioned as (E) and (F) will all the rights, title and interest in the respective properties.
3. It is further agreed and compromised between the parties that the appellant shall not claim any right, title or interest in respect of the properties mentioned above as (A), (B), (C) & (D) and in the same way the respondents shall not claim any right, title or interest in respect of properties mentioned as (E) & (F).
4. It is further agreed and compromised between the parties that the respective parties shall co-operate to each other by giving their signatures, declarations and consent, wherever it is required in the revenue record or in the title document for giving effect to this compromise and consent term for transferring and mutating the names of respective parties in the office of sub-registrar, revenue record, municipal record and at all places, wherever it is required and requested by either parties, and the expenses of stamp duty or any other charges are to be paid by the respective parties for transferring/mutating respective properties in their name.
5. That with a view to give effect to the compromise between the parties under the present consent terms, the parties are hereby agreed for partly allowing the Appeal by modifying the impugned order dated 09/09/2009 to the effect that the will dated 16/12/1970 and the order dated 09/09/2009 for issue of probate on the said will is to be considered for all the properties mentioned in the will dated- 16/12/1970 except land survey no. 75/2 and 73/1 of Page 7 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 Village Tragad, Ahmedabad."
15. As set-out in the consent terms, the properties mentioned at (A),(B),(C),(D),(E) and (F) were subject matter of two separate Wills dated 05.06.1970 and 16.12.1970 of Kankubai Wd/o Ranaji Bhagaji. As per the consent terms, it was agreed that the properties mentioned as (A) to (D) shall be retained by way of ownership, with all rights and titles, by the respondents therein i.e. the legal representatives. What was agreed to be retained by the petitioner, by way of ownership, were/are properties mentioned as (E) and (F) with all rights, title and interest, in the respective properties. Relevant would be covenant 4, which provides that the parties have agreed to extend cooperation with each other, by putting their signatures, declarations and consent wherever required in the revenue record or in the title documents with a view to giving effect to the compromise and the consent terms for transferring and mutating the names of the respective parties in the documents with the office of the sub-registrar, revenue record, municipal record and wherever required and requested by either of the parties, etc. Clause 5 of the consent terms clearly recorded that the parties to the consent terms agree for partly allowing the appeal by modifying the judgment dated 09.09.2009 (Exh. 99), to the effect that the Will dated 16.12.1970 and judgment dated 09.09.2009 for issue of the probate on the said Will, be considered for all properties mentioned in the Will dated 16.12.1970 except the land bearing survey no. 73/1 and the land in question.
16. On the basis of the consent terms, this Court disposed of the First Appeal no. 3845 of 2009 vide order dated 14.10.2019 directing decree to be drawn in terms of the consent terms. Accordingly, decree also came to be drawn. Therefore, so far as the land in question is concerned, it has been agreed amongst the parties that it will come in favour of the petitioner with all rights, Page 8 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 title and interest. On the basis of the said consent terms, the petitioner applied for mutation of entry; however, the Mamlatdar Ghatlodia, though entered the name of the petitioner in the revenue record but, in the column of other rights. The concern of the petitioner is in the right earnest that when the decree has been drawn in terms of the consent terms, according to which, the parties agreed for retention of the respective properties and the land in question having come in favour of the petitioner, name of the petitioner could not have been posted in the column of other rights.
17. Pertinently, after obtaining probate, which was granted in favour of the petitioner, vide order dated 20.12.2005, the petitioner applied for mutation of entry and entry no. 2582 was posted in the revenue record followed by the certification and confirmed by the Deputy Collector vide order dated 20.07.2007. Though the revision filed before the Collector was allowed, but the Collector had observed that the order, that may be passed in the Civil Misc application no. 85 of 2006, shall be binding to the parties. Similarly, the learned Secretary in the revision application, had observed that the jurisdiction of the revenue authorities is only with respect to the entries, therefore, the order that may be passed by the High Court shall be binding to the parties.
18. As aforesaid, on the basis of the consent terms, this Court disposed of the First Appeal no. 3845 of 2009 accepting the consent terms and decree was directed to be drawn in accordance with the terms of the settlement. Therefore, it is clear that the parties, have agreed for an understanding that properties mentioned from (A) to (D) shall be retained by the legal representatives whereas, the properties mentioned as (E) and (F), shall come to the petitioner. When the revenue authorities vide two orders namely order dated 20.10.2008 of the Collector and 30.11.2016 of the learned Secretary, have made mutation of entry Page 9 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022 C/SCA/15741/2021 ORDER DATED: 27/07/2022 subject to the outcome of the civil proceedings and the consent terms having arrived at between the parties, it is difficult to fathom as to how the Mamlatdar, had entered the name of the petitioner in the column of other rights.
19. In view of the above, ends of justice would meet if the matter is remitted to the Mamlatdar with a direction to post the entry in the revenue record in terms of the present judgment after hearing the concerned parties and strictly in accordance with law.
20. Rule is made absolute to the aforesaid extent. No order as to costs.
(SANGEETA K. VISHEN,J) SINDHU NAIR Page 10 of 10 Downloaded on : Sat Dec 24 22:07:06 IST 2022