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Kureshi Hussainbhai Motibhai and ors. Vs. Saiyad Sidar Kesharbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case Number Spl. C.A. No. 1413 of 1978
Judge
Reported in(1985)1GLR139
ActsGujarat Land Revenue Rules, 1972 - Rules 106, 107, 107(1) to 107(5), 108, 108(5), 108(6) and 108(6A); ;Bombay Land Revenue Code, 1879 - Sections 53, 135B, 135C, 135D, 135H, 135H(3), 135J, 135L, 135L(2) and 212
AppellantKureshi Hussainbhai Motibhai and ors.
RespondentSaiyad Sidar Kesharbhai and ors.
Appellant Advocate J.R. Nanavat, Adv. for; M. M. Shah, Adv.
Respondent Advocate P.M. Raval, Adv. for the Respondent No. 1,; S.R. Divetia, Asst. Govt. Pleader for;
DispositionPetition allowed
Cases ReferredEdroos v. State of Gujarat
Excerpt:
.....from time to time with a view to harass the other side and defeat the rights of a rightful party to be settled by the civil court, and this court should clear this position so that poor cultivators like the petitioners may not be subjected to such type of harassments. 13. in the instant case, however, unfortunately the revenue authority not only failed to carry out the decision of the civil court and the decision which has been ultimately pronounced by the highest court of the state, but also allowed respondent no. 242 is concerned, have been finally adjudicated by the high court and it was clearly found at all stages in the civil courts that respondent no. 1. at this stage, it is necessary to say that when an officer like the special secretary decided the matter, it is expected..........was advanced that the revenue court alone has exclusive jurisdiction to correct the entries in the revenue records, and reference was made to section 53 of the code. section 203 of the code was also referred to, which provides for an appeal against the order of revenue officer to his immediate superior. it was sought to be argued that the jurisdiction of the civil court is completely barred. the supreme court then observed :. if we refer to section 212 of the code, the argument of the counsel for the state cannot be accepted. section 212 contemplates that whenever in this code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. if this is what finality means under section 212 it cannot be argued.....
Judgment:

S.A. Shah, J.

1. This is a second round of litigation. Respondent No. 1 lost his case before the Civil Court at all levels including this Court, and inspite of clear findings of this Court, the petitioners were subjected to harassment by summary proceedings in respect of mutation of entry in the records of rights on account of an application made by respondent No. 1 for mutating his name as the; owner of certain pieces of land under Karami Lekh No. 56 alleged to have been executed by the Begam Saheba of erstwhile Jainabad State, in his favour.

2. Petitioners Nos. 1 and 2 had purchased land bearing survey No. 241 situated in the Sim of Jainabad village by a registered sale-deed dated 18-5-1955 from the father of respondent No. 1. Similarly, petitioner No. 3 also purchased survey No. 37 situated in the same village from the father of respondent No. 1 by a registered sale-deed dated 18-1-1955.

3. Respondent No. 1 raised a dispute and threatened petitioners Nos. 1 and 2, and under the apprehension of dispossession they filed a suit, being Civil Suit No. 95 of 1960, in the Court of the learned Civil Judge, Junior Division, Bajana, against respondent No. 1 for a permanent injunction restraining him from disturbing the possession of the petitioners. As a counter-blast, respondent No. 1 also filed a suit, being Civil Suit No. 120 of 1960- against petitioners Nos. 1 and 2 in that very Court for possession on the ground that the said fields were mortgaged by him to petitioners Nos. 1 and 2. The suit of petitioners Nos. 1 and 2 was decreed, and the suit of respondent No. 1 was dismissed. Appeals filed by respondent No. 1 against the decision in both the aforesaid suits in the District Court were also dismissed on, 24-11-1961. Second appeals, being Second Appeals Nos. 171 and 172 of 1963 filed in this Court by respondent No. 1 against the said decision of the District Court were also dismissed on 6-4-1970, copy of which is produced at Annexure 'A' to the petition.

4. Respondent No. 1 having lost his case based upon the Karami Lekh of 1948, started new proceedings by making an application to the Revenue Authorities for mutation of his name as an owner in respect of survey Nos. 241 and 37 of village Jainabad on the basis of said Karami Lekh No. 56 dated 29-2-1948, which was totally a misconceived proceeding. I am told at the Bar by Mr. J. R. Nanavati, learned Advocate for the Petitioners, that such proceedings' are being taken by the parties from time to time with a view to harass the other side and defeat the rights of a rightful party to be settled by the Civil Court, and this Court should clear this position so that poor cultivators like the petitioners may not be subjected to such type of harassments.

