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2020 Supreme(Guj) 399
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sangeeta K. Vishen, J.
Dahyabhai Chhitubhai Rathod & Others - Petitioners
Versus
State of Gujarat Thro Secretary & Others - Respondents
R/Special Civil Application No. 8618 of 2011
Decided On : 28-02-2020
For the Petitioner: Mr. M.P. Shah, Ms. Kruti M. Shah
For the Respondent: Ms. Vrunda Shah, Assistant Government Pleader, Mr Chetan K. Pandya
Point of Law:
Case of Dr. Chiranji Lal vs. Hari Das (supra), the issue before the Apex Court was when would the period of limitation for execution of a decree becomes enforceable i.e. from the date when the decree is made or when the decree is engrossed on the stamp paper which, out of these two, would be the starting point of limitation.
Headnote:
Limitation Act - Article 136 - Article 136 - Constitution of India,1950 - Articles 226 and 227 - Petition has been filed praying for quashing and setting aside order Additional Secretary Revenue Department revision application filed by petitioners has been rejected - Agricultural lands bearing block numbers situated at village were in name of widow of predeceased land in question was in possession of widow of since year - Somewhere in year Regular Civil Suit was filed by widow of before court of Civil Judge - It appears that in interregnum execution proceedings were filed by as a result whereof remaining payment was made - Thereafter executed a release deed in favor of petitioners and others - In petition said release deed it has been categorically recorded that payment of total amount of has been made and that has released her right over land in question - It has also been recorded that there is no dispute as regards any outstanding amount to be paid to as per decree - It is recorded in said release deed that neither nor her heirs will have any right of whatsoever nature over land in question and even if any rights are claimed said rights will be invalidated by virtue of said document - It further records that it will be father of petitioners and who will have all rights to use property as owner of property said release deed has been registered with office of Sub-Registrar - Held, No order of court directing the parties to furnish stamp papers for purposes of engrossing decree - Contention raised respondents was to effect that a decree was passed in a suit for partition cannot be acted upon which means it cannot be enforced until engrossed on stamp paper - Apex Court while allowing appeal held that starting of period of limitation for execution of a partition decree cannot be made contingent upon engrossment of decree on stamp paper said judgment cannot be made applicable to facts of present case for reason that in petitioners are not enforcing or executing decree but as discussed petitioners are asserting their right arising from release deed - Judgments by respondents have no relevance to present case considering petitioners are not seeking execution of decree so as to attract Article of Limitation Act - Court discussed stand taken by order Collector vide order Additional Secretary Revenue Department order is illegal and bad in law and deserves to be quashed and set aside - For foregoing reasons order passed by Collector Additional Secretary Revenue Department quashed and set aside and order Deputy Collector is confirmed - Petition allowed (Paras 22 and 24)
Facts of the Case:
On 28.1.1971, a settlement purshis came to be executed between Bai Parvati, widow of Umedsinh on the one hand and Chhitubhai Nathubhai and Pratapsinh Nathubhai on the other wherein, it was agreed that an amount of Rs.13,151/- will be paid to Bai Parvati. It was agreed that out of the said amount, an amount of Rs.6,500/- will be paid on 28.1.1971 itself and out of the remainder amount of Rs.6,651/-, Rs.3,000/- will be paid on 31.10.1971 and Rs.3,651/- will be paid on 1.4.1972. Upon making such payment, Bai Parvati will execute a release deed and upon execution of the release deed.
Finding of the Court:
No order of court directing the parties to furnish stamp papers for purposes of engrossing decree - Contention raised respondents was to effect that a decree was passed in a suit for partition cannot be acted upon which means it cannot be enforced until engrossed on stamp paper - Apex Court while allowing appeal held that starting of period of limitation for execution of a partition decree cannot be made contingent upon engrossment of decree on stamp paper said judgment cannot be made applicable to facts of present case for reason that in petitioners are not enforcing or executing decree but as discussed petitioners are asserting their right arising from release deed - Judgments by respondents have no relevance to present case considering petitioners are not seeking execution of decree so as to attract Article of Limitation Act - Court discussed stand taken by order Collector vide order Additional Secretary Revenue Department order is illegal and bad in law and deserves to be quashed and set aside - For foregoing reasons order passed by Collector Additional Secretary Revenue Department quashed and set aside and order Deputy Collector is confirmed.
