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SCA/1882/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1882 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
VIMALCHAND
UDAYCHAND & 2 - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
AN PATEL for Petitioner(s) : 1 - 3.
MR RASHESH RINDANI AGP for
Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 03/09/2010
ORAL
JUDGMENT
1. By
way of this petition, the petitioners have prayed for the following
reliefs :-
“[A]
This Hon’ble Court may be pleased to issue a writ of mandamus,
certiorari, prohibition and/or direction, order, writ, to the
respondents to approve/certified the entry no. 893 in the records of
right of survey No. 58/2, and Block No. 50 admeasuring Acre 1.2
Gunthas of village Chharodi, Tal. Dascroi, Dist. Ahmedabad in favour
of the petitioners by virtue of will and probate of deceased Bhikhaji
Lalji Thakore, and to quash and set aside the impugned orders passed
by the Revenue Authorities.
[B]
During the pendency and final disposal of this petition, be pleased
to stay the orders of the Revenue Authority for disapproving the
Revenue entry no. 893;
[C]
& [D] …..”
2. The
short facts of the case are that the land bearing Survey No. 58,
admeasuring 1 Acre 2 gunthas of Village Chharodi, Taluka Dascroi,
District Ahmedabad was owned and possessed by one Bhikaji Lalji
Thakore. As the petitioners were closely associated with the said
Bhikaji Lalji Thakore, he bequeathed the aforesaid land to the
petitioners by a Will, executed on 09.04.1964. After the execution
of the will, Bhikaji Lalji Thakore expired on 30.11.1964. The
petitioners, on the basis of the Will executed by Bhikaji Lalji
Thakore, preferred an application before the Revenue Authority for
entering the revenue entry in the record of rights of the said
bequeathed property in village form no. 6, 7/12, 8 etc. As the entry
in the record of rights was not mutated, the petitioners preferred
Misc. Civil Application No. 105/89 before the District Court,
Ahmedabad for obtaining a probate of the said Will, which was
dismissed by the District Court, Ahmedabad. Against the said order,
the petitioners preferred Appeal from Order No. 489/1990 before this
Court. This Court vide order dated 10.12.1990 allowed the said appeal
and granted probate in favour of the petitioners. Pursuant to
the order passed by this Court, the District Court, Ahmedabad vide
order dated 16.03.1992 granted probate in respect of the Will
executed in favour of the petitioners.
2.1. After
grant of probate in respect of the Will executed in favour of the
petitioners, the petitioners preferred an application before the
revenue authority for entering the revenue entry in the record of
rights of the said bequeathed property in village form no. 6, 7/12,
8 etc. and accordingly entry no. 893 was made in the village form no.
6. However, the said entry was not certified by the Dy. Mamlatdar on
the ground of breach of the provisions of Fragmentation and Tenancy
Act, as the land in question was a new tenure land. Being aggrieved
by the said order, the petitioners preferred Revenue Appeal being RTS
Appeal No. 52/94-95 before the Dy. Collector-respondent no. 3
herein. The respondent no. 3 vide order dated 29.06.1995 rejected the
said appeal on the ground of breach of provisions of Section 63 of
the Tenancy Act. Being aggrieved and dissatisfied by the said order,
the petitioners preferred Revision Application No. 49/1995 before
respondent no. 2, which came to be rejected vide order dated
21.10.1995. Against the said order, the petitioners preferred
Revision Application No. 72/1997 before respondent no. 1. Respondent
no. 1 vide order dated 20.09.2003 rejected the said application.
Hence, this petition.
3. Heard
learned counsel for the respective parties and perused the documents
on record. From the record it transpires that the land in question
was a new tenure land and as the petitioners being non agriculturist,
they were not entitled to hold the land in dispute, bequeathed to
them by a Will. Looking to the
facts of the case and in view of the fact that there is breach of the
provisions of Section 63 of the Tenancy Act, the authorities below
were completely justified in passing the impugned orders. Considering
the facts of the case, in my opinion, the respondent authorities were
completely justified in passing the impugned orders. I am in complete
agreement with the concurrent findings recorded by respondent
authorities and hence, find no reason to interfere with the same.
4. In
the result, the petition is dismissed. Rule is discharged. Interim
relief if, any, stands vacated.
[K.S.
JHAVERI, J.]
/phalguni/
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