SCA/10398/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10398 of 2007 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MANHARBHAI MULJIBHAI KAKADIA & 3 - Petitioner(s) Versus STAE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR RS SANJANWALA for Petitioner(s) : 1 - 4. MR JK SHAH ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1-2 MR PREMAL R JOSHI for Respondent(s) : 3, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 13/02/2008 ORAL JUDGMENT 1. This petition, under Article 227 of the Constitution of India, has been filed with the following prayers :- SCA/10398/2007 2/8 JUDGMENT (A) The Hon'ble Court be pleased to admit and allow this petition; (B) The Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside revenue entry No. 1034 passed by respondent no. 2 at the instance of respondent no. 3 and all the consequential entries made in revenue records, including village form no. 7/12; (C ) Pending, admission, hearing and/or final disposal of this petition, this Hon'ble Court be pleased to suspend the said revenue entry No. 1034 dated 10.1.2007 and may be further pleased to restrain the respondents from taking any action in pursuance of and on the basis of the said revenue entry No. 1034 dated 10.1.2007' (D)Such other and further reliefs as this Hon'ble Court may deed just and expedient be granted in favour of the petitioners; (E) Costs of this petition be provided for to the petitioners.” 2. The brief facts of the case, as emerging from a perusal of the averments made in the petition, are that the land bearing Revenue Survey No. 65/3 of Block No. 109 of Village Bamroli, Taluka Choryasi, District Surat was originally owned by one Limbabhai Bhanabhai Patel, who expired on 10th February, 1948 The said Limbabhai Bhanabhai Patel executed a Will bequeathing the land in question to one Hirabhai Gopalbhai on 9th February, 1948. The mutation entry No. 344 was entered in the Revenue Records on 16th November, 1957, entering the name of the said Hirabhai Gopalbhai as the heir and successor of Limbabhai Bhanabhai Patel. Thereafter, Hirabhai Gopalbhai SCA/10398/2007 3/8 JUDGMENT expired and the revenue entry No. 701 was mutated on 27th September, 1990, bringing on the record the wife, three sons and three daughters of deceased Hirabhai Gopalbhai, as his heirs and successors. The land in question was sold by the heirs and successors of deceased Hirabhai Gopalbhai to the present petitioners. It is stated in the petition that after a period of almost 43 years, the respondent no. 3 questioned the revenue entry No. 344 dated 16th November, 1957, a copy of which is annexed as Annexure “A” to the petition as well as the revenue entry No. 701 dated 27th September, 1990, a copy of which is annexed as Annexure “B” to the petition, by initiating RTS proceedings, by way of filing R.T.S. Application No. 61 of 2001. This application was dismissed by the Deputy Collector, Choryasi Prant, Surat vide order dated 30th October, 2002, a copy of which is annexed as Annexure “C” to the petition. The respondent no. 3 filed R.T.S. Appeal No. 75 of 2002 before the Collector, Surat against the order of the Deputy Collector, Choryasi Prant, Surat dated 30th October, 2002. The said Appeal was dismissed vide order dated 23rd/26th May, 2003, a copy of which is annexed as Annexure “D” to the petition. 3. The averments made in the petition disclose that the respondent no. 3 also preferred Civil Suit No. 664/2005 before the Principal Civil Judge, Surat SCA/10398/2007 4/8 JUDGMENT challenging the validity of the Will made by Limbabhai Bhanabhai Patel in favour of Hirabhai Gopalbhai. The said Civil Suit is still pending. The respondent no. 3 also preferred Revision Application before the Secretary, Revenue Department [Appeals] against the order dated 23rd/26th May, 2003 passed by the Collector. The said Revision Application was allowed and mutation entry Nos.344 and 701 were quashed and set aside. 4. Being aggrieved by the said order of the Secretary, Revenue Department [Appeals], the petitioners had preferred Special Civil Application No. 2956 of 2006, which was disposed of by this Court [Coram : Jayant Patel, J.] vide judgment dated 21st June, 2006. The operative part of the said judgment dated 21st June, 2006, being relevant to the issue in question in the present writ petition, is being reproduced herein below; “5. Therefore, considering the facts and circumstances and in view of the aforesaid observation, I find that the order of the State Government dated 17.01.2006 which is impugned in this petition, deserves to be quashed and set aside with observations and directions that the entry Nos. 344 & 701 shall continue in the revenue record subject to the outcome of the proceedings of the Civil Suit no. 664 of 2005 and after the decision of the Civil Court in the aforesaid Suit pertaining to the property in question, rights of the parties shall stand governed accordingly. 