Result: Petition allowed
JUDGMENT :
1. The present writ petition, has been filed under Articles 226 and 227 of the Constitution of India inter alia praying for quashing and setting aside the order dated 25.5.2011 passed by the Additional Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No.MVV/HKP/TP/8/2009 whereby, the revision application filed by the petitioners has been rejected.
2. The brief facts are as under:-
2.1 The agricultural lands bearing block numbers 17, 28, 20,345 and 1150 (hereinafter referred to as “the land in question”) situated at village Valod, Taluka Valod, were in the name of Bai Parvati, widow of Umedsinh Nathusinh. Umedsinh Nathusinh predeceased Bai Parvati. The land in question was in possession of Bai Parvati, widow of Umedsinh Nathusinh since the year 1948. Somewhere in the year 1969, Regular Civil Suit No.198 of 1969 was filed by Bai Parvati, widow of Umedsinh Nathusinh before the court of Civil Judge (J.D.), Bardoli.
2.2 On 28.1.1971, a settlement purshis came to be executed between Bai Parvati, widow of Umedsinh on the one hand and Chhitubhai Nathubhai and Pratapsinh Nathubhai on the other wherein, it was agreed that an amount of Rs.13,151/- will be paid to Bai Parvati. It was agreed that out of the said amount, an amount of Rs.6,500/- will be paid on 28.1.1971 itself and out of the remainder amount of Rs.6,651/-, Rs.3,000/- will be paid on 31.10.1971 and Rs.3,651/- will be paid on 1.4.1972. Upon making such payment, Bai Parvati will execute a release deed and upon execution of the release deed, the land in question will be of the ownership of Chhitubhai Nathubhai and Pratapsinh Nathubhai and petitioners. The said settlement purshis was filed before the Civil Judge (J.D.), Bardoli with a request to draw a decree in terms of the said settlement. Accordingly, the Civil Judge (J.D.), drew the decree in terms of the settlement and passed a decree.
2.3 It appears that in the interregnum, execution proceedings were filed by Bai Parvati and as a result whereof, the remaining payment was made. Thereafter, on 27.5.1974 Bai Parvati executed a release deed in favour of the petitioners and others. In the said release deed, it has been categorically recorded that the payment of the total amount of Rs.13,151/- to Bai Parvati has been made and that Bai Parvati has released her right over the land in question. It has also been recorded that there is no dispute as regards any outstanding amount to be paid to Bai Parvati as per the decree. It is recorded in the said release deed that neither Bai Parvati nor her heirs will have any right of whatsoever nature over the land in question and even if any rights are claimed, the said rights will be invalidated by virtue of the said document. It further records that it will be the father of the petitioners and petitioners, who will have all the rights to use the property as the owner of the property. The said release deed has been registered with the office of the Sub-Registrar, Bardoli.
2.4 Bai Parvati died intestate on 5.12.1982 leaving behind the sole heir Laxmiben. In the year 2007, Laxmiben Umedsinh Thakor, daughter of Bai Parvati and Umedsinh Thakor, made an application to Talati-cum-Mantri along with pedhinama dated 25.7.2007, panchkyas, statement and affidavit inter alia requesting to enter her name as the only heir of Bai Parvati.
2.5 Apropos which, entry number 12838 was mutated in the revenue record on 26.4.2007 in favour of Laxmiben recording the heirship. Mutation of the said entry was objected to by the petitioners. The said entry number 12838 dated 26.4.2007 came to be registered in the dispute register and thereafter, notices came to be issued to the parties. The office of the Mamlatdar, Valod, District Tapi passed an order dated 7.2.2008 rejecting the objection application of the petitioners and certified the mutation entry number No.12838 dated 26.4.2007.
2.6 The Mamlatdar has observed that since the year 1948 the name of Bai Parvati widow of Umedsinh is reflec
