{"id":59583,"date":"2011-09-20T00:00:00","date_gmt":"2011-09-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abhelbhai-vs-jaydev-on-20-september-2011"},"modified":"2017-11-18T16:46:46","modified_gmt":"2017-11-18T11:16:46","slug":"abhelbhai-vs-jaydev-on-20-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abhelbhai-vs-jaydev-on-20-september-2011","title":{"rendered":"Abhelbhai vs Jaydev on 20 September, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Abhelbhai vs Jaydev on 20 September, 2011<\/div>\n
Author: Rajesh H.Shukla,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nAO\/252\/2011\t 11\/ 11\tORDER \n \n \n\n\t\n\n \n\n \n\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nAPPEAL\nFROM ORDER No. 252 of 2011\n \n\n \n\n\n \n\n \n=========================================\n\n\n \n\nABHELBHAI\nARJANBHAI JADEJA & 1 - Appellant(s)\n \n\n \n\n\n \n\nVersus\n \n\n \n\n\n \n\nJAYDEV\nMAVJI - THRO' POA HOLDER, ANILBHAI MAVJIBHAI & 6 - Respondent(s)\n \n\n \n \n\n\n \n\n=========================================\n \nAppearance : \nMR.\nJ.R.NANAVATY, Ld. COUNSEL for MR AR THACKER for\nAppellant(s) : 1 - 2. \nNone for Respondent(s) : 1 - 2, 4, 4.2.1,\n4.2.2, 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 -\n7. \nMR. N.D.NANAVATY, Senior Counsel with MR ANSHIN H DESAI for\nRespondent(s) : 1.2.1, 1.2.2, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.3.5,\n1.3.6,1.3.7 - 2, 2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6 -\n3. \n========================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n \n \n\n\t\t\t\n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\n \n \n\n\t\t\t\n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 20\/09\/2011 \n\n \n\n \nORAL\nORDER<\/pre>\n
The
\n\tpresent Appeal from order has been filed by the Appellant – Original
\n\tPlaintiffs for the prayer that the impugned order passed by the
\n\tlearned 7th Additional Senior Civil Judge, Rajkot below
\n\tApplication (Exh.5) in Special Civil Suit No.29 of 2011 dated
\n\t7.6.2011 may be quashed and set aside on the grounds mentioned in
\n\tthe memo of the Appeal.\n<\/p>\n
Heard
\n\tlearned Counsel Mr. J.R.Nanavaty appearing with learned Advocate Mr.
\n\tA.R.Thacker for the Appellants.  Learned Counsel Mr. J.R.Nanavaty
\n\treferred to the chequerred history as regards the facts of the case.
\n\t He pointedly referred to the fact that the Appellants purchased the
\n\tland in question from the heirs of Respondent No.5 –
\n\tVashrambhai Thobhanbhai by a registered document dated 20.9.2001,
\n\tand on the basis thereof, Entry No. 397 was made pursuant to the
\n\tapplication submitted by one Maujibhai Lakhmanbhai, S\/o Lakhman
\n\tThobanbhai in the year 1971.  However, the said entry was certified
\n\ton 21.7.1972 and Entry no. 395 was also certified on the same day,
\n\twhich created a doubt as to the genuineness of such Entry.  Learned
\n\tCounsel Mr. J.R.Nanavaty, for that purpose, referred to the sale
\n\tdeed, which is produced with the paper book and pointedly referred
\n\tto the recitals therein and submitted that as per the settlement, a
\n\tmemorandum was executed between Vashrambai Thobanbhai and
\n\tLakhmanbhai Thobanbhai in the year 1965.  Learned Counsel Mr.
\n\tJ.R.Nanavaty also pointedly referred to Clause-9, which refers to
\n\tthe payment of consideration and submitted that the Appellants are
\n\tthe bonafide purchaser.  He also referred to the Entry Nos. 395 and
\n\t397, which is also produced alongwith the paper book, and submitted
\n\tthat the real crux of the matter is regarding Entry No. 395, wherein
\n\tit is is recorded that the heirs of Lakhmanbhai Thobanbhai  have
\n\tbeen brought on record and the name of Vashrambhai Thobanbhai is
\n\talso to be found.  However, he submitted that subsequent Entry no.
\n\t397 which states that the share of Vashrambhai Thobanbhai is to the
\n\textent of of 3 acres and 20 gunthas of land only, is disputed, for
\n\twhich, there were proceedings before the revenue authorities as well
\n\tas before the Hon’ble High Court.  He also referred to the order
\n\tpassed by the revenue authorities, including the order passed by the
\n\tCollector dated 30.8.2001.  Learned Counsel Mr. J.R.Nanavaty
\n\tsubmitted that therefore, sale in favour of the Appellants in the
\n\tyear 2001 was already made and the order canceling the Entry and the
\n\torder passed in the Revision in 2008 are required to be considered.
