Gujarat High Court
Somaji Maganji Thakore vs Kantiji Bhalaji Thakore on 8 March, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18273 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN 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 ? Yes
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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SOMAJI MAGANJI THAKORE
Versus
KANTIJI BHALAJI THAKORE & 4 other(s)
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Appearance:
POOJA H BHARDWAJ(7844) for the Petitioner(s) No. 1
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 5
JITENDRAKUMAR G JANI(9519) for the Respondent(s) No. 1,2,3.1,4
MR HARNISH V DARJI(3705) for the Respondent(s) No. 1,2,3.1,4
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 08/03/2022
ORAL JUDGMENT
Issue Rule, returnable forthwith. Ms Asmita Patel, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent no.5 and Mr Harnish V. Darji, learned advocate waives service of notice of Rule on behalf of private respondents.
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2. By this petition, under Article 226 and 227 of the Constitution of India, the petitioner challenges the order dated 16.8.2017 passed in revision application no.MAVIVI/HAKAPA/AMD/203/2015 passed by the Special Secretary, Revenue Department (Appeals) (hereinafter referred to as the "SSRD").
3. The facts in nutshell are that the land bearing survey no.809 admeasuring 8 acres, situated at Vejalpur, District Ahmedabad (hereinafter referred to as the "land in question") was running in the name of one Bhalaji Sadaji Thakore in the revenue record and in the partition amongst family members, land bearing survey no.809/1 admeasuring 3642 sq. meters, out of total 5866 sq. meters came to the share of the petitioner and entry no.7590 dated 23.10.1997 was posted in the revenue record, followed by certification on 25.11.1997; after recording statements and drawing panchnama and in conformity with the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as "the Code").
3.1 According to the petitioner, since then, the petitioner is in possession of the said land and after almost 16 years, entry no.7590 dated 23.10.1997 came to be challenged by the respondent nos.1 to 3.1 and 4 (hereinafter referred to as the "private respondents") before the Deputy Collector which, came to be rejected on the ground of delay. The appeal preferred by the private respondents before the Collector also came to be rejected vide order dated 5.9.2017 and thereby, the order of the Deputy Collector, dated 24.7.2014, stood confirmed. Being aggrieved, the private respondents, have preferred a revision before the SSRD which, came to be allowed by order dated 16.8.2017. Hence, the present petition with the aforementioned prayers.
4. After issuance of the notice, the private respondents have filed the reply. It has been averred that the claim of the petitioner, being a family members of late Bhalaji Sadaji Thakore, is misconceived inasmuch as, the petitioner is no where related to Page 2 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 Bhalaji Sadaji Thakore. It has also been averred that the name of Bhalaji Sadaji Thakore was posted in the revenue record with respect to land bearing survey nos.805, 809, 831 of village Vejalpur which entry was mutated, as late Shri Bhalaji Sadaji Thakore was occupying the land. Necessary entry no.314 was posted in the revenue record on 8.2.1956 and therefore, the land bearing survey no.805, 809, 831, according to the private respondents, is not a family property but a self acquired property of Shri Bhalaji Sadaji Thakore and therefore, there arises no question of partition amongst the family members. It has been further averred that it is incorrect on the part of the petitioner to claim that the land has come in favour of the petitioner as a result of the partition amongst the family members inasmuch as, the petitioner is not a family member of deceased Bhalaji Sadaji Thakore.
4.1 It is the case of the private respondents that Bhalaji Sadaji Thakore had executed a sale deed in the year 1971 for land admeasuring 11132 sq. meters in favour of Mangaji Bhalaji and Babaji Bhalaji by executing the registered sale deed and entry no.2291, was mutated in the revenue record followed by certification. Subsequently, the name of the legal heirs of Maganji namely Gulaji, Jasaji, Kalaji and Somaji Maganji came to be entered in the revenue record, somewhere in the year 2004. According to the private respondents, instead of Mangaji Bhalaji inadvertently it has been mentioned as Maganji Bhalaji. The name of the petitioner came to be entered in the revenue record as the legal heir of Maganji Bhalaji as occupier of the land. It is also the stand that the petitioner's name came to be entered for the first time. Therefore, the petitioner, is the legal heir of deceased Mangaji Bhalaji Thakore and is no where related to the private respondents.
4.2 It is also averred that the entry no.7590 has been posted in the revenue record on the basis of pedigree, statements and as a result whereof the entry came to be certified recording that the petitioner is agriculturist; however, there is not a whisper or Page 3 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 document available to buttress that the petitioner is an agriculturist. It is further stated that while mutating the entry no.7590 and certifying the same, relevant documents have not been considered and therefore, posting of the entry no.7590 is without any proper documents. Reference has been made of notices issued to the petitioner by the private respondents and reply of the petitioner. It has been averred that the notices, were with respect to the registration of the sale deed for the land in question and for specific performance of the contract dated 14.3.1980. Allegation is also made that the petitioner has deliberately not produced the plaint of Regular Civil Suit No.609 of 2014 so also the written statement. It has been stated that in the written statement, the stand taken by the petitioner, is that he had purchased the land by executing an agreement to sell by paying the sale consideration to the deceased Bhalaji Sadaji Thakore. It is also the stand of the petitioner that sale deed could not be registered as per the conditions; however, no steps have been taken till the filing of the suit and a false plea has been raised by the petitioner only with a view to getting the favourable orders. While adverting to the aspect of family partition, it is urged that the claim is false and fabricated inasmuch as, the petitioner has not been able to show that there has been a family partition or family arrangement having been arrived at between the parties. Reference has been made of filing of the complaint before the Special Investigation Team (land), Ahmedabad. While justifying the delay in challenging the entry no.7590, it is stated that the challenge has been made at the earliest available occasion and there is no delay. So far as the allegation as regards knowledge is concerned, the same has been denied. It has been stated that private respondents came to know about the factum of entry no.7590 in the year 2012, it is only thereafter that the proceedings were initiated challenging the said entry. It has also been denied that private respondents have remained silent for 16 years. It is Page 4 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 therefore urged that the petition be dismissed and order dated 16.8.2017 does not warrant interference.
4.3 Rejoinder has also been filed by the petitioner denying the factual aspects as averred by the private respondents. It has been stated that factum of Regular Civil Suit No.609 of 2014 is very much mentioned in the writ petition and that there is no suppression on the part of the petitioner. While further elaborating, it is stated that the order dated 9.2.2016 passed below Exhibit 5 has also been placed on record. It is also the stand of the petitioner that perusal of the order below Exhibit 5 clearly suggests that both the revenue entry and agreement to sell, have been taken note of by the civil court while passing the order, wherein it has been specifically observed that the petitioner is in possession of the said land. Rejoinder further states that there is a total silence on the part of the private respondents justifying the delay for the period from 1997 to 2013. The entry has been posted in the revenue record in the year 1997 and since then, the petitioner is in uninterrupted peaceful use, occupation and possession. It is also stated that the petitioner is very much an agriculturist, which aspect is substantiated by documents in the form of Village Form no.7/12 of the year 1972 of the land bearing survey no.566/3 of Village Vejalpur. It is urged that entry no.7590 has been entered in the revenue record after following due procedure and it requires to be sustained and the order passed by the SSRD be quashed and set aside.
5. Mr Shirish S. Sanjanwala, learned senior counsel appearing with Ms Kalpana Brahmbhatt, learned advocate for the petitioner, while adverting to the merits, submitted that challenge to the entry, was not maintainable in law and in equity inasmuch as, the said entry no.7590 dated 23.10.1997, has been posted owing to the application given by Bhalaji Sadaji Thakore himself and the said entry has been effected because of the family partition which took Page 5 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 place between three brothers and land bearing survey no.809 admeasuring 3642 sq. meters came to the share of the petitioner. It is further submitted that out of land of survey no.809 admeasuring 3 acres and 4 gunthas, land admeasuring 3642 sq. meters has been given to the son of the uncle i.e. petitioner i.e. Somaji Maganji Thakore and therefore, his name be deleted and the name of the petitioner be entered. Pursuant to the statement and further statements made by other co-owners, the entry no.7590 has been posted in the revenue record. Bhalaji Sadaji Thakore himself had given an application for mutation and cannot challenge the same after a period of 16 years. It is further submitted that requisite notice under Section 135D of the Code was issued and served upon all the heirs, indicated in the pedigree. As per the pedigree, Bhalaji Sadaji Thakore is the heir of Khemaji and the petitioner is heir of Mangaji and therefore, on the basis of the documents, entry was posted. It is therefore submitted that on merits also, Bhalaji Sadaji Thakore or his heirs have no case.