6. The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and SCA/10398/2007 5/8 JUDGMENT circumstances, there shall be no order as to costs.” 5. The case of the petitioner is that after the passing of the order of this Court dated 21st June, 2006, in Special Civil Application No. 2956 of 2006, the respondent no. 2 mutated the entry No. 1034 in the revenue records on 10th January, 2007, a copy of which is annexed at page 56 of the petition, which is in breach of the directions contained in the said order of this Court dated 21st June, 2006, which is reproduced herein-above. 6. Mr. Sanjanwala, learned Senior Advocate appearing with Mr. Dilip Kanojia, advocate, for the petitioners, has submitted that the respondent no. 2 could not have gone beyond the directions contained in the order dated 21st June, 2006 passed by this Court in Special Civil Application No. 2956 of 2006, and the respondent no. 3 could not have entered the name of the respondent no. 3 in the Column of second rights, by mutation entry No. 1034. 7. On the other hand, Mr. Premal Joshi, learned counsel for the respondent no.3, submits that the said Mankorben, who is the respondent no. 3 herein, is the daughter of Limbabhai Bhanabhai, who was the original owner of the land and who had bequeathed the land to Hirabhai Gopalbhai by way of Will, which is under challenge in the Civil Suit. SCA/10398/2007 6/8 JUDGMENT 8. Mr. Jaswant K. Shah, learned Assistant Government Pleader, submits that since the Will itself is under challenge in Civil Suit No. 664 of 2005, the respondent no. 2 has not committed any irregularity in posting the mutation entry No. 1034 in the revenue records and by adding the name of the respondent no. 3 in the Column of second rights. However, Mr. Jaswant K. Shah, has fairly submitted that the directions of this Court contained in order dated 21st June, 2006, wherein this Court had directed that the entry Nos. 1034 and 701 shall continue in the Revenue Records, subject to the outcome of the proceedings of Civil Suit No. 664 of 2005, are required to be complied with, by the respondent no. 2 in letter and spirit, and appropriate directions to this effect can be issued. 9. After having heard the learned counsel for the respective parties and after having perused the averments made in the writ petition as well as the documents annexed thereto, I am of the considered opinion that the only order that is required to be passed in the facts and circumstances of the case is that the order of this Court dated 21st June, 2006 passed in Special Civil Application No. 2956 of 2006, be followed by the respondent no. 2 scrupulously, by making appropriate entry, in compliance to the directions contained in paragraph 5 of order dated SCA/10398/2007 7/8 JUDGMENT 21st June, 2006, which has been reproduced herein-above. It is relevant to note that the mutation entry No. 1034 is dated 10th January, 2007, i.e., subsequent to the passing of the order of this Court. The said order of this Court clearly stipulates that the entry Nos. 344 and 701 shall continue in the Revenue Records, subject to the outcome of the Civil Suit No. 664 of 2005 and the rights of the parties shall stand governed accordingly, after the decision in the Civil Suit. The necessary consequence of the aforesaid order is that no further entry, after the entry Nos. 344 and 701, can be mutated until the final outcome in the Civil Suit No. 664 of 2005, after which the rights of parties will be governed in the light of such final decision. 10. Accordingly, the entry No. 1034 dated 10th January, 2007 is quashed and set aside. The respondent no. 2 shall comply with the directions issued by this Court vide judgment dated 21st June, 2006 passed in the Special Civil Application No. 2956 of 2006, scrupulously. It is made clear that any observations made in this order shall have no bearing on the merits of the Civil Suit No. 664 of 2005, which is pending between the parties. 11. The writ petition is allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. SCA/10398/2007 8/8 JUDGMENT [Smt. Abhilasha Kumari, J.] /phalguni/