Point of Law: Aspect cannot be said to be barred by the principle of resjudicata more particularly when the revenue record was clearly indicating otherwise than what was held by the Magistrate in previous round of litigation.

ORDER :

1. This petition under Article 226 of the Constitution of India is filed by the petitioner with following prayer:-

“7(b) This Hon’ble Court may be pleased to issue appropriate writ, direction or order quashing and setting aside the impugned order dated 04.05.2018, passed by the learned Secretary [Appeal] Revenue Department, Ahmedabad in Revision Application No.MVV/HKP/BHCH/2/2017, and further be pleased to pass necessary order to enter the name of the petitioner in revenue records as one of the co-sharer of the properties in capacity of legal heirs of the deceased Shabbir Asmal Adam and also to delete the names of the heirs of Adam Isa from the revenue records so far as the properties of the deceased Asmal Adam is concerned, as prayed.”

2. The dispute pertains to several parcels of lands of village Navetha, Taluka and District: Bharuch. This parcel of land on the basis of being a tenant was entered in the name of one Aslam Adam Ise and was given right as a tenant under the Tenancy Act. The petitioner has filed Revision proceedings in her capacity of wife of Late Shabbir Aslam Adam, son of Aslam Adam who was an agriculturist and in whose name land bearing revenue Block Nos.39, 56A, 89 and 133 was entered in the year 1963 as tenant. It is submitted that upon the death of Aslam Adam in the year 1980, agricultural lands running in the name of Aslam Adam were entered into the name of legal heirs of Aslam Adam.

3. It is the case of the petitioner that respondent No.3.2-Sarafaraj Musa Adam, who is son of Musa Adam, being a real brother of Alsam Adam claimed that the respondent No.3.2 and other family members of brothers of Aslam Adam had Right in the agricultural land running in the name of Aslam Adam and either by mistake or mischief, these rights into the agricultural lands in the name of Aslam Adam were extinguished without following process of law. However, such claim of respondent No.3.2 was not accepted in the year 2011 and by a communication dated 30.11.2011, it was stated that Adam Ise who is father of Aslam Adam and is other brothers including Musa Adam were not declared as a tenants of the lands in question and therefore, other sons of Adam Ise could not claim any right, title or interest in the lands belonging to their brother Aslam Adam Ise.

4. It is submitted that therefore, rightly upon the death of Aslam Adam in the year 1980, revenue entry No.1190 was posted in the revenue record on 03.02.1982 and was certified by which names of legal heirs of Aslam Adam i.e. Yunus Aslam Adam, (2) Shabbir Aslam Adam, (3) Dilawar Aslam Adam, and (4) Mehmuda Aslam Adam were accepted, except for this there were no other rights of any individuals, including the respondents.

5. It is argued on behalf of the petitioner that despite the order passed in the year 1982, once again the respondent No.3.2-Sarfaraj Musa Adam, son of Late Musa Adam and bother of Aslam Adam made an application for entering the name of respondent No.3.2 and other family members in revenue record as legal heirs of Aslam Adam. The application came to be rejected and the appeal preferred against the order of the Mamlatdar was also rejected. It is thereafter, other brothers of Aslam Adam and their heirs again filed an Appeal before the learned Assistant Collector, once again challenging the order of the Mamlatdar. This was barred by the principle of resjudicata and while passing the order, the Assistant Collector remanded the case back to the Mamlatdar for the purpose of verifying the entry No.581 dated 20.04.1961.

6. It is submitted that immediately thereafter, included the land being revenue Block Nos.69, 56/A, 89 and 133 in the property of Aslam Adam despite the fact that such property was running in the name of Aslam Adam under the Tenancy Act and not under the ownership right as if the same were ancestral properties. The claim of the petitioner is therefore, the land of aforesaid block numbers were individual properties of Aslam Adam under Tenancy laws and not other