5.1 It is further submitted that Bhalaji Sadaji Thakore was served with notice under section 135D of the Code which fact, is strengthened by the endorsement "notice issued" in column 4. The statement of Bhalaji Sadaji Thakore was recorded before the Talati wherein, it has been stated that the land is an ancestral land and out of which, 3642 sq. meters, has come in the share of the son of his uncle and therefore, his name may be deleted. It is submitted that similarly, the statement of the petitioner was also recorded wherein, it has been stated that the land is running in the name of Bhalaji Sadaji Thakore; however, owing to the partition amongst the brothers, land admeasuring 3642 sq. meters has come to his share and accordingly, his name was mutated in the revenue record. It is therefore submitted that it was only after following the due procedure as required under section 135D of the Code that entry no.7590, was mutated on 23.10.1997 and certified on 25.11.1997.
Page 6 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 5.2 It is further submitted that after the partition, Bhalaji Sadaji
Thakore was left with 8904 sq. meters of land of survey no.809p. and immediately within 2 months, names of the heirs of Bhalaji Sadaji Thakore i.e. private respondents have been entered as co- owners along with Bhalaji Sadaji Thakore vide entry no.7609 dated 10.12.1997. On 26.2.1998, Bhalaji Sadaji Thakore expired and therefore, his name came to be deleted vide entry no.7693 dated 6.2.1998. It is submitted that thereafter in the year 2003, the private respondents sold another 2224 sq. meters of land out of total 8904 sq. meters of land by registered sale deed dated 14.4.2003 in favour of one Krutarth Kiritkumar and consequential entry no.8942 dated 17.5.2003 was posted in the revenue record.
5.3 It is submitted that entry no.7590, came to be challenged before the Deputy Collector who, vide order dated 24.7.2014 confirmed the entry on the basis of the settled law that entry cannot be unsettled after unreasonable time. It is further submitted that the Deputy Collector after due application of mind, has confirmed the order of the Mamlatdar certifying the entry. In appeal, the Collector has also passed an order dated 5.9.2015. The Collector, while following the binding precedent, had come to the conclusion that the entry cannot be challenged after delay of 16 years. That even if the order is void, doctrine of reasonable time and period of limitation prescribed, applies.
5.4 It is submitted that the revision application was filed by the private respondents before the SSRD who, passed the order dated 16.8.2017 without appreciating the fact that challenge to the entry, without any explanation, could not have been entertained. It is submitted that the revision has been allowed by passing an order ex parte. It is submitted that the Collector and the Deputy Collector have dismissed the matter since the challenge was made after long lapse of 16 years by coming to the conclusion that the proceedings are barred by the limitation and once it is held that it is time barred, Page 7 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 the SSRD, could not have gone into the merits of the matter. It is submitted that the observation of SSRD that the order is void; however, it has lost sight of the fact that void order is required to be set aside. The basis adopted by the SSRD that since it is a void order, there is no question of limitation, is erroneous. It is submitted that the principle laid down in the judgments have not been applied and the reasoning that limitation or doctrine of reasonable time would not apply to the void orders, is without jurisdiction and contrary to the settled principle.
5.5 While referring to the Regular Civil Suit No.609 of 2014 filed by the private respondents against the petitioner challenging the agreement to sell, it is submitted that in the said suit filed by the private respondent, the injunction application has been rejected, believing the possession of the petitioner.
5.6 Reliance is placed on the judgment in the case of Pagi Aataji Kacharaji v. State of Gujarat reported in (2011) 2 GLR 1449. It is submitted that this Court, while referring to the judgment in the case of Janardan D. Patel v. State of Gujarat reported in 1995 (1) GLR 50, has held and observed that revenue authorities exercising powers with respect to RTS proceeding are invested with limited powers, they cannot assume to themselves certain powers not conferred on them by law nor can assume jurisdiction not conferred on it by law and in that view of the matter, it has no power to decide the validity of a transaction on the touchstone of a statutory provision occurring in some other enactment. It has also been held that if any such question arises, the matter should be referred to the authority empowered to deal with under the said enactment. In such a situation the correct procedure to be followed would be to refer the matter to the authority empowered under the other Act for its decision. It is submitted that it is well settled proposition of law as enunciated by the Apex Court in the case of Evergreen Apartment Co-op. Housing Society v. Special Secretary, Revenue Department Page 8 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 reported in 1991 (1) GLR 113 that in the proceedings under Rule 108 of the Gujarat Land Revenue Rules, 1972, the revenue authorities cannot independently pass orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not, can be examined by the competent authority under the particular enactment, by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected.
5.7 Further reliance is placed on the judgment in the case of Jitendra Singh v. The State of Madhya Pradesh passed in Special Leave Petition (C) No.13146 of 2021. It is submitted that the settled proposition is reiterated that the mutation entry does not confer any right, title or interest in favour of the person and it is only for the fiscal purpose. If there is any dispute with respect to the title and when it is sought to be made on the basis of Will, the party claiming title/right on the basis of the Will, has to approach the appropriate civil court/court and get his rights crystalised.
5.8 Reliance is also placed on the judgment in the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim reported in (1997) 6 SCC 71. It is submitted that the Apex Court, while referring to the judgment in the case of State of Gujarat v. Jethmal Bhagwandas Shah passed in Special Writ Application No.2770 of 1979, held that power under the provisions of Section 84C, should be exercised within a reasonable time and where no time limit is prescribed for exercise of power under a statute, it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time.
5.9 Reliance is also placed on the judgment in the case of Pune Municipal Corporation v. State of Maharashtra reported in 2007 (3) GLR 2610 for the proposition that if no period of limitation is Page 9 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 prescribed for exercise of powers, it does not mean that the powers can be exercised at any point of time. Reliance is placed on the observations made in paragraphs 26, 27 and 28 to contend that it would be impermissible for the authorities to exercise the revisional jurisdiction at any time; and it has to be within a reasonable period.
5.10 Reliance is also placed on the judgment in the case of Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport reported in AIR 2010 SC 2962. It is submitted that the Apex Court, when found that the revision was filed after expiry of two decades, it observed that revisional powers, cannot be used arbitrarily at belated stage.
5.11 Further reliance is placed on the judgment in the case of Bhanji Devshibhai Luhar v. State of Gujarat reported in 2011 (2) GLR 1676. It is submitted that in the said case, the transaction, was allowed to remain in life for 17 years and after unexplained and unjustified delay of 17 years, the action was taken. This Court, in paragraph 22 has held and observed that the delay of 17 years, is defended on the ground that the action is statutorily void, such defence, is not to be taken into account. Mr.Sanjanwala, learned senior counsel laid emphasis on paragraph 22.2, wherein, while referring to the decision in the case of Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group reported in 2011 (3) SCC 363, it has been held that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void.
5.12 Reliance is also placed on the judgment in the case of Valjibhai Jagjivanbhai v. State of Gujarat reported in 2005 (2) GLR
34. It is submitted that it has been held and observed that when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for Page 10 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 years together, such authority cannot be allowed to exercise the powers conferred upon it at a belated stage. While observing thus, the Division Bench, had held that powers conferred upon the Collector under sub-sections (2) and (3) of section 9 are required to be exercised within a reasonable time.
5.13 Reliance is also placed on the judgment in the case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. reported in 2013(2) GLR 1788 for the proposition that even though void transaction, if it is allowed to remain effective for considerable long period, the authority will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed for a considerable period and by passage, creating valuable rights, in favour of a considerable sections of people, it would be difficult to accept that despite the change, the competent authority under the Act would be entitled to exercise powers.