\n\tHe emphasized and submitted that out of 12 acres and 21 gunthas of
\n\tland, 3 acres and 20 gunthas were conveyed by Vashrambhai Thobanbhai
\n\tto one Bhailalbhai and the remaining land was sold to the
\n\tAppellants.  He therefore submitted that the Appellants are the
\n\tbonafide purchaser for value, and therefore, the impugned order
\n\tdeserves to be quashed and set aside.  Learned Counsel Mr.
\n\tJ.R.Nanavaty referred to the written statement produced in the paper
\n\tbook and also the judgment as well as the facts narrated therein.
\n\tLearned Counsel Mr. J.R.Nanavaty has also referred to and relied
\n\tupon the  judgment of the Hon’ble Apex Court in case of Maharwal
\n\tKhewaji Trust (Regd.), Faridkot v. Baldev Dass, AIR<\/a> 2005 SC 105.
\n\t Learned Counsel Mr. J.R.Nanavaty also
\n\tsubmitted that the main basis is the understanding or the settlement
\n\tof the year 1965, which is bogus, and it is on the basis of this,
\n\tthe order came to be passed by the Collector, which is informed to
\n\tthe Secretary vide communication dated 9.01.2002.  He therefore
\n\tsubmitted that the impugned order passed below Application (Exh.5)
\n\tdeserves to be quashed and set aside, and pending hearing of this
\n\tAppeal from Order, stay may be granted.\n<\/p>\n
\tLearned
\n\tSenior Counsel Mr. N.D.Nanavaty appearing with learned Advocate Mr.
\n\tAnshin H. Desai for the Respondents – Original Defendants
\n\tsubmitted that the Appellants – Original Plaintiffs have
\n\tproduced relevant fats and the conduct of the Appellants –
\n\tOriginal Plaintiffs is required to be considered. Learned Senior
\n\tCounsel Mr. N.D.Nanavaty submitted that the Application (Exh.5) is
\n\tdismissed wherein the Court below has observed about suppression of
\n\tfacts by the present Appellants – Original Plaintiffs.
\n\tLearned Senior Counsel Mr. N.D.Nanavaty pointedly referred to this
\n\taspect and submitted that inspite of these observations, even in
\n\tthis Appeal from order also, the vital facts have not been properly
\n\tstated in the pleadings.  Again, he referred to the paper book and
\n\tthe details including the order passed below Application (Exh.5) in
\n\tSpecial Civil Suit No.29 of 2011.   Learned Senior Counsel Mr.
\n\tN.D.Nanavaty submitted that infact earlier also there was a Petition
\n\tfiled, which was rejected and the Letters Patent Appeal No.1469 of
\n\t2008 was preferred, which was also disposed of.  However, Hon’ble
\n\tHigh Court has not given any direction as sought to be canvassed and
\n\tit has only stated:\n<\/p>\n
“If
\n\tthe Appellants or any aggrieved person so choose may move before a
\n\tCourt of law for declaration of right and title.”\n<\/p>\n
Learned
\n\tSenior Counsel Mr. N.D.Nanavaty therefore submitted that in view of
\n\tthe writing which is clearly making the position clear when the two
\n\tEntry nos. 395 and 397 are considered in background of the facts
\n\tthat the land originally belong to Thobanbhai Govindbhai –
\n\tfather of both Vashrambhai Thobanbhai and Lakhmanbhai Thobanbhai and
\n\tthe Entries were made in the revenue record.  Thereafter in the year
\n\t1971 when Lakhmanbhai Thobanbhai died, as per Entry no. 395 the
\n\theirs of Lakhmanbhai Thobanbhai were brought on record and the name
\n\tof Vashrambhai Thobanbhai was also shown.  Thereafter there was an
\n\tunderstanding and as per Entry no.397, only 3 acres and 20 gunthas
\n\tof land remained with Vashrambhai Thobanbhai as Vashrambhai
\n\tThobanbhai, out of his share in the land bearing Survey No.15, had
\n\tsold the remaining land in the year 1979 to one Bhailalbhai, for
\n\twhich Entry no.547 has been made. Therefore,  learned Senior Counsel
\n\tMr. N.D.Nanavaty submitted that the Appellants, who are the heirs of
\n\tVashrambhai Thobanbhai ought to have appreciated that no further
\n\tland remained with Vashrambhai.   Learned Senior Counsel Mr.
