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LPA/195/2011 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 195 of 2011
In
SPECIAL
CIVIL APPLICATION No. 15794 of 2010
=========================================
BHAMINIBEN
DIPAKBHAI SHAH & 2 - Appellant(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================
Appearance :
VIRAL
K SHAH for Appellant(s) : 1 - 3.
MS. KRINA CALLA, ASSTT.GOVERNMENT
PLEADER for Respondent(s) : 1,
None for Respondent(s) : 2 -
7.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 04/02/2011
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
Prakashbhai,
owner of the land executed a will on 11.12.2003 and subsequently died
on 25.9.2005. The appellant preferred petition for mutation of land
on the basis of the will, which having not entertained, they moved
before the revisional authority and the revision petition having
dismissed, writ petition was filed and the learned Single Judge
having not entertained the writ petition, present appeal has been
preferred.
From
the record, it will be evident that will has not yet been probated.
On the contrary, a suit has been filed by brothers of the appellant
challenging the legality, propriety and validity of the will, and
the same is pending. Another suit has been filed by the appellant
with prayer to direct the opposite party therein not to create third
party right over the property in question and on an injunction
petition, order of status-quo has been granted by the Court below.
Having noticed the aforesaid facts, learned Single Judge observed
that the outcome and decision of the Civil suit will govern the
parties.
Heard
counsel for the appellant and perused the records.
It
is a settled law that mutation does not create any right and title or
interest in favour of one or another, nor cancellation of mutation
extinguishes the right and title of the rightful owner. If any
observation has been made by the revenue authorities or by the
appellate and revisional authority, while refusing to mutate the name
of the appellant, that cannot be taken into consideration to refuse
the claim of right and title of a rightful owner. In this
background, we are not inclined to interfere with the order, but make
it clear that if the will is probated and a declaration is given by
the Court of competent jurisdiction in favour of one or other party
including the appellant, such party may move before the authority for
entering the name in the revenue record (for mutation) and in that
case the competent authority, without being influenced by the orders
passed on 14.7.2006, 21.10.2008 and 29.3.2010, will consider the same
in accordance with law. For the said reason, we are not inclined to
interfere with the appeal and CA, which stand disposed of. As in the
present case we have not made any observation against the
respondents, this order will in no manner affect them and therefore,
no notice has been given.
(S.J.
Mukhopadhaya, C.J.)
(K.M.Thaker,
J.)
*/Mohandas
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