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2021 Supreme(Guj) 41
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Madhuben Wd/o Vinodbhai Mehta – Petitioner
Versus
Prabhatbhai Jivabhai Patel – Respondent
Civil Application (for Vacating Interim Relief) No. 1 of 2020 With Civil Application (for Amendment) No. 2 of 2020 With Civil Application (for Bringing Heirs) No. 3 of 2020 In R/Special Civil Application No. 8879 of 2020
Decided On : 22-01-2021
Advocate Appeared:
For the Petitioner: Mr. Amar N Bhatt
For the Respondent: Mr. Nandish Y Chudgar, Mr. Aum M Kotwal, Ms. Shree Kotwal
Point of Law: It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance
Headnote:
Constitution of India, 1950 - Articles 226 and 227 - Suit for Cancellation of Sale Deeds - Seeking Declaration and Injunction - Petition is brought before Court, is that land was purchased by Jituji from the original owner - Jituji died leaving behind widow and three daughters as classone heirs - Entry came to be mutated only in favour of one daughter of deceased Jituji and as such, it was recorded that a new entry be made to enter names of widow as well as left daughters of deceased Jituji though names of three daughters and widow should have been recorded in revenue record, one Entry was mutated in names as sons of brother of Jituji - Appeal was filed by one legal heir of deceased Jituji for cancellation of original entry and order cancelling it was passed by Prant Officer and the direction was given to verify names of legal heirs of Jituji, one another entry was made being Entry recording above order and then, again, an entry was effected being Entry recording names of persons –
Finding of the Court:
Court have examined all issues which have been raised in the petition, but in view of aforesaid recent trend about availing of alternative remedy, the Court has refrained from examining the contentions of the petitioners since all those issues including point of authority of Collector to pass an order can also be examined by Forum which is available to petitioners. Accordingly, without expressing any opinion on merits, this Court is not inclined to accept the petition and the same accordingly stands dismissed - in view of the fact that the interim relief is operating in favour of the petitioners right same shall remain operative till the petitioners approach the alternative remedy forum by way of preferring appropriate proceedings including an application for seeking interim relief –
Result: Petition dismissed
JUDGMENT :
Present petition under Articles 226 and 227 of the Constitution of India is filed for the purpose of seeking following reliefs :
“(A) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the record and proceedings of the RTS Revision No. 148 of 2019 and be further pleased to quash and set aside the order dated 03/07/2020 passed by the Collector at Annexure- – A hereto in the said Revision.
(B) petition, During the pendency and final disposal of this
(i) stay the operation, implementation and execution of the order dated 03/07/2020 passed by the Collector at Annexure-A hereto.
(ii) restrain the Respondent Authorities from effecting any changes in the revenue records pertaining to the land bearing Block No.397 in Village Kudasan, District Gandhinagar on the basis of the Order dated 03/07/2020 at Annexure-A hereto.
(C) Award cost of this Petition.
(D) Grant such other and further reliefs as may be deemed just and expedient.”
2. The premise, on which the present petition is brought before the Court, is that the land bearing Block Nos. 395 and 397 of Village Kudasan was purchased by Jituji Vajesang Solanki from the original owner Punjabhai Girdharbhai Suthar. On 06.06.1957, Jituji died leaving behind the widow and three daughters viz. Shantaba, Sarbaben and Hejaba as classone heirs. On 30.06.1957, Entry No. 762 came to be mutated only in favour of one daughter of the deceased Jituji and as such, it was recorded that a new entry be made to enter the names of the widow as well as left daughters of the deceased Jituji. On 28.02.1967, though the names of three daughters and the widow should have been recorded in the revenue record, one Entry No. 1045 was mutated in the names of Hameersinh Jaisinh and Nathusinh Jaysinh as sons of brother of Jituji. On 25.03.1989, after the death of said Hameersinh, the names of his heirs were entered in the revenue record vide Entry No. 1963. Against the said names viz. Hitendrasinh Hamirsinh, Yashwantsinh Hamirsinh, Chandravijaysinh Hamirsinh and Manharba – widow of Hamirsinh, legal heirs of deceased Hamirsinh, one of the daughters of Jituji filed RTS Proceedings No. 16 of 1989 for setting aside the Entry No. 1045 which was dismissed on account of non-joinder of necessary party and then on 16.08.1991, the heirs of the deceased Hamirsinh executed a sale deed for both the lands in favour of Vadibhai Bababhai Patel, Ishwarbhai Ambalal Patel and Tribhuvan Ambalal Patel for which Entry No. 2175 was made in the revenue record. On 14.09.1993, said Vadibhai and others have further executed a sale of both the lands in favour of one Pradip Rasesh Patel and then, the entry was mutated for that transaction being Entry No.2318 in the revenue record. On 26.05.1995 again, RTS Appeal SR No.35 of 1996 was filed by one legal heir of the deceased Jituji for cancellation of original entry No.1045 and the order cancelling it was passed by the Prant Officer and the direction was given to verify the names of legal heirs of Jituji. On 03.06.1997, one another entry was made being Entry No. 2680 recording the above order dated 26.05.1997 and then, on 03.06.1997 again, an entry was effected being Entry No. 2681 recording the names of following persons qua the land in question :
1. The heirs of Shantaba
a. Hiraben Lalji Dabhi
b. Bhikhaji Lalji Dabhi
c. Kesarba Lalji Dabhi
2. The heirs of Sardaben
a. Sendhaji Jivanji Gohil
b. Mafaaji Jivanji Gohil
c. Parthiji Jivanji Gohil
d. Jivuba Jivanji Gohil
3. The heirs of Hejaba
a. Jashuba Varvaji Gohil
b. Pethuji Varvaji Gohil
c. Ramba Varvaji Gohil
d. Bhikhaji Varvaji Gohil
e. Antarba Varvaji Gohil
f. Vikramji Varvaji Gohil
2.1 Thereafter on 07.06.1997, according to the petitioners, the predecessors of them i.e. petitioners Nos.1 to 4 Shri Vinodbhai Mehta purchased the land in question with petitioner No.5 and one Bababhai Keshavlal Patel from the above persons vide registered sale deed for which Entry No. 2683 was made. Around the same time, Block No. 395 was sold