5. In order to decide this issue it is necessary to consider the scheme of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code'). Chapter X-A of the Code contains the provisions regarding the Record of Rights, and under the provisions of section 135-B of the Code, a record of rights is required to be maintained in every village, and such record shall contain the material particulars regarding the names of all persons other than tenants who are holders, occupants, owners or mortgagees of the land or assignees of the rent or revenue thereof; the nature and extent of the respective interests of such persons and conditions or liabilities, if any, attached thereto; the rent or revenue, if any, payable by or any of such persons; and such other particulars as the State Government may prescribe by rules made in this behalf.

6. Section 135-C of the Code provides that any person who acquires by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease, or otherwise, any right as holder, occupant, owner, mortgagees, landlord or tenant of the land, or assignee of the rent or revenue thereof, shall have to report orally or in writing his acquisition of such right to the village accountant within three months from the date of such acquisition, and the village accountant shall have to acknowledge receipt thereof immediately. There is a proviso to this Section 135-C to the effect that if a person acquires the right by virtue of a registered document, he should be exempted from the obligation to report to the village accountant.

7. Section 135D of the Code provides that on receipt of such information the village accountant shall enter the same in a register of mutations and shall also make an entry therein respecting the acquisition of any right of the kind mentioned in Section 135-C of the Code which he has reason to believe to have taken place and of which a report has not been made to him under the said section. The village accountant after making an entry in the register of mutations has also to post up at the same time a complete copy of the entry in a conspicuous place in the Chavdi, and has to give written intimation to all the persons appealing from the record of rights or register of mutations to be interested in the mutation, and if any objection, is taken, he has to enter the particulars of the objection in the register of disputed cases, and any order passed while disposing of the objections entered in the register of disputed cases has to be recorded in the register of mutations by such officers and in such manner as may be prescribed by the rules made by the State Government in this behalf. Thereafter, the transfer of entries from the register of mutations to the record of rights has to be effected subject to the rules as may be made by the State Government. Further, it has been expressly provided that the entry in the register of mutations shall not be transferred to the record of rights until such entry has been duly certified.

8. The next important provision is Section 135-L of the Code. Sub-section (2) of it provides :

135-L(2). The correctness of the entries in the record of rights and register of mutations shall be inquired into and the particulars thereof revised, by such Revenue Officers and in such manner and to such extent and subject to such appeal as the State Government may from time to time by rules prescribe in this behalf.

9. The State Government has framed Rules regarding Record of Rights in Chapter XV of the Gujarat Land Revenue Rules, 1972 (hereinafter referred to as 'the Rules'). Rule 107 of the Rules provides that if an entry in the diary of mutations is disputed, then the same shall be further tested and revised by a revenue officer not lower in rank than a Mamlatdar's First Karkun. Rule 108 of the Rules provides that the disputes entered in the register of disputed cases shall ordinarily be disposed of by the Mamlatdar's First Karkun or by the District Inspector of Land Records or by any revenue officer of superior rank to that of First Karkun. Sub-rule (5) of Rule 108 of the Rules provides an appeal against an order if it is made by the Mamlatdar's First Karkun; the Mamlatdar, the District Inspector or a revenue officer of rank lower than that of a Deputy Collector, and such appeal lie to the Sub-Divisional Officer or to an officer appointed by the Collector in this behalf. Subject to the provisions of Sub-rule (C) and (6-A), the decisions of the appellate authority shall be final. There shall be no appeal against the order of the Collector, and no second appeal shall lie in any case. However, provisions of Sub-rule (6) of Rule 108 of the Rules invest power with the Collector to call for and examine the record of any inquiry or the proceedings of any subordinate officer held under Rules 106, 107 and Sub-rules (1) to (5) of Rule 108 of the Rules for the purpose of satisfying himself as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings, and he has the power to modify, annul or reverse the order as he deems fit. Similarly, Sub-rule (6-A) of Rule 108 of the Rules also invests in the State Government similar powers of provision of the order of the Collector if passed under Sub-rule (5) or (6) of Rule 108 of the Rules.

10. Section 212 of the Code, which is material for our purposes, reads:

212. Whenever in this Act it is declared that a decision or order shall be final, such expression shall be deemed to mean that no appeal lies from such decision or order. The State Government alone shall be competent to modify, annual or reverse such decision or order under the provisions of the last preceding section.

11. This very Section 212 of the Code was the subject-matter of interpretation before the Supreme Court in Sayed Mohmed Baquir El-Edroos v. State of Gujarat 23(1) Gujarat Law Reporter 42. On behalf of the State an argument was advanced that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records, and reference was made to Section 53 of the Code. Section 203 of the Code was also referred to, which provides for an appeal against the order of revenue officer to his immediate superior. It was sought to be argued that the jurisdiction of the Civil Court is completely barred. The Supreme Court then observed :. If we refer to Section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 contemplates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under Section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred.

These observations of the Supreme Court leave no room for the argument that the decisions of the revenue authority are not final and they are subject to scrutiny of the Civil Court.

