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AO/252/2011 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 252 of 2011
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ABHELBHAI
ARJANBHAI JADEJA & 1 - Appellant(s)
Versus
JAYDEV
MAVJI - THRO' POA HOLDER, ANILBHAI MAVJIBHAI & 6 - Respondent(s)
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Appearance :
MR.
J.R.NANAVATY, Ld. COUNSEL for MR AR THACKER for
Appellant(s) : 1 - 2.
None for Respondent(s) : 1 - 2, 4, 4.2.1,
4.2.2, 4.2.3, 4.2.4,4.2.5 - 5, 5.2.1, 5.2.2, 5.2.3, 5.2.4,5.2.5 -
7.
MR. N.D.NANAVATY, Senior Counsel with MR ANSHIN H DESAI for
Respondent(s) : 1.2.1, 1.2.2, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5,
1.3.6,1.3.7 - 2, 2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 20/09/2011
ORAL
ORDER
The
present Appeal from order has been filed by the Appellant – Original
Plaintiffs for the prayer that the impugned order passed by the
learned 7th Additional Senior Civil Judge, Rajkot below
Application (Exh.5) in Special Civil Suit No.29 of 2011 dated
7.6.2011 may be quashed and set aside on the grounds mentioned in
the memo of the Appeal.
Heard
learned Counsel Mr. J.R.Nanavaty appearing with learned Advocate Mr.
A.R.Thacker for the Appellants. Learned Counsel Mr. J.R.Nanavaty
referred to the chequerred history as regards the facts of the case.
He pointedly referred to the fact that the Appellants purchased the
land in question from the heirs of Respondent No.5 –
Vashrambhai Thobhanbhai by a registered document dated 20.9.2001,
and on the basis thereof, Entry No. 397 was made pursuant to the
application submitted by one Maujibhai Lakhmanbhai, S/o Lakhman
Thobanbhai in the year 1971. However, the said entry was certified
on 21.7.1972 and Entry no. 395 was also certified on the same day,
which created a doubt as to the genuineness of such Entry. Learned
Counsel Mr. J.R.Nanavaty, for that purpose, referred to the sale
deed, which is produced with the paper book and pointedly referred
to the recitals therein and submitted that as per the settlement, a
memorandum was executed between Vashrambai Thobanbhai and
Lakhmanbhai Thobanbhai in the year 1965. Learned Counsel Mr.
J.R.Nanavaty also pointedly referred to Clause-9, which refers to
the payment of consideration and submitted that the Appellants are
the bonafide purchaser. He also referred to the Entry Nos. 395 and
397, which is also produced alongwith the paper book, and submitted
that the real crux of the matter is regarding Entry No. 395, wherein
it is is recorded that the heirs of Lakhmanbhai Thobanbhai have
been brought on record and the name of Vashrambhai Thobanbhai is
also to be found. However, he submitted that subsequent Entry no.
397 which states that the share of Vashrambhai Thobanbhai is to the
extent of of 3 acres and 20 gunthas of land only, is disputed, for
which, there were proceedings before the revenue authorities as well
as before the Hon’ble High Court. He also referred to the order
passed by the revenue authorities, including the order passed by the
Collector dated 30.8.2001. Learned Counsel Mr. J.R.Nanavaty
submitted that therefore, sale in favour of the Appellants in the
year 2001 was already made and the order canceling the Entry and the
order passed in the Revision in 2008 are required to be considered.
He emphasized and submitted that out of 12 acres and 21 gunthas of
land, 3 acres and 20 gunthas were conveyed by Vashrambhai Thobanbhai
to one Bhailalbhai and the remaining land was sold to the
Appellants. He therefore submitted that the Appellants are the
bonafide purchaser for value, and therefore, the impugned order
deserves to be quashed and set aside. Learned Counsel Mr.
J.R.Nanavaty referred to the written statement produced in the paper
book and also the judgment as well as the facts narrated therein.
Learned Counsel Mr. J.R.Nanavaty has also referred to and relied
upon the judgment of the Hon’ble Apex Court in case of Maharwal
Khewaji Trust (Regd.), Faridkot v. Baldev Dass, AIR 2005 SC 105.
Learned Counsel Mr. J.R.Nanavaty also
submitted that the main basis is the understanding or the settlement
of the year 1965, which is bogus, and it is on the basis of this,
the order came to be passed by the Collector, which is informed to
the Secretary vide communication dated 9.01.2002. He therefore
submitted that the impugned order passed below Application (Exh.5)
deserves to be quashed and set aside, and pending hearing of this
Appeal from Order, stay may be granted.