\n\tN.D.Nanavaty emphasized and submitted
\n\tthat as back as in the year 1976 when the forms were
\n\tfilled-in under the ULC Act, the authority has shown his land to the
\n\textent of 3 acres and 20 gunthas and the rest of the land is stated
\n\tto have been sold by him.  Therefore, if during his life time
\n\tdeceased Vashrambhai Thobanbhai has disposed of the land, and when,
\n\tto his knowledge, he was not the owner and has not made any
\n\tdeclaration in the form under the ULC Act, the claim made by the
\n\tAppellants – Original Plaintiffs with regard to the larger
\n\tportion of the land is without any basis.  He also referred to the
\n\trecord with regard to the order passed by the Collector and
\n\tsubmitted that two revisions were also preferred and there is an
\n\tearlier round of litigation before the High Court also.  He
\n\tsubmitted that the Hon’ble High Court had remanded the matter as per
\n\tthe order passed in Special Civil Application No.6670 of 2003 and
\n\t6171 of 2003.    The revision was heard and it was remanded to the
\n\tCollector.  Therefore, the order of the Collector dated 30.8.2001,
\n\ton the basis of which the entries were made, had not remained and it
\n\twas required to be decided fresh. He submitted that there are
\n\tcriminal proceedings also, and it is in this background of
\n\tchequerred history of litigation, the impugned order came to be
\n\tpassed by the trial Court, which cannot be said to be erroneous.
\n\tLearned Senior Counsel Mr. N.D.Nanavaty submitted that as observed
\n\tin the impugned order, the claim is made and it has been observed
\n\tthat referring to the
\n\tdetailed history about the chequerred litigation that
\n\tinspite of the notice under Section 135(D), no objections were
\n\ttaken, and after 25 years, such contentions have been raised, and
\n\ttherefore, the injunction was denied and the ex parte order
\n\tdirecting the parties to maintain status quo was vacated, which
\n\tcannot be said to be erroneous.\n<\/p>\n
Learned
\n\tSenior Counsel Mr. N.D.Nanavaty has also submitted that the
\n\tpossession has been with the present Respondents, which is
\n\tadmittedly stated by the Appellants – Original Plaintiffs, and
\n\ttherefore, the discretionary relief has been denied.  He has
\n\treferred to and relied upon the judgment of the Hon’ble Apex Court
\n\tin case of Jasoda Indralal Vadhva v. Hemendrabhai Kakulal
\n\tVyas and Ors., 2009 (2) GLH 437 in
\n\tsupport of his submission.\n<\/p>\n
\tIn view of
\n\tthe rival submissions, it is required to be considered whether the
\n\tpresent Appeal from Order can be entertained or not.\n<\/p>\n
From
\n\tthe rival submissions and the detailed record, which has been
\n\treferred to by both the sides, it is evident that there is a
\n\tchequerred history of litigation revolving around the entries made
\n\tin the revenue record, which is again subject to further litigation
\n\tbefore the revenue authorities.  However, the short issue, which is
\n\trequired to be addressed in this case is that the Court in the
\n\tpresent Appeal from Order is not required to decide about the claim
\n\tof either side and the only issue which is
\n\trequired to be addressed is whether the impugned order passed
\n\tby the Court below Exh.5 having regard to the detailed discussions
\n\tand the chequerred history can be said to be erroneous.  As could be
\n\tseen from the few admitted facts referring to the details, it is
\n\tevident that Vashrambhai Thobanbhai and Lakhmanbhai Thobanbhai were
\n\tbrothers who would have equal share in respect of the land which is
\n\tdevolved upon them.  However, much reliance placed  by learned
\n\tCounsel Mr. J.R.Nanavaty referring to the Entry Nos. 395 and 397,
\n\trequire a close look.  Entry No.395 is with regard to bringing the
\n\theirs of Vashrambhai Thobanbhai after his death and incidentally the
\n\tname of Vashrambhai mentioned at Entry at 397 clearly refers to the
\n\tfact that there was an application specifically given for the share
\n\tof Vashrambhai Thobanbhai in the land to the extent of 3 acres and
\n\t20 gunthas and there is also an endorsement with regard to the
\n\tsettlement or the family settlement.  The order passed  by the
\n\tCollector has referred to these aspects.  The Revision of the
\n\tAppellants herein has been rejected and the order of the Collector
\n\thas been set aside as per the order passed in Remand Case No.