5.14 Reliance is placed on the oral judgment dated 24.2.2021 in the case of Nirmalaben @ Nilaben Ratnasinh Chauhan W/o. Takhatsinh Dansinh Thakor v. State of Gujarat passed in Special Civil Application No.13092 of 2018. It is submitted that the issue was that the entry was cancelled which was posted on the basis of the registered sale deed executed in favour of the petitioner therein. Objection was raised to the mutation of the entry on the ground that the suit has been instituted by the respondent therein praying for specific performance of the agreement for sale. This Court, while referring to the judgments, held and observed that it is settled legal position that the revenue authorities, are not justified in not certifying the entry only on the basis of the pendency of the civil suit between the parties. This Court, therefore, held that the authorities were not justified in not certifying the entry in favour of the petitioner therein and it ought to have certified with a rider making it subject to the outcome of the suit.
Page 11 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 5.15 Reliance is also placed on the judgment in the case of Kale & others v. Deputy Director of Consolidation reported in AIR 1976 SC
807. The issue before the Apex Court, was as regards necessity of registration of family partition. It has been held that the members who are parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. It has also been held that even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld. The Apex Court, considering various judgments, held and observed that there can be no doubt that even if family settlement was not registered, it would operate as a complete estoppel against the respondents therein and the High Court were not correct in not giving effect to the doctrine of estoppel as spelt out by the Apex Court in various decisions.
5.16 Reliance is also placed on the judgment in the case of Kamala & Ors v. K.T. Eshwara Sa & Ors reported in AIR 2008 SC 3174. Reliance is placed on paragraph 16 wherein, inter alia, it has been held that for the purpose of invoking Order VII, Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall and be the subject matter of an order under the said provision.
5.17 It is submitted by the learned senior counsel for the petitioner that both the Collector and Deputy Collector, have dismissed the matter since the issue was being agitated after a long lapse of 16 years and the authorities concerned, have come to the conclusion that the proceedings are barred by limitation. Once it is held that the proceedings are time barred, there is no question of going into Page 12 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 the merits of the matter. It is also submitted that the SSRD, has committed an error in relying upon the judgments which are no longer a good law in view of the judgment in the case of Bhanji Devshibhai Luhar v. State of Gujarat (supra), wherein, in paragraph 6.3, reference has been made of both the judgments referred to by the SSRD namely judgment in the case of Koli Nagjibhai Varjan v. State of Gujarat reported in 1992 (1) GLR 14 and judgment in the case of Patel Jividas Trikamdas & Ors. v. Collector & Ors. reported in 1996 (2) GLR 688. It is submitted that it has been clearly held that even a void order is required to be set aside and therefore, the sole reasoning of the SSRD that it is a void order and therefore, there arises no question of invoking the limitation or doctrine of reasonable time, is based on overruled judgments. The order of the SSRD, is without jurisdiction and contrary to the settled principle and it committed an error in entering into the merits and the question of title, which otherwise, was not within the scope and purview of the SSRD in the RTS proceeding. It is therefore urged that the order of the SSRD be quashed and set aside and the order dated 5.9.2015 passed by the Collector and order dated 24.7.2014 passed by the Deputy Collector, be confirmed.
6. On the other hand, Ms Asmita Patel, learned Assistant Government Pleader submitted that the Deputy Collector and Collector, have rejected the revision application. SSRD allowed the revision on the ground that the entry was null and void. It is submitted that it is clear from the record that Bhalaji Sadaji Thakore, was the sole owner and the petitioner taking advantage of the so called partition got the entry no.7590 mutated in the revenue record. When the order itself is null and void, the delay will not come in the way and therefore, SSRD rightly entertained the revision filed by the private respondents. The said aspect, is clearly observed in the order and therefore, the order is just and proper. Considering the facts of the case, Bhalaji Sadaji Thakore was the only owner and the transaction being void, no limitation can apply Page 13 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 and no error can be said to have been committed by SSRD in passing the order dated 16.8.2017. It is urged that the petition does not require to be entertained.
7. Mr Shalin Mehta, learned senior counsel appearing with Mr Harnish Darji, learned advocate for the private respondents took this Court to the compilation of the writ petition. While referring to the entry no.314, submitted that Bhalaji Sadaji Thakore, since was paying revenue, his name was entered as an occupant with respect to survey nos.805, 809, 831 and hence, the land, was self acquired property of Bhalaji Sadaji Thakore. It is submitted that even the 7/12 forms from the year 1956 onwards indicate the entry no.314 showing the name of Bhalaji Sadaji Thakore with respect to the land in question, and the said position, continued from time to time. It is submitted that entry no.7590 dated 23.10.1997, came to be posted as nephew, receiving 3642 sq. meters of land as per the partition. It is submitted that the petitioner is relying upon the declaration dated 22.10.1997 of the Bhalaji Sadaji Thakore; however, no such declaration has been given by him. It is submitted that the said declaration cannot be believed as, it states that the land is ancestral land. Such declaration, is against the contents of the entry no.314 recorded in favour of the Bhalaji Sadaji Thakore. Clearly, it is the self acquired property of Bhalaji Sadaji Thakore and if the property, is self acquired, such declaration raises a strong suspicion.
7.1 It is further submitted that the notice purported to be issued under Section 135D, is bereft of any details. It does not show to whom it was served and when it was served. Since, there was no notice issued, the respondent did not appear, it is only on the basis of the statement of Somaji Maganji i.e. the petitioner dated 22.10.1997 that the entry No.7590 is certified on 25.11.1997. It is recorded that entry no.7590, has been mutated on the basis of the notice under Section 135D, statements and panchanama; however, there is not a semblance of evidence that the notice has been Page 14 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 served to the land owners. There is no thumb impression of deceased Bhalaji Sadaji Thakore on any of the documents. Also, there is no acquisition or transfer of any right of the land in question in favour of the petitioner and therefore, also the mutation of entry no.7590 is illegal, unjust and contrary to Section 135C and 135D of the Code.
7.2 It is also submitted that after 25.11.1997, entry no.7609 was posted in the revenue record with respect to the land in question as Bhalaji Sadaji Thakore, wanted to make others as co-owners. It is submitted that after the death of Bhalaji Sadaji Thakore on 26.2.1998, his name, came to be deleted and the names of his heirs, continued. It is therefore submitted that the theory propounded by the petitioner that the petitioner was related to Bhalaji Sadaji Thakore, is imaginary and a falsehood. It is submitted that Bhalaji Sadaji Thakore was the only son of deceased Sadaji Selaji Thakore. Whereas, entry no.7590, has been posted on the basis of pedigree and familiarity of deceased Raijiji Thakore. Deceased Bhalaji Sadaji Thakore is no where related to deceased Raijiji Thakore's family and consequentially the petitioner. The petitioner has no relation with Bhalaji Sadaji Thakore of whatsoever nature much less, in the nature of uncle and nephew. It, therefore, clearly establishes that entry no.7590 is based on incorrect documents as well as wrong facts. It is submitted that if the petitioner was not related to Bhalaji Sadaji Thakore, there arises no question of any family partition amongst the family members and more particularly, for the self acquired land of Bhalaji Sadaji Thakore. It is submitted that the claim of the petitioner that he has received the portion of the land of Survey No.809, by way of family partition, is totally false and fabricated claim inasmuch as, there are no documents to support such claim. The petitioner is wrongly and falsely claiming himself to be a family member of Bhalaji Sadaji Thakore and as a result whereof, a complaint, has also been filed with the Special Investigation Team (land), Ahmedabad.
Page 15 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 7.3 It is further submitted that till date neither any registered sale
deed, is executed, on the basis of agreement to sell with respect to the land in question, nor any suit for specific performance has been filed by the petitioner. It is submitted that the private respondents, have filed the Regular Civil Suit No.609 of 2014 against the petitioner seeking declaration that the alleged agreement to sell dated 14.3.1980 is false, null and void, illegal together with the application for permanent injunction. The petitioner had appeared and filed written statement stating that Bhalaji Sadaji Thakore had accepted the sale consideration in connection with the land in question wherein, he has also declared that he has nothing to do with the legal heirs of Bhalaji Sadaji Thakore.
