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SCA/6015/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6015 of 2008
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RASIKBHAI
CHHOTABHAI PANDYA & 3 - Petitioner(s)
Versus
VINUBHAI
CHHOTABHAI PANDYA SINCE DECD.THRO HIS LEGAL HEIR & 4 -
Respondent(s)
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Appearance
:
MR
HARDIK C RAWAL for
Petitioner(s) : 1 - 4.MRS MH RAWAL for Petitioner(s) : 1 - 4.
MR
BG PATEL for Respondent(s) : 1,
None for Respondent(s) : 2 -
5.
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CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/08/2008
ORAL
ORDER
The
petitioners have challenged the judgment and order dated 03.09.2007
passed by the Gujarat Revenue Tribunal in Revision Application
No.TEN.BA/182 / 2006. By the said order, the Tribunal was pleased to
reject the revision application of the petitioners and confirmed the
order passed by the Deputy Collector as well as the Mamlatdar &
ALT.
The
case pertains to the land which is part of Survey No.160 admeasuring
Acre 3 ? 12 Guntha of village Adas, Taluka Anand, District Anand.
The petitioners as well as the respondent Nos.1 to 4 who are legal
heirs of the original tenant viz. Vinubhai Chhotabhai. Upon death
Chhotabhai Bhailalbhai, his son Vinubhai Chhotabhai was declared as
tenant of the said land under the proceedings under Section 32-G of
the Bombay Tenancy and Agricultural Lands Act, 1948 (for short ?Sthe
Act??) to the exclusion of the other brothers. Chhotabhai paid
purchase price of Rs.5,000/- and certificate in his favour in the
prescribed form of having become deemed purchaser was also issued.
Vinubhai Chhotabhai expired in the year 1994. Names of his heirs viz.
present respondent Nos.1 to 4 were entered into revenue record. Upon
their request, the land was converted into old tenure land upon from
new tenure upon payment of the premium to the Government in the year
2002. The land was sold by registered sale deed dated 20.02.2005 by
the respondent Nos.1 to 4 in favour of the respondent No.5 herein.
Soon thereafter the present petitioners filed appeal before the
Deputy Collector being Tenancy Appeal No.78 of 2005 on 31.05.2005
seeking to challenge the original order of the Mamlatdar and ALT
dated 30.07.1976 declaring Vinubhai Chhotabhai as tenant of the
disputed land. This appeal came to be dismissed by the Deputy
Collector by his judgment dated 24.03.2006. Upon which the
petitioners approached the Gujarat Revenue Tribunal. Their revision
application also came to be dismissed by the impugned judgment and
order.
The
Tribunal while dismissing the revision application observed that
after the Mamlatdar passed his order in the year 1976, entries in the
revenue record were made. Certificate under Section 32-M of the Act
was granted in favour of the deceased Vinubhai Chhotabhai. New tenure
land was converted into old tenure by the heirs of deceased Vinubhai
Chhotabhai by paying premium. Prior thereto, upon death of Vinubhai
Chhotabhai, names of the respondent Nos.1 to 4 were entered as
occupants of the land. During the life time of Vinubhai Chhotabhai
and after his death, his heirs were paying the land revenue for the
disputed land. The Tribunal also observed that the deceased Vinubhai
Chhotabhai was not eldest brother and therefore, rejected the theory
of Vinubhai Chhotabhai as being Karta of the joint family. On all
these grounds, the Tribunal was pleased to uphold the order passed by
the Deputy Collector which was based on merits as well as on delay in
challenging the order passed by the Mamlatdar and ALT.
I
have no reason to take different view. With respect to the factual
findings arrived at by the two authorities below, there is hardly any
dispute possible. Admittedly, the petitioners did not challenge the
order passed by the Mamlatdar in the year 1976, right upto 2005 till
the land was sold by the heirs of Vinubhai Chhotabhai after
converting it into old tenure from the new tenure. All through out,
Vinubhai Chhotabhai and after his death, his heirs decedents who were
occupying and cultivating the land.
Learned
advocate for the petitioners drew my attention to the deposition of
Vinubhai Chhotabhai before the Mamlatdar in which he has stated that
after death of his father, he is cultivating the land as elder member
of the Hindu United Family. On the basis of the said statements,
reliance was placed on the decision of the learned Single Judge of
this Court in the case of Shankerbhai Kanjihai & Another v.
Dagadubhai Govindbhai and others reported in 1991 (2) GLH 487. He
submitted that above statement of Vinubhai Chhotabhai in his
deposition, has not been considered by the Tribunal.
I
am afraid on this count, the orders passed by the authorities below,
cannot be disturbed. Admittedly, for about 20 years, order passed by
the Mamlatdar & ALT was not challenged by the present
petitioners. Through out record of rights reflects the name of
Vinubhai Chhotabhai and his heirs. At no stage, the petitioners
complained about the same. Thus, if Vinubhai Chhotabhai when
cultivating the land as member of HUF, after his death, when the
names of his heirs to the exclusion of other family members were
entered, the petitioners ought to have raised their grievance. The
petitioners tried to challenge the order passed by the Mamlatdar only
after the land was sold by the heirs of Vinubhai Chhotabhai in favour
of the respondent No.5. In the mean time, the land was converted from
new tenure to old tenure by the heirs of Vinubhai Chhotabhai.
All
the petitioners have any right against the heirs of Vinubhai
Chhotabhai to claim their share in the accounts of sale proceeds, the
same is different issue altogether. Learned advocate for the
petitioners stated that the petitioners have already filed civil suit
in this regard. The same shall be decided on merits on the basis of
the evidence that may be brought on record unmindful of any of the
observations made in this order.
With
these observations, the petition is dismissed.
(
Akil Kureshi, J. )
kailash
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