1996 Supreme(Guj) 103

Gujarat High Court
Judgename :A.N.Divecha
RATILAL CHUNILAL SOLANKI - Appellant
Versus
SHANTILAL CHUNILAL SOLANKI - Respondent
S.C.A. 1012 of 1996
Decided On : 02/28/1996

Headnote:(a) Tenancy & Land Laws - Disputed question of title to Land - Jurisdiction - Revenue authorities can not decided such questions - Jurisdiction to decide such question lies with Civil Court - Authorities transgressed their jurisdiction in mutating entries on basis of a will when there was dispute with regard title.

       It cannot be gainsaid that, when a dispute as to the title to the properties mentioned in the revenue records arises, the parties have to go to the competent Civil Court for resolution of their such dispute. They cannot convert the mutation proceedings under Chapter 8A of the Code into a battlefied for the purpose. The revenue authorities are incompetent to decide the disputed question of title to any property mentioned in any revenue record.

       [Para 4]

       It clearly transpires from the notice at Annexure-A to this petition that the Talati-cum-Mantri of village Khaerlav was informed that the petitioners would dispute any entry to be mutated in the revenue records pertaining to the disputed lands on the strength of the alleged will stated to have been executed by the deceased on 12th September, 1980. It transpries therefrom that its copy was sent to respondent No. 8. It would therefore mean that the petitioners herein clearly disputed the title to the disputed lands left behind by the deceased flowing to the legatees under the testamentary document stated to have been executed by the deceased on 12th September, 1980. Any attempt to get the disputed lands mutated in the name of the legatees under the alleged Will would involve a disputed question of title. As stated hereinabove, the revenue authorities are not competent to resolve any disputed question of title to any property mentioned in any revenue record. The parties ought to have been directed to approach the competent Civil Court for resolution of their such dispute. It is unfortunate that, instead of adopting this course, respondents Nos. 8 and 7 have more or less decided the question of title flowing from the alleged testamentary document purported to have been executed by the deceased on 12th September 1980. This position becomes clear from the evidence recorded in the revenue proceedings including examination of the attesting witness of the alleged testamentary document. If respondents Nos. 1 to 6 or any of them wanted to propound the will and claim legacy in their name with regard to the disputed lands and if mutation in their names was objected to by anyone, more particularly by the petitioners by their notice at Annexure-A to this petition, the revenue authorities ought to have directed the propounders of the will to get the genuineness and validity of the will to be decided by the competent Civil Court. The contrary approach of the revenue authorities as reflected in the impugned orders cannot therefore, be sustained in law.

       [Para 5]

       (b) Constitution of India, 1950 - Arts. 226 & 227 - Writ of certiorari - Requirement of Law is that author of order of such judicial or quasi judicial proceeding has to be impleaded as a party respondent - Considering the relief claimed it could not be said that this petition under Art. 226 is not maintainable and it has to be treated as one under Art. 227 only - Held, invocation of jurisdiction under Art. 226 is justified.

       It is difficult to agree with the submission urged before me by learned Advocate Shri Marshall for the contesting respondents that this petition under Art. 226 of the Constitution of India is not maintainable and it has to be treated as the one under Art. 227 thereof only. It may be mentioned that the petitioners have prayed for a writ of certiorari against the author of the order at Annexure-E to this petition as affirmed in further revision by the order at Annexure-F to this petition. It cannot be gainsaid that a writ of certiorari lies against any judicial or quasi-judicial proceeding. The requirement of law in that regard would be that the author of the order of such judicial or quasi-judicial proceeding has to be impleaded as a party respondent. It may be mentioned at this stage that the petitioners have also challenged the order passed by and on behalf of the Mamlatdar of Pardi (respondent No. 8 herein) on 15th January, 1982, certifying the mutation entry in question. The title cause of this petition clearly shows that the author of the aforesaid order of 15th January 1982 is also impleaded as respondent No. 8 as well as the author of the order at Annexure-E to this petition is impleaded as respondent No. 7. In that view of the matter, the invocation of the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India cannot be said to be misconceived.

       [Para 7]