7.4 It is submitted that the petitioner has propounded two theories namely; execution of the agreement to sell and partition. The theories, do not inspire confidence. It is submitted that the Banakhat, was executed in the year 1980 which, has never seen the light of day. The claim of the petitioner over the right in the land in question, is only on the basis of the so called partition. Reliance placed on the familiarity of the Raijiji Thakore, is also misplaced inasmuch as, as per the entry no.314, it clearly reveals that the respondent Bhalaji Sadaji Thakore, was the sole owner of the lands mentioned therein including the land in question. While referring to the pedigree (page 88), it is submitted that if at all one is to go by the pedigree, the petitioner and Bhalaji Sadaji Thakore were not brothers but were cousins and therefore, the reference of partition amongst brothers is incorrect.
7.5 Reliance is placed on the judgment in the case of Ravinder Kaur Grewal v. Manjit Kaur reported in (2020) 9 SCC 706. It is submitted that Section 17 of the Registration Act, provides for compulsory registration of the documents as enumerated in various clauses of sub-section (1) of section 17. It is therefore, submitted that the Act recognizes only registered document and in the present Page 16 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 case, the family partition, being not registered, the petitioner cannot claim any relief.
7.6 It is submitted that the reliance placed on the judgments in the cases of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim (supra); Pune Municipal Corporation v. State of Maharashtra (supra); Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport (supra); Bhanji Devshibhai Luhar v. State of Gujarat (supra) is misplaced. The said judgments deal with suo motu exercise of revisional powers by the authorities. It is submitted that the respondents have far superior case except the aspect of delay of 16 years. Eventhough, there is no partition deed, no registration and no document, entry has taken place. In the case of Jitendra Singh v. The State of Madhya Pradesh (supra), it has been categorically held that the party who is claiming title right on the basis of the Will, has to approach the appropriate civil court/court to get his rights crystalised and only thereafter, on the basis of the decision by the civil court necessary entry can be made. It is submitted that the word "Will" has to be read as partition deed and therefore, applying the said principle to the facts of the present case, the petitioner, if is claiming title or right on the basis of the so called partition, has to approach the appropriate civil court and get his rights crystalised and only thereafter, necessary entries can be made. It is submitted that so far as the judgments relied upon in the cases of Gandabhai Dalpatbhai Patel v. State Of Gujarat reported in (2005) 2 GLR 1370; Nirmalaben @ Nilaben Ratnasinh Chauhan W/o. Takhatsinh Dansinh Thakor v. State of Gujarat (supra); Pagi Aataji Kacharaji v. State of Gujarat (supra) also cannot be made applicable to the facts of the present case.
7.7 It is also submitted that the contention of the petitioner that the impugned order is ex parte, is also misconceived for, the notice was issued to the petitioner to remain present; however, if the petitioner did not choose to remain present, it cannot be said that Page 17 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 the proceedings are ex parte. It is submitted that the order clearly records that the petitioner was represented through his advocate and had made his submissions and therefore, to say that the proceeding is ex parte is fallacious. It is also submitted that the claim of the petitioner that the entry has been posted after following the procedure under Section 135D of the Code also, does not support the case considering the fact that there is nothing to show that the notice was served upon the respondents. Furthermore, the entry is certified only on the basis of the statement of Bhalaji Sadaji Thakore. So far as the present case is concerned, as per the provisions of Section 135C exemption is only for the registered document; however, in the present case no registered documents much less any document has been produced and therefore, reporting is must so also the notice to the respondents. In absence of any notice to the respondents, it cannot be said that necessary procedure, was followed before mutating the entry no.7590 in the name of the petitioner.
7.8 While dealing with the contention of the petitioner that the suit filed by the respondents has been dismissed; it is submitted that assuming that the petitioner is right in raising such contention, consequences of the dismissal of the suit would not make the petitioner, owner. The petitioner, as argued earlier, was obliged to file a suit for specific performance of the agreement to sell inasmuch as, Section 54 of the Act of 1882, defines "sale" to mean transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. It is submitted that such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
7.9 While adverting to the aspect of delay of 16 years, it is submitted that it is true that there is a delay; however, the judgments are clearly distinguishable and they do not apply for, the Page 18 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 present is not a case of violation but, it is a case of no ownership. For claiming ownership of a land, for which, there has to be documents and only on the basis of so called partition, no ownership can be claimed. It is also submitted that in the peculiar facts of the case, 6 month's delay can be considered to be a gross delay and 16 years delay, may not be. It is not an universal principle that if there is a delay of 16 years, it cannot be condoned. The delay of 16 years should be overlooked considering the facts and more particularly, examining the documents as the property belonged to Bhalaji Sadaji Thakore by virtue of the entry posted in the year 1956 and merely because of the lapse, the petitioner cannot become the owner. It is also not the case of the petitioner of the adverse possession. After the entry no.7590, there were other two entries nos. 7609 and 7693 mutating the heirship and deleting the name of Bhalaji Sadaji Thakore; however, the said two entries have not been challenged by the petitioner. The observations of the SSRD that if the order is void, the limitation does not apply, is just and proper and no error can be said to have been committed by the SSRD. It is, therefore, urged that the challenge to the order does not deserve to be entertained and the petition be dismissed.
7.10 Reliance is placed on the judgment in the case of Popatkhima Ramani v. Collector reported in 2002 (2) GHJ 985. Reliance is also placed on the judgment in the case of Jiviben Wd/o. Kalaji Bapuji v. State of Gujarat reported in 1998 (2) GLH 556. Emphasis is laid on paragraphs 4, 8 and 9. It is submitted that it has been held and observed that if the transaction is found to be void being in violation of the provisions of the Act, the purchaser cannot defend such void transaction on the ground of lapse of a number of years. It is submitted that it would be impermissible for a person to take advantage of his own fraud or suppression of material facts and it would be impermissible for him to complain against the authorities taking action after a long period, if such, fraud or suppression comes to the notice of the authorities after a long lapse of time. It has been Page 19 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 held and observed that where no time is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time and such power has to be exercised within a reasonable time; however, what is reasonable time would, of course, depend upon the facts and circumstances of each case. It is therefore submitted that the whole case of the petitioner is on the basis of the partition; however, no document has been produced on the record. It is therefore urged that the order passed by the SSRD is legal, just and proper and does not deserve to be interfered with.
8. Mr Shirish S. Sanjanwala, learned senior counsel in rejoinder submitted that the distinction drawn of the exercise of powers on suo motu and/or on application is misconceived considering the fact that irrespective of exercise of powers, suo moto or on application, the doctrine of reasonable period applies. Even assuming that it does not apply, limitation will definitely apply. The Deputy Collector while exercising the powers under the Limitation Act, observed that there is a delay and therefore, rightly rejected the appeal. So also the Collector and therefore, when the Deputy Collector and the Collector rejected the revision application/appeal on the ground of limitation, the question would, whether the SSRD could have gone into the merits of the matter and held that the entry is void ab initio. It is also submitted that it is well settled proposition of law that in RTS proceedings question of title cannot be determined. It has also been observed about the petitioner being a khedut khatedar or not. It further observes that such transactions are subject to payment of stamp duty and therefore, the entry no.7590 is illegal since inception and therefore, deserves to be cancelled. It is submitted that such observation by the SSRD, is illegal and against the well settled proposition of law.
