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2012 (3) GCD 2052 (Guj)
Hon’ble Mr. Justice Sonia Gokani
Anilbhai Ishwarbhai Patel & Ors.
Versus
Ushaben Hargovindbhai Patel & Anr.
Special Civil Application No. 10754 of 2010—Decided on 03/08/2012
Constitution of India, 1950 — Article 227 — Scope of — Order of mutation in favour of legal heirs of original ancestor by revenue — Civil suit — Injunction order to stay mutation entries — Challenge — Sustainability — Common ancestor of petitioner and respondent was P who bequeathed all his property on parties by registered Will — One H was the party who received his share and land was mutated in his name by entry No. 1067 — After the death of H respondents got the land mutated in their name after ten years vide entry No. 1566 — At that point one party I filed RTS appeal and challenged that mutation and go the impugned order of mutation in favour of heirs of original ancestors by revenue — The Courts below have elaborately dealt with all the issues raised and passed the disputed order of stay of mutation entries in the record — At the injunction stage in the circumstances both the Courts below can not be said to have committed any error to intervene under Article 227 of Constitution.
Held :
The fact is not disputed that neither the Will nor entry was questioned by any of the heirs of Parbhubhai at any stage. Again, as rightly pointed out from respondents’ side that Special Civil Suit No. 54 of 2007 instituted through the sister of petitioner and daughter of deceased Prabhubhai can be a proxy litigation but, pendency of that suit would also not in any manner tilt the balance in favour of the present petitioners who prima facie appear to have their share of bequeaths given through the will of common ancestor. Again, merit of the claim of plaintiff of that suit also can not be determinative of discretionary relief in favour of petitioners herein who have failed to established their prima facie case both on the grounds of equity and gross delay as well and consequently, do not succeed to satisfy this Court to invoke powers of supervisory jurisdiction. Attempt to get their names mutated in the revenue record in respect of land which was given to deceased Hargovindbhai, atleast at an interim stage in the above circumstances if is estopped, both the Courts cannot be said to have committed any error much less any illegality causing miscarriage of justice for this Court to intervene under Article 227 of the Constitution of India. Neither there is any jurisdictional error nor is there excess exercise of power by both the Courts.
[Para 16]
Law Laid Down :
Where there is concurrent findings of both Courts below confirming the injunction the Court should be very slow in disturbing the equilibrium.
Sonia Gokani, J.—The petitioners herein are the original defendants in Regular Civil Suit No. 72 of 2000 preferred by the respondents herein, who are aggrieved by the order of the learned 5th Additional Civil Judge (SD) Surat, passed below Exh. 5 in favour of the respondents herein as also confirmed by the learned 5th Additional District and Sessions Judge, Surat in Civil Misc. Appeal No. 49 of 2003.
2. To understand the controversy between the parties and to briefly state the fact-the petitioner and respondents have a common ancestor namely Parbhubhai Patel who passed away on 15th November 1971 (the pedigree of which is at Page No. 25 of the memo of this petition). Shri Parbhudas Kuvarji Patel executed a registered Will and bequeathed all his properties on the parties. The parties mutated their names in the revenue record on the basis of such Will.
3. Shri Ishwarbhai Parbhubhai Patel (since deceased) who was the original Defendant No. 1 in the said suit, had filed RTS Appeal No. 25 of 1996 before the Deputy Collector, Choryasi Prant Surat, challenging Entry No. 1566 mutated in the revenue record vide order dated 3rd February 1993 in respect of revenue Survey No. 262, 29-paiki, 7/1-paiki,33/3-paiki,10/3-paiki, situated in village Mora, Taluka Choryasi, district-Surat. This entry was favouring the respondents; as the heirs of one of the sons of deceased Parbhubhai Hargovindbhai Patel. Vide order dated 11th December 1997, the Deputy Collector, Surat setaside such an entry and ordered names of the legal heirs of deceased Parbhubhai to enter in the revenue records. The Respondent No. 3 herein preferred revision Application No. 34 of 1998 before the District Collector, Surat, which dismissed such revision vide order dated 1/8/30 November 1999 and thereafter Entry No. 1854 was mutated in the revenue record for the said lands in question.
4. The said regular civil Suit No. 72 of 2000 is filed by the respondents on 21st February 2000 praying inter alia that the orders passed by the Deputy Collector and District Collector Surat be declared null and void and the same shall not be implemented, with a further prayer that the petitioner do not have a right to get their names mutated in the revenue record on the basis of such order.
5. It is the case of the respondents in the said Civil Suit that Parbhubhai executed a Will on 16th September 1997 and as per the said Will different shares have been bequeathed to four sons of the deceased Parbhubhai Patel namely; (1) Hargovindbhai Patel; (2) Ishwarbhai Patel; (3) Jaikishanbhai Patel and (4) Thakorebhai Patel and all the heirs have got their properties in their respective names and no ambiguity existed, either in covenant or in giving effect to the said will.
6. Aggrieved by such move, at a belated stage, an application for injunction was preferred below Exh. 5 by the respondents herein which was allowed by the learned Civil Judge inter alia directing that orders passed by the Deputy Collector and the District Collector shall not be implemented and no entries shall be made in the revenue record on the basis of the same.
7. Aggrieved by the same, when the petitioner preferred Civil Misc. Appeal No. 49 of 2003, the same came to be dismissed on 31st August 2009 by the learned 5th Additional District and sessions Judge, Surat.
Learned Senior Advocate Shri B.B. Naik appearing for the original defendants vehemently submitted that entry mutated in the name of Hargovindbhai was not on the basis of the Will but on the basis of consent as “no objection endorsement” was issued by other heirs of Parbhubhai and therefore, it can be said that such entry was not the result of execution of the Will. Moreover, daughter of Parbhubhai filed Special Civil Suit No. 54 of 2007, which is still pending.
8. He further urged that admittedly the possession is with the plaintiff but the suit property is required to be kept intact till the disputes between the parties are adjudicated effectively. Yet another ground he has
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