Learned
Senior Counsel Mr. N.D.Nanavaty appearing with learned Advocate Mr.
Anshin H. Desai for the Respondents – Original Defendants
submitted that the Appellants – Original Plaintiffs have
produced relevant fats and the conduct of the Appellants –
Original Plaintiffs is required to be considered. Learned Senior
Counsel Mr. N.D.Nanavaty submitted that the Application (Exh.5) is
dismissed wherein the Court below has observed about suppression of
facts by the present Appellants – Original Plaintiffs.
Learned Senior Counsel Mr. N.D.Nanavaty pointedly referred to this
aspect and submitted that inspite of these observations, even in
this Appeal from order also, the vital facts have not been properly
stated in the pleadings. Again, he referred to the paper book and
the details including the order passed below Application (Exh.5) in
Special Civil Suit No.29 of 2011. Learned Senior Counsel Mr.
N.D.Nanavaty submitted that infact earlier also there was a Petition
filed, which was rejected and the Letters Patent Appeal No.1469 of
2008 was preferred, which was also disposed of. However, Hon’ble
High Court has not given any direction as sought to be canvassed and
it has only stated:
“If
the Appellants or any aggrieved person so choose may move before a
Court of law for declaration of right and title.”
Learned
Senior Counsel Mr. N.D.Nanavaty therefore submitted that in view of
the writing which is clearly making the position clear when the two
Entry nos. 395 and 397 are considered in background of the facts
that the land originally belong to Thobanbhai Govindbhai –
father of both Vashrambhai Thobanbhai and Lakhmanbhai Thobanbhai and
the Entries were made in the revenue record. Thereafter in the year
1971 when Lakhmanbhai Thobanbhai died, as per Entry no. 395 the
heirs of Lakhmanbhai Thobanbhai were brought on record and the name
of Vashrambhai Thobanbhai was also shown. Thereafter there was an
understanding and as per Entry no.397, only 3 acres and 20 gunthas
of land remained with Vashrambhai Thobanbhai as Vashrambhai
Thobanbhai, out of his share in the land bearing Survey No.15, had
sold the remaining land in the year 1979 to one Bhailalbhai, for
which Entry no.547 has been made. Therefore, learned Senior Counsel
Mr. N.D.Nanavaty submitted that the Appellants, who are the heirs of
Vashrambhai Thobanbhai ought to have appreciated that no further
land remained with Vashrambhai. Learned Senior Counsel Mr.
N.D.Nanavaty emphasized and submitted
that as back as in the year 1976 when the forms were
filled-in under the ULC Act, the authority has shown his land to the
extent of 3 acres and 20 gunthas and the rest of the land is stated
to have been sold by him. Therefore, if during his life time
deceased Vashrambhai Thobanbhai has disposed of the land, and when,
to his knowledge, he was not the owner and has not made any
declaration in the form under the ULC Act, the claim made by the
Appellants – Original Plaintiffs with regard to the larger
portion of the land is without any basis. He also referred to the
record with regard to the order passed by the Collector and
submitted that two revisions were also preferred and there is an
earlier round of litigation before the High Court also. He
submitted that the Hon’ble High Court had remanded the matter as per
the order passed in Special Civil Application No.6670 of 2003 and
6171 of 2003. The revision was heard and it was remanded to the
Collector. Therefore, the order of the Collector dated 30.8.2001,
on the basis of which the entries were made, had not remained and it
was required to be decided fresh. He submitted that there are
criminal proceedings also, and it is in this background of
chequerred history of litigation, the impugned order came to be
passed by the trial Court, which cannot be said to be erroneous.
Learned Senior Counsel Mr. N.D.Nanavaty submitted that as observed
in the impugned order, the claim is made and it has been observed
that referring to the
detailed history about the chequerred litigation that
inspite of the notice under Section 135(D), no objections were
taken, and after 25 years, such contentions have been raised, and
therefore, the injunction was denied and the ex parte order
directing the parties to maintain status quo was vacated, which
cannot be said to be erroneous.
Learned
Senior Counsel Mr. N.D.Nanavaty has also submitted that the
possession has been with the present Respondents, which is
admittedly stated by the Appellants – Original Plaintiffs, and
therefore, the discretionary relief has been denied. He has
referred to and relied upon the judgment of the Hon’ble Apex Court
in case of Jasoda Indralal Vadhva v. Hemendrabhai Kakulal
Vyas and Ors., 2009 (2) GLH 437 in
support of his submission.
In view of
the rival submissions, it is required to be considered whether the
present Appeal from Order can be entertained or not.