8.1 It is also submitted that the contention of the private respondents that petitioner should file a suit for claiming his right, is Page 20 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 also, fallacious. The fact remains that the suit was filed by the private respondents wherein, the agreement to sell, was challenged, with further declaration that the respondents are occupants. The suit has been dismissed and therefore, consequences are to follow. It is submitted that the contention that the family arrangement should have been the registered document is also incorrect inasmuch as, family arrangement is not required to be registered. Reliance is placed on the Circular dated 5.4.1983, which exempts the family arrangement to be registered. It is therefore submitted that the respondents having pocketed the money and taking the advantage of the rise of the price of the land, have raised the objection to the mutation of the entry, which conduct should be deprecated. It is also submitted that the case of the petitioner, is governed by the judgments of this Hon'ble Court as well as Supreme Court. Fact that the SSRD could not have gone into the question of title etc. it committed an error and the order is without jurisdiction and hence deserves to be quashed and set aside. Family partition, has not been challenged and what is challenged is entry no.7590 and therefore, in equity and in law, the case favours the petitioner and not the private respondents.
8.2 It is further submitted that agreement to sell, was executed in the year 1980; however, thereafter there was a family partition which is clear from the entry no.7590 dated 23.10.1997. It is submitted that the requirement, is that the family settlement should be a bona fide one, even if it is oral and that there is no requirement of family arrangement being registered. The said issue stands answered by the judgment in the case of Kale & Others v. Deputy Director of Consolidation & Others (supra). It is submitted that in paragraph 38, it has been held and observed that the family arrangement being oral arrangement and the mutation petition was filed only for the purpose of information and for mutation, the document was not required to be registered. The Court further Page 21 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 observed that the settlement consisted of recognition of the right asserted by each other and therefore, none of the parties could be permitted to impeach it thereafter. While reiterating, it is submitted that the respondents, have sold the properties and when the price of the land has been increased, the respondents want to raise the objection and such an attempt on the part of respondents is nothing but a dishonest attempt.
9. Heard the learned advocates appearing for the respective parties and considered the documents available on the record.
10. The controversy, revolves around the land in question, running in the name of Bhalaji Sadaji Thakore at the relevant point of time. Somewhere in the year 1997, partition took place amongst the family members and land admeasuring 3642 sq. meters (4356 sq. yards) of survey no.809/1 came to the share of the petitioner. Accordingly, after recording the statements, drawing panchanama, in compliance with the provisions of the Code and Rules framed thereunder, entry no.7590 dated 23.10.1997 was posted and was certified on 25.11.1997. The petitioner is aggrieved by the challenge to entry no.7590 dated 23.10.1997, after a period of 16 years. The said entry was challenged by the private respondents before the Deputy Collector who, rejected the same on the ground of limitation. The order of the Deputy Collector was unsuccessfully challenged before the Collector. The SSRD, allowed the revision and quashed and set aside the orders of the Deputy Collector and Collector.
11. Before examining the order of the SSRD, certain facts are worth referring to. The learned advocates appearing for the respective parties have submitted the details of the land in question which has been sold from time to time in favour of the various parties. The details whereof are as below:
Page 22 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 Survey No.809 Village Vejalpur District Ahmedabad Sr. Area Particulars Entry No. No.
1. 32,375 sq. metrs. Total land (8.0001 acres)
2. 9307 sq. mtrs. Sold to Mangaji Bhalaji & (11,132 sq. yards) Babaji Bhalaji
3. 10,522 sq. mtrs. Sold to Jugaji Babaji (2 Acres 24 Gunthas)
4. 3642 sq. mtrs. Partition in Share of Somaji 7590 (23/10/97) Maganji
5. 8904 sq. mtrs. Left with Bhalaji Sadaji
6. 8904 sq. mtrs. Bhalaji Sadaji & Names of 7609 (10/12/97) Co-owners added
(i)Champaben w/o Bhalaji
(ii)Gabaji s/o Bhalaji
(iii)Jasaji s/o Bhalaji
(iv)Kalaji s/o Bhalaji
7. 8904 sq. mtrs. Bhalaji Sadaji expired on 7693 (06/04/98) 26/2/98 therefore his name Deleted and names of heirs (co-owners) remained.
8. 6680 sq. mtrs. Sold to Gayatri Krupa 8038 (12/8/99) Society
9. 2224 sq. mtr. Sold 2224 sq. mtr. to 8942 (17/5/2003) Krutarth Kiritkumar
12. From the aforesaid tabular form, it is discernible that the land, initially, was admeasuring 32375 sq. meters i.e. 8.0001 acres. Thereafter, out of 32375 sq. meters, 9307 sq. meters came to be sold to Mangaji Bhalaji and Babaji Bhalaji and thereafter, further 10522 sq. meters, came to be sold in favour of Jugaji Bavaji. The present transaction in question, was made in favour of the petitioner and that is how 3642 sq. meters came to be partitioned/sold in Page 23 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 favour of the petitioner and of which entry no.7590 was recorded on 23.10.1997. Thereafter, the land in question was left with 8904 sq. meters and accordingly, entry no.7609 dated 10.12.1997 came to be posted in the revenue record recording the names of the heirs as co-owners along with the name of Bhalaji Sadaji Thakore. Bhalaji Sadaji Thakore passed away on 26.2.1998 and therefore, his name came to be deleted and the names of co-owners continued. Out of 8904 sq. meters, 6680 sq. meters was sold to Gayatri Krupa Society and 2224 sq. meters was sold to Krutarth Kiritkumar.
13. Pertinently, 3642 sq. meters of land was partitioned and/or sold in favour of the petitioner; however, Bhalaji Sadaji Thakore during his life time i.e. till the year 1998, has neither challenged the said transaction nor raised any grievance against it, much less the entry. After the death of Bhalaji Sadaji Thakore in the year 1998, subsequent transactions had taken place. It was only in the year 2013, that the private respondents, had challenged the entry no.7590 before the Prant Officer by way of RTS Appeal No.250 of 2013. The appeal was not forming part of the captioned proceedings; however, with the consent of the learned advocates appearing for the respective parties, the same was directed to be taken on record.
14. The private respondents have set out the reasons for delay in paragraph 6.16 wherein, it has been stated that Bhalaji Sadaji Thakore, passed away on 26.2.1998 and the respondents were semi literate and were not aware about the legal intricacies and therefore, did not focus on the partition which had taken place in the year 1997. But recently in the year 2013 after procuring 7/12 forms, entry no.7590, came to knowledge and therefore, they obtained all the documents on 27.12.2012 and through their advocate have issued notice to the petitioner. Further, after obtaining the certified copy of all the documents, they had filed the appeal. This is how the delay, has been explained by the private Page 24 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 respondents. It was contended before the Deputy Collector that the private respondents were not aware about the entry and when the copies of 7/12 Forms were procured, that the entry no.7590 came to their notice. It has also been pointed out that after the death of the father of the private respondents, the names of the private respondents have been posted in the revenue record as the co- owners and even after the death of the Bhalaji Sadaji Thakore, his name came to be deleted and the names of the private respondents have been shown as owners of the property. The said entry has also been certified and since then, they are in possession of the property. With this limited ground, set out in the application, the prayer was prayed for seeking condonation of delay. However, the Deputy Collector did not accept the explanation offered and rejected the appeal. In the order of the Deputy Collector, it has been recorded that entry no.7590 was posted on 23.10.1997 and was certified on 25.11.1997 whereas the appellants i.e. private respondents had preferred appeal after a delay of almost 16 years and therefore, the same is barred by the limitation.
15. The private respondents, being aggrieved, preferred an appeal before the Collector. The Collector in his order has observed that as the limitation provided under sub-rule (5) of rule 108 is of 60 days and if, the parties are aggrieved by any of the decision taken, an appeal is to be preferred within that period. The Collector, while discussing the proviso to sub-rule (5) of rule 108 has observed that it is open to the appellate authority, after recording its reasons in writing, admit an appeal after the period of sixty days if it is satisfied that the sufficient cause has been furnished by the applicant/appellant for not presenting the appeal within such period. The Collector, then concluded that considering the facts of the case, the applicant/appellant, had preferred an appeal, before the Prant Officer, after a period of 16 years. That the Prant Officer was of the opinion that no sufficient explanation is offered. Hence the Collector was of the opinion that the Deputy Collector has not committed any Page 25 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 error in not entertaining the appeal and therefore, rejected the revision application by passing the order dated 24.7.2014. The Deputy Collector as discussed hereinabove, did not entertain the appeal and rejected the same. So is the position with the order of the Collector. Therefore, if one has to go by the explanation offered by the private respondents, this Court, is of the opinion that no error can be said to have been committed either by the Deputy Collector or by the Collector in not accepting the explanation and rejecting the appeal/revision respectively on the ground of it being barred by limitation.
