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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Bebiben Alias Babiben Jagubhai - Appellant
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 5730 of 2020
Decided on : 15-03-2022
Gujarat Land Revenue Code, 1879 - Section 135(c) - Limitation Act, 1963 - Section 3 (1) - Registration Act, 1908 - Section 17(i)(b), 49 - Partition Deed - Gift Deed - Rights of heirship - Petition pertains to land is alleged to be standing in revenue records - It is alleged that petitioner and respondent nos.10 and 11 are daughters and respondent no.4 is son and brother of respondent no.10 and 11 - It is alleged that in year 1977, an entry was mutated in records alleging has given aforesaid land to respondent no.4, which was entered in revenue records - It is alleged that this entry was based on Partition Deed - Document was not a Partition Deed but it was a Gift Deed - It is alleged that had died and thereafter his heirs inherited property and ultimately their names were mutated in revenue record on basis of pedigree - It is alleged that, revenue entry came to be mutated wherein names of legal heirs were reflected - It is also alleged that, in said entry, it is mentioned that petitioner and respondent nos.10 and 11 have relinquished their shares - It is alleged that had died and upon her death, her interest in said land was inherited by three sisters and they have become co-owners of her interest in said land – Held, petitioner has contended that upon death of her mother, rights of heirship would dwelve upon her daughters under Hindu Succession Act, and private respondent has no right to challenge entry made in revenue records after long delay - At this stage, it is pertinent to note that all contentions raised in this petition are also at large before Civil Court in a suit filed by petitioner herself and other two suits filed by respondents, who are heirs - Question raised regarding cancellation of Sale Deed in favour of respondent no.3 is also before Civil Court - Thus, dispute raised by petitioner is pending before Civil Court and Civil Court will decide same in accordance with law - Civil rights regarding property in question would definitely be decided by Civil Court - It appears from impugned order of learned SSRD that it has set aside order of subordinate revenue authority only on ground that all contentions raised by present petitioner are pending before Civil Court for its decision and, therefore, until decision is arrived at by Civil Court, no order ought to have been passed by subordinate Revenue Authority - Observations of learned SSRD that since matter is sub-judice with Civil Court, revenue authority should wait till then, is just and proper - Further all questions which have been raised by petitioner are disputed questions of facts - Therefore, under provisions of Article 226 and 227 of Constitution of India, it cannot be decided in present petition and proper remedy is to get it adjudicated from Civil Court - Now, admittedly petitioner herein as well as other respondents have already moved Civil Court for adjudication of civil rights of parties - Petition is dismissed.
JUDGMENT :
A.P. Thaker, J.
1. Being aggrieved and dissatisfied with the order passed by the Secretary of State Revenue Department in Revision Application No. 104 of 2019 (MVV/HKP/ST/104/2019) dated 11.02.2020, the petitioner has filed this petition under Articles 226 and 227 of the Constitution for the following reliefs:-
(B) That pending the hearing and final disposal of this petition, the Hon'ble Court be pleased to stay the operation and implementation of order dated 11.01.2020 passed by the Secretary, State Revenue Department(Appeals) in Revision Application No. 104 of 2019 (MVV/HKP/ST/104/2019) and be pleased to give a direction that no changes be made in the revenue records till the disposal of this petition;
(C) For ad-interim relief in terms of prayer B;
(D) For costs;
(E) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case;"
2. The brief facts of the case, as emerging from the petition are as under:-
2.1 The petition pertains to land bearing survey no. 38/2 (Block number 97) admeasuring 4957 sq.mts situated at Village Sarsana, Taluka-Majura and District-Surat (hereinafter referred to as "the said land"). The said land is alleged to be standing in the name of Gandabhai Ranchhodbhai Patel in the revenue records. It is alleged that the petitioner and respondent nos.10 and 11 are daughters of Late Gandabhai and Late Mrs. Lalitaben Gandabhai Patel is wife of Late Gandabhai, and respondent no.4 is the son of said Gandabhai and brother of respondent no.10 and 11. It is alleged that in the year 1977, an entry was mutated in the records alleging that Late Gandabhai has given aforesaid land to respondent no.4, which was entered in the revenue records. It is alleged that this entry was based on Partition Deed. The document was not a Partition Deed but it was a Gift Deed. It is alleged that on 27.09.1984, Gandabhai had died and thereafter his heirs inherited the property and ultimately their names were mutated in the revenue record on the basis of the pedigree. It is alleged that on 16.02.1986, revenue entry no.258 came to be mutated wherein names of legal heirs of late Gandabhai were reflected. It is also alleged that, in the said entry, it is mentioned that the petitioner and respondent nos.10 and 11 have relinquished their shares. It is alleged that on 30.12.1997 Lalitaben had died and upon her death, her interest in the said land was inherited by three sisters and they have become the co-owners of her interest in the said land.
2.2 According to the petitioner, on 31.03.2008, respondent no.4 has executed a Sale Deed in favour of respondent no.3 of the said land. It is alleged that respondent no.4 was not the owner of entire land, as sisters being the daughters of Lalitaben have also their shares in the land. Consequently, respondent no.3 did not get any title qua the shares of the sisters.
2.3 It is further alleged that on 24.06.2009, revenue entry no. 1003 was made in the name of Late Lalitaben and respondent no.4 as well as the children of respondent no.4. This entry was initially certified, however, later on it was cancelled. It is further contended that in the year 2010, respondent no.3 has made an attempt to remove Lalitaben's name from the revenue records. It is alleged that normally dead person's name is removed by bringing his/her heirs and after issuance of notice, but, in this case, no notice was issued to the heirs of Late Lalitaben i.e. her daughters. It is also alleged that attempt was made after 15 years
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