From
the rival submissions and the detailed record, which has been
referred to by both the sides, it is evident that there is a
chequerred history of litigation revolving around the entries made
in the revenue record, which is again subject to further litigation
before the revenue authorities. However, the short issue, which is
required to be addressed in this case is that the Court in the
present Appeal from Order is not required to decide about the claim
of either side and the only issue which is
required to be addressed is whether the impugned order passed
by the Court below Exh.5 having regard to the detailed discussions
and the chequerred history can be said to be erroneous. As could be
seen from the few admitted facts referring to the details, it is
evident that Vashrambhai Thobanbhai and Lakhmanbhai Thobanbhai were
brothers who would have equal share in respect of the land which is
devolved upon them. However, much reliance placed by learned
Counsel Mr. J.R.Nanavaty referring to the Entry Nos. 395 and 397,
require a close look. Entry No.395 is with regard to bringing the
heirs of Vashrambhai Thobanbhai after his death and incidentally the
name of Vashrambhai mentioned at Entry at 397 clearly refers to the
fact that there was an application specifically given for the share
of Vashrambhai Thobanbhai in the land to the extent of 3 acres and
20 gunthas and there is also an endorsement with regard to the
settlement or the family settlement. The order passed by the
Collector has referred to these aspects. The Revision of the
Appellants herein has been rejected and the order of the Collector
has been set aside as per the order passed in Remand Case No.
1/4/2004 and 2005 dated 19.10.2006. The order of the Division Bench
of the High Court of Gujarat in Letters Patent Appeal No.1469 of
2008 dated 29.12.2010 clearly observed:
“It
is the settled law that entry of name of a person in the revenue
record [mutation] do not create any right and title in favour of any
one or the other person nor cancellation of such entry
[mutation] extinguishes the right and title of a rightful owner. No
person can claim right and title on the basis of entry in the
revenue record. Therefore, interference at this stage is not
required. Further, as the appellants herein, for one or the other
reason, have not objected to the revenue entry [mutation] made 25
years back, we are of the view that there was no cause of action
took place for the authorities to re-open the matter in absence of
any fresh determination by the Court of law or cause of action like
production of a subsequent Sale Deed, etc. If the appellants or any
aggrieved person so choose may move before a Court of law for
declaration of right and title. In such case, the order passed by
the authorities or the Court shall not stand in the way of the
aggrieved person. If such declaration is given in favour of any
person, such person may move before the authorities for entering his
name in the revenue record. The Appeal and Civil Applications both
stand disposed of. No costs.”
It is this
oder which has lead to filing of the Suit as well as Appeal from
Order and the pedigree which is shown in the paper book will make
the position clear with regard to the fact that though Vashrambhai
Thobanbhai had a right to the extent of 50% of the land, he infact
has disposed of during his life time certain portion of the land
leaving only 3 acres and 20 gunthas. It is in this background and
considering the details with regard to the rounds of litigation,
when there is no basis or foundation, particularly when it could be
seen from the record itself, that the deceased Vashrambhai
Thobanbhai had during his life time disposed of the property.
Infact, while
filling
the form under the ULC Act, he has shown his land to the extent 3
acres and 20 gunthas only. Meaning thereby, he is aware about
having disposed of the other parcel of the land. Therefore, the
family settlement or the arrangement of 1965 could also be
considered on the basis of the evidence at the trial and the Entries
which have been made, including the sale deed, could be examined in
light of the evidence. Therefore, considering these aspects, though
normally status quo is ordered to be maintained with regard to the
disputed property / land so that irreversible situation is not
created and the rights of both the parties are protected or
maintained, the facts do not suggest for such a case. Therefore,
though normally status quo is required to be maintained so that
prejudice is not caused to either side and it is not resulting into
only a paper decree or the rights of the party are not created
making any further complication. There has to be a prima facie case
or rather a strong prima facie case as discussed above in the facts
of the case when the Appellants – Original Plaintiffs who have
failed to establish any such prima facie case, it cannot be said
that the impugned order passed below Application (Exh.5) in Special
Civil Suit No.29 of 2011 dated 7.6.2011 is erroneous which would
call for any interference in the present Appeal from Order. The
present Appeal from Order therefore deserves to be dismissed and
accordingly
stands dismissed.
(Rajesh H.
Shukla,J)
FURTHER
ORDER
After the
order was pronounced, learned Advocate Mr. A.R.Thacker for the
Appellants requested for stay of the operation of the order and
continuance of interim relief, which has been operating till today,
granted by the Court below to enable his client to approach the
Hon’ble Apex Court.
The
request as prayed for is granted. The interim relief, which has
remained operative till today, shall remain operative upto
21.10.2011.
(Rajesh H.
Shukla,J)
Jayanti*
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