16. Being aggrieved, the private respondents have preferred revision before the SSRD and it while considering the entry no.314 dated 8.2.1956, has observed that the land, has been given to the Bhalaji Sadaji Thakore as an occupant and is of his ownership. Despite the said fact, the entry no.7590 dated 23.10.1997 has been posted recording the partition in favour of the third party namely the petitioner who is not the heir of Bhalaji Sadaji Thakore. It has also been observed that perusing the documents namely panchnama and other connected record, it suggests that entry, is illegal since inception. Further, the third party Somaji Maganji Thakore whether is a khedut khatedar or not, the said aspect has also not been examined. That such transaction is liable for stamp duty. Only with a view to making a third party an agriculturist, the transaction appears to have been executed, which aspect has not been examined and when any transaction/order is illegal since inception, it is null and void and no limitation applies and the same can be challenged at any point of time.
17. While observing thus, reference is made to the judgment in the case of A. V. Papayya Sastry & Others v. Government of A.P. & Others reported in (2007) 4 SCC 221. Reference is also made to the judgment in the case of Patel Jividas Trikamdas & Ors. v. District Collector, Mehsana & Ors. reported in 1996 (2) GLR 688. Further Page 26 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 reference is made to the judgment in the case of Koli Nagjibhai Varjan v. State of Gujarat & Ors. reported in 1992 (1) GLR 14. It has been observed that it is well settled proposition that if an order is null and void, no limitation, would apply and therefore, the Prant Officer as well as the Collector, have committed an error in rejecting the application on the ground of limitation.
18. SSRD, allowed the revision application and while doing so, as discussed hereinabove, SSRD, has observed that the entry has been certified illegally in favour of third party; however, SSRD, has lost sight of the fact that entries in the revenue record are only for the fiscal purpose and do not confer any right, title or interest in favour of the person concerned. It has been observed that the entry is illegally certified; however, the said observation in the order has not been substantiated as to breach or illegality has been committed of which provisions of the Code. So far as the aspect of petitioner being khedut khatedar is concerned, SSRD, while examining the entry, could not have determined the status of the petitioner as it was not within his jurisdiction to determine the status in RTS proceedings. SSRD, has also observed that the document/transaction is liable for stamp duty; however, when SSRD was exercising the powers under the Code, it was legally impermissible to it to have concluded that the transaction was liable to the payment of stamp duty. If at all, the SSRD, was of the opinion that the transaction is liable for stamp duty, it ought to have referred the matter to the concerned authority but could not, have concluded that the transaction of the partition, is in breach of the provisions of Registration Act.
19. So far as the reliance placed by the SSRD on the judgment in the case of A. V. Papayya Sastry & Others v. Government of A.P. & Others (supra) is concerned, the issue before the Apex Court in the said case was that the State had filed an application for recall, inter alia, on the ground that fraud was committed by the land owners Page 27 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 and the material facts were suppressed by them. It was also alleged that possession of land was never handed over to Port Trust Authorities, nor Port Trust Authorities received such possession of land and yet it was asserted by the owners that possession of land was given to Port Trust Authorities in the year 1972 which was not correct. In the said factual background, the Apex Court, has held and observed that if any judgment or order is obtained by fraud it cannot be said to be a judgment or order in law. It referred to the quotation of Chief Justice Edward Coke "Fraud avoids all judicial acts, ecclesiastical or temporal". It has been also observed that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. So far as the present case is concerned, it is nobody's case that the fraud has been committed by the petitioner while posting the entry no.7590 in the revenue record therefore, reliance placed on the judgment by SSRD, is inapt.
20. Moreover, reference, to the judgment in the case of Patel Jividas Trikamdas & Ors. v. Collector & Ors. (supra), is erroneous. The said judgment was dealing with the proceedings under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as the "Act of 1947"). The transaction, was executed in breach of provisions of Section 9 of the Act of 1947 which was cancelled after a lapse of several years. The said transaction, was subject matter before the Collector and the Collector, had passed the order declaring the transaction as illegal and invalid. This Court, while referring to various judgments of this Court as well as of the Apex Court, held and observed that fragmentation is prohibited under Section 8 of the Act of 1947. It clearly provides that no land in any local area shall be transferred or partitioned so as to create a fragment. The petitioner therein, had Page 28 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 purchased the disputed land, created a fragment of the agricultural land which was prohibited under Section 8 of the Act of 1947. The proceedings, questioning the validity of transaction, were initiated after 20 years. This Court, held and observed that when the transaction was itself illegal and void ab initio, the limitation, would not come to the rescue of the party concerned.
21. In the present case, SSRD, was exercising the powers under the Code and was not determining other issues, namely, the status of the petitioner, he being an agriculturist or not, or that the partition could have been effected by Bhalaji Sadaji Thakore.
22. So far as the reliance on the judgment in the case of Koli Nagjibhai Varjan v. State of Gujarat (supra) is concerned, the same was also with respect to the provisions of Section 9 of the Act of 1947. It was held and observed that the transaction was clearly void in view of the provision of Section 9 of the said Act. It has been also held that the transaction which is void is non est and cannot get life merely because the powers of summary eviction were not exercised immediately. The delay in exercise of powers by the officers cannot validate a transaction which is void ab initio and the Courts ought not to recognize a void transaction even in an indirect way by preventing the authority to exercise its powers consequent upon a void transaction on the ground that the power should have been exercised within reasonable time from the date of transaction. Considering the nature of proceeding before the SSRD, reliance placed on the said judgment is also misplaced.
23. At this stage, the judgment of the Division Bench of this Court in the case of Valjibhai Jagjivanbhai v. State of Gujarat (supra) is worth referring to. In the said case, reference was made by the Division Bench with respect to the question: "Can inordinate delay come in the way of authority acting under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 in declaring Page 29 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 sale transaction to be invalid on the ground of contravention of the relevant provisions contained therein?. Before the Division Bench, the issue was also "whether the transaction which is found to be contrary to the provisions of the Act can be annulled and the possession of the land be restored to its original vendor by the competent authority while exercising the power under Section 9 of the Act or even such power has to be exercised within reasonable period." This Court, considered the aforesaid two judgments namely Patel Jividas Trikamdas & Ors. v. District Collector, Mehsana & Ors. (supra) and Koli Nagjibhai Varjan v. State of Gujarat (supra). In paragraphs 11 and 12, it has been observed thus:
"11. At this juncture it would be worthwhile to refer to certain decisions cited by Mr. Kamal Trivedi, Ld. Addl. Advocate General taking contrary view, which may enable us to make comparative study of both the sets of cases. The first decision relied on by Mr. Trivedi is rendered in the case of State of Orissa v/s. Brundaban Sharma reported in 1995 Suppl. (3) S.C.C. p.249. It is a case under the provisions of Land Acquisition Act and Orissa Estate Abolition Act, 1951. In the said decision it has been observed that non-est order being a void order, it cannot confer any title and its validity can be challenged at any stage. The second decision which has been relied on is in the case of Koli Nagji Varjan v/s. State of Gujarat [supra]. In this decision the learned Single Judge of this Court [ Coram : R K Abichandani, J.] has drawn the distinction between the exercise of power as contained in section 9 and the revisional powers under section 35 of the Act. The learned Judge has held that when the action is void ab initio it cannot be validated by the Court inspite of the fact that there is delay in exercise of powers by the concerned officer. According to the learned Judge, a transaction which is void is non-est and cannot get life merely because the powers of summary eviction were not exercised immediately. According to the learned Judge, the revisional powers, even where no period of limitation is prescribed, has to be exercised within a reasonable time. In the decision rendered in the case of Dhulabhai C. Kotwal v/s. Bhikhabhai K Prajapati reported in 2000 (3) G.L.H. p. 130 another learned Judge of this Court [ Coram : R.R. Tripathi, J.] has held that when the transfer or partition of any land is made contrary to the provisions of the Act, it is void as declared under section 9 (1) of the Act and as a result the Collector has to take further action as prescribed under section 9(2) and (3) of the Act. In yet another case, namely Patel Jividas Trikamdas v/s. District Collector reported in 1996 (2) G.L.R. p. 688 the learned Single Judge of this Court [Coram : J.N. Bhatt, J.] has rendered decision and has held that Page 30 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 sale transaction in respect of land which was a fragment is void and such declaration could be made at any time. According to the learned Judge proceedings to declare the same void initiated even after 20 years of the transaction will not render it invalid. on the ground of mere lapse of time. Similar view has been taken by other learned Judges of this Court [Coram : Miss R M Doshit, J.] in the case of Manilal M Patel v/s. Gelaji Kanaji in Special Civil Application No. 1735 of 1987 dated 16/01/2002, wherein it has been held as under :-
"As regards the time factor, this Court has time and again held that no limitation has been prescribed for taking such transfer in revision. The principle of initiating action within the reasonable time cannot be invoked in case of transfers which are statutorily void. The reference can be had to the judgments of this Court in the matters of KOLI NAGJIBHAI VARJAN v. STATE [1992 (1) GLR 14] and PATEL JIVIDAS TRIKAMDAS & ORS. v. DISTRICT COLLECTOR, MEHSANA & ORS. [1992 (2) GLR 688]. In view of the above referred judgments, the action initiated in the year 1984 with respect to the transfer made in the year 1975 in contravention of the provisions of the Act cannot be invalidated merely on the ground of lapse of a considerably long time."