\n\t1\/4\/2004 and 2005 dated 19.10.2006.  The order of the Division Bench
\n\tof the High Court of Gujarat in Letters Patent Appeal No.1469 of
\n\t2008 dated 29.12.2010 clearly observed:\n<\/p>\n
“It
\n\tis the settled law that entry of name of a person in the revenue
\n\trecord [mutation] do not create any right and title in favour of any
\n\tone or the other person nor cancellation of such entry
\n\t[mutation]  extinguishes the right and title of a rightful owner. No
\n\tperson can claim right and title on the basis of entry in the
\n\trevenue record. Therefore, interference at this stage is not
\n\trequired. Further, as  the appellants herein, for one or the other
\n\treason, have not objected to the revenue entry [mutation] made 25
\n\tyears back, we are of the view that there was no cause of action
\n\ttook place for the authorities to re-open the matter in absence of
\n\tany fresh determination by the Court of law or cause of action like
\n\tproduction of a subsequent Sale Deed, etc. If the appellants or any
\n\taggrieved person so choose may move before a Court of law for
\n\tdeclaration of right and title. In such case, the order passed by
\n\tthe authorities or the Court shall  not stand in the way of the
\n\taggrieved person. If such declaration is given in favour of any
\n\tperson, such person may move before the authorities for entering his
\n\tname in the revenue record. The Appeal and Civil Applications both
\n\tstand disposed  of.  No costs.”\n<\/p>\n
\tIt is this
\n\toder which has lead to filing of the Suit as well as Appeal from
\n\tOrder and the pedigree which is shown in the paper book will make
\n\tthe position clear with regard to the fact that though Vashrambhai
\n\tThobanbhai had a right to the extent of 50% of the land, he infact
\n\thas disposed of during his life time certain portion of the land
\n\tleaving only 3 acres and 20 gunthas.  It is in this background and
\n\tconsidering the details with regard to the rounds of litigation,
\n\twhen there is no basis or foundation, particularly when it could be
\n\tseen from the record itself, that the deceased Vashrambhai
\n\tThobanbhai had during his life time disposed of the property.
\n\tInfact, while <\/p>\n
filling
\n\tthe form under the ULC Act, he has shown his land to the extent 3
\n\tacres and 20 gunthas only.  Meaning thereby, he is aware about
\n\thaving disposed of the other parcel of the land.  Therefore, the
\n\tfamily settlement or the arrangement of 1965    could also be
\n\tconsidered on the basis of the evidence at the trial and the Entries
\n\twhich have been made, including the sale deed, could be examined in
\n\tlight of the evidence.  Therefore, considering these aspects, though
\n\tnormally status quo is ordered to be maintained with regard to the
\n\tdisputed property \/ land so that irreversible situation is not
\n\tcreated and the rights of both the parties are protected or
\n\tmaintained, the facts do not suggest for such a case.  Therefore,
\n\tthough normally status quo is required to be maintained so that
\n\tprejudice is not caused to either side and it is not resulting into
\n\tonly a paper decree or the rights of the party are not created
\n\tmaking any further complication.  There has to be a prima facie case
\n\tor rather a strong prima facie case as discussed above in the facts
\n\tof the case when the Appellants – Original Plaintiffs who have
\n\tfailed to establish any such prima facie case, it cannot be said
\n\tthat the impugned order passed below Application (Exh.5) in Special
\n\tCivil Suit No.29 of 2011 dated 7.6.2011 is erroneous which would
\n\tcall for any interference in the present Appeal from Order.  The
\n\tpresent Appeal from Order therefore  deserves to be dismissed and
\n\taccordingly
\n\tstands dismissed.\n<\/p>\n
\t(Rajesh H.\n<\/p>\n
\tShukla,J)<\/p>\n
 FURTHER
\nORDER<\/p>\n
\tAfter the
\norder was pronounced, learned Advocate Mr. A.R.Thacker for the
\nAppellants requested for stay of the operation of the order and
\ncontinuance of interim relief, which has been operating till today,
\ngranted by the Court below to enable his client to approach the
\nHon’ble Apex Court.\n<\/p>\n
\tThe
\nrequest as prayed for is granted.  The interim relief, which has
\nremained operative till today, shall remain operative upto
\n21.10.2011.\n<\/p>\n
(Rajesh H.\n<\/p>\n
Shukla,J)<\/p>\n
Jayanti*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Abhelbhai vs Jaydev on 20 September, 2011 Author: Rajesh H.Shukla, Gujarat High Court Case Information System Print AO\/252\/2011 11\/ 11 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 252 of 2011 ========================================= ABHELBHAI ARJANBHAI JADEJA & 1 – Appellant(s) Versus JAYDEV MAVJI – THRO’ POA HOLDER, ANILBHAI […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-59583","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAbhelbhai vs Jaydev on 20 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abhelbhai-vs-jaydev-on-20-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abhelbhai vs Jaydev on 20 September, 2011 - 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