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LPA/1394/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1394 of 2010
In
SPECIAL
CIVIL APPLICATION No. 11440 of 2008
With
CIVIL
APPLICATION No. 6419 of 2010
In
LETTERS
PATENT APPEAL No. 1394 of 2010
=========================================
KANAJI
VARVAJI & 2 - Appellant(s)
Versus
MAMLATDAR
& ALT & 4 - Respondent(s)
=========================================
Appearance :
MR
SP MAJMUDAR and MR PP MAJMUDAR for the Appellants.
Mr. J.K.Shah
for Respondent nos.1 and 2.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 15/07/2010
ORAL
ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
petitioners preferred a petition under Article 227 of the
Constitution of India and prayed to hold and declare that the entries
which have been posted in favour of the 3rd and 4th respondents and
entry in favour of 5th respondent by sale deed agreement dated
2.2.2007 to be illegal, arbitrary, contrary to Section 8 of the
Bombay Prevention of Fragmentation Act, 1947. It was also prayed to
declare that the petitioners are cultivating the land and they are in
possession of the same and therefore, entitled to hold the land as
tenants until the entries mutated are cancelled and as judgment and
decree that may be passed by the Court in Special Civil Suit no. 1890
of 2004. A prayer was also made to set aside the order dated
25.2.2008 passed by the Gujarat Revenue Tribunal in Revision
Application No. TEN.BA 104/2005 and the order of the Deputy
Collector(L.R. Appeals), Ahmedabad dated 28.1.2005 passed in
Tenancy Appeal No. 138 of 2003 whereby the order of Mamlatdar and ALT
dated 26th June, 2000 passed in Tenancy case no. 27 of 2000 was
affirmed.
2. We
have heard learned counsel appearing on behalf of the petitioners and
learned Assistant Government Pleader for the State.
3. In
the present case, it will be evident that it is not in dispute that
the petitioners were the owners of the land. They executed sale deed
dated 9.4.1997 voluntarily in favour of the 3rd and 4th respondents
for a consideration of Rs. 4,95,000/- which the petitioners received
prior to executing the sale deed. The statutory authorities, while
exercising the powers under Act, have not found any infirmity in the
said transaction. Taking into consideration the aforesaid facts, as
the petitioners have parted away with the land in question, the
learned Single Judge, at the instance of the petitioners refused to
decide the question whether 3rd and 4th respondents had become
agriculturists by virtue of a Will or not. We find no infirmity in
the said order.
This
apart, Appeal under Clause 15 of the Letters Patent is also not
maintainable against the order passed in a writ petition under
Article 227 of the Constitution of India, under which the relief was
sought for by the petitioners. In absence of any merits, the Appeal
and Civil Application both are dismissed. No costs.
(S.J.Mukhopadhaya,C.J.)
(K.M.Thaker,J)
***vcdarji
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