Another learned Judge of this Court [Coram : D C Srivastava, J. as he then was] in the decision rendered in the case of Saburbhai Hemabhai Chauhan v/s. State of Gujarat reported in 2000 (1) G.L.H. p. 580 has dealt with provisions of section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 and has held that when the sale transaction is found to be void, mere lapse of time would not make the action of authorities invalid. According to the learned Judge, any action, transaction, decision or order which is illegal and void ab initio has to be treated as non-est, validity of such an illegal non-est order could be questioned in any proceedings at any stage by anybody. It creates no right, title or interest nor it confers any status or right.
12. In these decisions the learned Single Judges of this Court did not have an opportunity to consider Apex Court's decision rendered in the case of State of Punjab v/s. Gurdev Singh [supra]. Case of Dhulabhai C Kotwal has been decided on different point, whereas in the case of Saburbhai Hemabhai Chauhan the learned Single Judge has referred to decision of the Apex Court rendered in the case of Mahamad Kavi Mohamad Amin [supra] which is directly on sec. 84-C of the Tenancy Act, but has not explained why different view than the one taken by the Apex Court, has been taken. The Apex Court, as already seen above, has laid down that under section 84-C, the Mamlatdar has to exercise suo-motu power within reasonable time, whereas the learned Single Judge has decided that void order being non-est can be quashed at any time and no amount of delay would come in the way of authority in doing so."
Page 31 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 The Division Bench, after discussing all the judgments so also the provisions of Section 9 of the Act of 1947, held and observed that initiation of proceedings, after such a long time, cannot be permitted and the Collector, committed an error of law in setting aside the transaction on the basis of the application made by respondent therein, who, after having received the full consideration, thought it fit to challenge the said transaction after 17 years. The Division Bench, has further held and observed that "there is no doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it." It has also been observed and held that even the void transaction cannot be said to be non-existent in all cases and in all situations. The Division Bench, had covered two aspects viz; where the rights have been created and also in the cases, where no change is brought. The relevant observations made in para 23, read thus:
"23. Looking to the aforesaid different situations, there is no- doubt in our mind that even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. The ratio laid down by the Apex Court in the decisions cited by Mr. Patel clearly states that even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise power under sub-section (3) of Section 9 of the Act. Similar observations can also be made with regard to the land wherein no change is brought about, but number of years have passed after the transfer against the provisions of the Act has taken place. In our opinion when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. Thus, in our view, when the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon Page 32 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. We, therefore, hold that even powers conferred upon the Collector under sub-sections (2) and (3) of Section 9 are required to be exercised within a reasonable time."
24. The Division Bench has held and observed that when the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. It has also been held that when the authority had considerable opportunities to know about the transaction and yet has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Therefore, the issue that the void orders, if not challenged, can be challenged at any point of time, stands covered by the aforesaid judgment of the Division Bench.
25. Therefore, the reliance placed by the SSRD on all three judgments is erroneous.
26. In the present case, assuming that the mutation of entry no.7590 was not in consonance with the provisions of the Code or in violation of any provisions of the Act, challenge to it after a period of almost 16 years, cannot be said to be a reasonable period. Also, the entry, has been mutated at the instance of Bhalaji Sadaji Thakore after recording his statement on 22.10.1997 wherein, it has been declared that it is the ancestral land and by way of a partition, the land admeasuring 3642 sq. meters had gone in favour of the petitioner. Therefore, when there was a specific declaration by the father of the private respondents, in absence of any challenge to the declaration that the said family partition, is illegal and bad, no fault can be found with the mutation of the entry no.7590 dated Page 33 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 23.10.1997. If at all, the private respondents have any grievance, they would have sought for declaration, the way they had filed the suit seeking declaration against the execution of the agreement to sell dated 14.3.1980 in favour of the petitioner. Though, it was not a subject matter of proceeding either before the Deputy Collector, Collector or SSRD but, the said aspect has been brought on record by way of the replies filed by the respective parties. It has also been brought to the notice of this Court that the said suit filed by the private respondents has been dismissed for default vide order dated 17.12.2019 passed below Exhibit 1.
27. Further, one more aspect, is required to be considered since it is forming part of the documents. The copy of the agreement to sell, has been placed on record by the petitioner. A bare perusal of the said agreement to sell, suggests that thumb impressions have been put by Bhalaji Sadaji Thakore and respondent no.1 - son of Bhalaji Sadaji Thakore. It is further discernible that considerable amount has been received by Bhalaji Sadaji Thakore so also the respondent no.1. As discussed hereinabove, declaration has been sought for against the said agreement to sell by filing a suit. No order was passed and lastly, in the month of December 2019, as aforesaid the same has been dismissed for default and nothing has been brought on record to substantiate that steps have been taken for restoration of the suit. Therefore, the record as it stands, the challenge to the agreement to sell is also been given a go by. Be that as it may. Since the issue in the present writ petition, is confined to the entry no.7590 and hence, as discussed hereinabove, if at all there was any grievance about the partition or the manner of partition, the remedy available to the private respondents, was to seek necessary declaration before the appropriate Court. In absence of any declaration and allowing the entry to remain in currency for almost 16 years, and to challenge the same, without offering any sufficient explanation, this Court is of the view that the Deputy Collector rightly rejected the appeal so also the Collector.
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28. The judgments cited by the learned advocate for the petitioner are worth referring to. In the case of Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim (supra), the Apex Court has held and observed that where no time limit is prescribed for exercise of power under a statute, it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable period. In the case before the Apex Court, transfer took place in the year 1972 followed by suo motu inquiry by Mamlatdar in September 1973. The Apex Court, referred to the judgment in the case of State of Gujarat v. Jethmal Bhagwandas Shah passed in Special Writ Application No.2770 of 1979, wherein it has been held that power under the provisions of Section 84C, should be exercised within a reasonable time. Paragraph 2 of the judgment reads thus:-
"2. Although Mr. Bhasme, Learned Counsel appearing for the Appellant took a stand that under Section 63 of the Act aforesaid, there should not be any discrimination amongst the agriculturists with reference to the State to which such agriculturist belongs. But according tohim even without going into that question the impugned order can be set aside on the ground that suo motu power has not been exercised within a reasonable time. Section 84-C of the Act does not prescribe any time for initiation of the proceeding. But in view of the settled position by several judgments of this Court that wherever a power is vested in a statutory authority without prescribing any time-limit, such power should be exercised within a reasonable time. In the present case the transfer took place as early as in the year 1972 and suo motu enquiry was started by the Mamlatdar in September 1973. If sale deeds are declared to be invalid the Appellant is likely to suffer irreparable injury, because he has made investments after the aforesaid purchase. In this connection, on behalf of the Appellant reliance was placed on a judgment of Justice S.B. Majmudar (as he then was in the High Court of Gujarat) in State of Gujarat v. Jethmal Bhagwandas Shah disposed of on 1-3-1990, where in connection with Section 84-C itself it was said that the power under the aforesaid section should be exercised within a reasonable time. This Court in connection with other statutory provisions, in the case of State of Gujarat v. Patil Raghav Natha and in the case of Ram Chand v. Union of India has impressed that where no time-limit is prescribed for exercise of a power under a statute it does not mean that it can be exercised at any time; such power has to be exercised within a reasonable time. We are satisfied that in the facts and circumstances of the present case, the suo Page 35 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 motu power under Section 84-C of the Act was not exercised by the Mamlatdar within a reasonable time. Accordingly, the appeal is allowed. The impugned orders are set aside. No costs."
29. The judgment in the case of Pune Municipal Corporation v. State of Maharashtra (supra) is also worth referring to. The Apex Court, while dealing with the provisions of Section 34 of the Urban Land (Ceiling & Regulation) Act, 1976, held and observed that although no period of limitation is prescribed, the powers must be exercised within a reasonable time. While adverting to the aspect of null and void order, it has been held that party cannot ignore the order on the ground that it is null and void and such order has to be challenged within a period of limitation where applicable or within a reasonable time where no limitation is prescribed. In the present case, assuming that the entry, was not in consonance or conformity with the provisions of the Code or the respective enactment, the same ought to have been challenged within a reasonable time.
30. Mr Shalin Mehta, learned senior counsel has laid emphasis on the observation made in paragraph 30 of the judgment in the case of Pune Municipal Corporation v. State of Maharashtra (supra) to contend that it is not a universal rule that in each and every case, the proposition of limitation would apply. It is submitted that the length of reasonable time would always depends upon the facts and circumstances of each case and no rule of universal application can be laid down. There is no quarrel to the said proposition; however, in the facts of the present case, where no fraud or suppression of material facts is alleged and in absence of sufficient explanation offered by the private respondents, seeking condonation of delay this Court is of the opinion that the action ought to have been challenged within a reasonable time and 16 years, in the facts of the present case, cannot be said to be reasonable period.
31. Reliance on the judgment in the case of Smt. Sulochana Chandrakant Galande v. Pune Municipal Transport (supra) is also Page 36 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 worth referring to. The Apex Court, has held and observed that any revision beyond the reasonable period, cannot be allowed to be entertained inasmuch as, revisional powers cannot be used arbitrarily at belated stage.
32. Similar is the proposition laid down by this Court in the case of Bhanji Devshibhai Luhar v. State of Gujarat (supra). In the case before the Division Bench, proceedings were initiated with the delay of 17 years and which, has remain unexplained and unjustified and it being defended on the ground that the transfer is statutorily void. Reference has been made to the observation by the Larger Bench in the case of Shailesh Jadavji Varia v. Sub-Registrar, Narmada Bhavan & Ors. wherein, it has been observed that "if a delay of few months cannot be explained, it would be beyond reasonable period. If a delay of years can be explained and justified, it would be "within reasonable period"." The Division Bench, has determined the issue in light of such observation and observed that delay of 17 years, has remained unexplained and unjustified. It has also been held and observed that it is only defended on the ground that transaction is statutorily void; however, while defending the action, relevant aspects and explanation have not been taken into account. So is the position of present case. There is a delay of 16 years which has been, defended only on the ground that the entry no.7590 is statutorily void; however, in absence of any explanation defending the delay, it cannot be said that it would be permissible to the private respondents to unsettle the things which has remained unchallenged for all these years.
33. In the case of Chandulal Gordhandas Ranodriya & Ors. v. State of Gujarat & Ors. (supra), the issue before the Division Bench was of void transaction and it has held and observed that void transaction, if is allowed to remain effective for considerable long period, the authority named therein will be precluded from initiating proceedings to annul it. It can remain effective and in existence till it Page 37 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 is invalidated and set aside. If its existence is allowed for a considerable period and by a passage, creating valuable rights in favour of a considerable sections of people, the proposition that despite the change, the competent authority under the Act would be entitled to exercise powers at any point of time would be unjust and improper.
34. Therefore, common thread running through all the judgments is that if the statute does not provide for limitation it does not mean that it can be challenged at any point of time.
35. At the cost of repetition, it is required to be noted that the observations have also been made by the SSRD that considering the documents available on the record so also the panchnama, the entry appears to be illegal inasmuch as, the same has been mutated in favour of the third party. It has also been observed that it is difficult to find out as to whether the Somaji Maganji Thakore i.e. the petitioner is khedut khatedar or not. The SSRD, as discussed hereinabove, was also of the opinion that such transaction is liable to stamp duty and in absence of any payment of stamp duty, entry no.7590 is null and void since inception and is illegal. It is well settled proposition of law that the entries in the revenue record, are for the fiscal purpose and the revenue authorities while dealing with RTS proceeding had no jurisdiction and/or authority to decide the question of title and if there is any dispute with regard to the title, the parties are to be relegated to the civil court.
36. Reliance placed on the judgment in the case of Gandabhai Dalpatbhai Patel v. State Of Gujarat (supra) is worth referring to. In the said case, the issue was as regards the entries in the record of rights it having only a presumptive value for the purpose of revenue collection. This Court, while referring to the various judgments has held and observed that the authorities are not to decide the question of title and it has to make necessary entries on the basis of Page 38 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 the decision of the civil court. It has also been held and observed that the revenue authorities, are vested with limited powers under Section 135 and cannot assume to themselves certain powers conferred on them by law and they cannot assume jurisdiction of civil court.
37. In the case of Pagi Aataji Kacharaji v. State of Gujarat (supra), the Division Bench referred to the judgment in the case of Evergreen Apartment Co-op. Housing Society v. Special Secretary, Revenue Department reported in 1991 (1) GLR 113, wherein it has been held and observed that in the proceedings under Rule 108 of the Rules of 1972, the revenue authorities cannot independently pass orders of cancelling the entries on an assumption that the transactions recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed.
38. In the case of Jitendra Singh v. The State of Madhya Pradesh (supra), it has been held that 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 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 entry can be made.
39. Mr Shalin Mehta, learned senior counsel has also laid emphasis on the word "Will". It has been urged that the word "Will" may be read for family partition also and if at all, the parties claiming right/title on the basis of the family partition, it has to approach the appropriate civil court. The said contention, cannot be accepted. Reliance placed on the judgment in the case of Kale & Page 39 of 40 Downloaded on : Sat Dec 24 12:26:42 IST 2022 C/SCA/18273/2017 JUDGMENT DATED: 08/03/2022 others v. Deputy Director of Consolidation (supra) may be taken note of. The Apex Court, has held and observed that the members who may be the parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same. Reliance placed by the learned senior counsel for the respondent on the judgment in the case of Ravinder Kaur Grewal v. Manjit Kaur (supra), is also of no help.
40. Therefore, in the present case, as discussed hereinabove, Bhalaji Sadaji Thakore has made a statement before the authorities concerned and on the basis of the statement, entry no.7590 came to be mutated in the revenue record; however, if at all, the private respondents have any grievance as regards the partition, it was open to them to have challenged it before the Court of competent jurisdiction. In absence of any challenge and to oppose the mutation of entry, that too after 16 years and in absence of any explanation, in the opinion of this Court, is beyond reasonable period and cannot be countenanced. Therefore, order dated 16.8.2017 passed by the SSRD deserves to be quashed and set aside and is hereby quashed and set aside.
41. The petition succeeds and is accordingly allowed. Rule is made absolute. No order as to costs.
Sd/-
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