12. One further fact which emerges from the scheme of the Code also requires consideration. As stated earlier, whenever there is acquisition of right, the concerned party is required to make an application for acquisition of right. Then there will be final decision after all the formalities and adjudications are over. Section 135-J of the Code provides that an entry in the record of rights, and a certified entry in the register of mutations shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefore Section 135-H of the Code provides that the plaintiff or applicant in every suit or application is required to annex to the plaint or application a certified copy of any entry in the record of rights, register of mutations or register of tenancies relevant to such land. Sub-section (3) of Section 135-H of the Code is material for our purposes. It reads :

(3) After the disposal of any case in which a certified copy of any such entry has been recorded, the Court shall communicate to the Collector any error appearmg in such entry and any alteration therein that may be required by reason of the decree or order, and a copy of such communication shall be kept with the record. The Collector shall in such case cause the entry to be corrected in accordance with the decree or decision of the Court, so far as it adjudicates upon any right required to be entered in the record of rights, register of mutations or register of tenancies. The provisions of this Sub-section shall apply also to an appellate or revisional Court: provided that, in the case of an appellate or revisional decree or order passed by the High Court the communication shall be made by the Court from which the appeal lay or the record was called for.

It is this evident that provisions of Sub-section (3) of Section 135-H of the Code leave no doubt that an entry in the record of rights has only a presumptive value, and it does not decide the rights of the parties finally, and whenever there is a dispute regarding the right, it is the Civil Court which has to decide the same finally, and the Collector has been enjoined with a duty to correct the entry in the record of rights in accordance with the decision of the Civil Court or the High Court. In other words, the Civil Court is only a statutory authority which can adjudicate and finally decide the rights of the parties, and the revenue authority is enjoined to correct the entries in the record of rights in accordance with the decision of Civil Court.

13. In the instant case, however, unfortunately the revenue authority not only failed to carry out the decision of the Civil Court and the decision which has been ultimately pronounced by the highest Court of the State, but also allowed respondent No. 1 to agitate the issue again, and as it, appears from the record, the petitioners had to go from pillar to post in vindicating their rights, though the same have been finally determined by this Court so far as petitioners Nos. 1 and 2 are concerned. Even the officers of the rank of the Collector and Special Secretary have ignored the decisions of the Civil Courts (including the High Court) and have tried to usurp the jurisdiction and sit upon the decision of the High Court as the appellate authority in spite of the knowledge that the rights of, the parties, at least so far as survey No. 242 is concerned, have been finally adjudicated by the High Court and it was clearly found at all stages in the Civil Courts that respondent No. 1 had no right, title or interest in the said property. That is why I have stated that the proceedings initiated by respondent No. 1, so far as petitioners Nos. 1 and 2 are concerned, were totally misconceived, and it was nothing but the abuse of the process of the Court.

14. Mr. J. R. Nanavati, learned Advocate for the petitioners, has drawn my attention to the effect that the application filed by respondent No. 1 was decided by the Mamlatdar against him and in favour of petitioners Nos. 1 and 2 by his order dated 3- 9-1974, and in the relevant column he has noted that the lands were never mutated in the Khata of applicant (present respondent No. 1). Even in the Civil Court the appeal of respondent No. 1 has been rejected and, therefore, it is not possible to mutate the entry in his name. Applicant (respondent No. 1) was not holding even the possession and therefore, rejected. Thereafter, there was an appeal by respondent No. 1 to the Deputy Collector, then a revision application by the petitioners before the Collector, who remanded the matter to the Mamlatdar. Again there is decision of the Mamlatdar, thereafter appeal to the Deputy Collector, and revision application before the Collector, Surendranagar, which was filed by the present petitioners. The decision in the said revision application before the Collector requires little consideration and, therefore, I reproduce the facts thereof.

15. Present petitioners who had lost before the Deputy Collector, filed the aforesaid revision application, being No. RY-R.T.S.T.V. 6-76-77, before the Collector. The Collector has taken note of several proceedings, and ultimately cornel to the conclusion that the Civil Courts at different stages have not accepted the Karami Lekh, and ultimately the Gujarat High Court, though accepted the powers of the erstwhile State to make such Karami Lekh, has held that the Karami Lekh in question was bogus and not acted upon and, therefore, whenever any dispute regarding the Lekh arises, the revenue authority has no jurisdiction to entertain the same and parties are always referred to Civil Court for final adjudication. Whereas in the instant case, the Civil Court itself has declared the said Lekh to be bogus and, therefore, nothing was required to be done as held by the Mamlatdar. The Collector, therefore, came to the conclusion that the application of respondent No. 1 was on flimsy ground and liable to be dismissed. Therefore, all the three petitioners have succeeded in revision application filed before the Collector and decided on 12-5-1977.

16. Present respondent No. 1 being aggrieved by the said decision of the Collector, filed a revision application before the Special Secretary, Revenue Department, Surprisingly, respondent No. 1 has not joined either petitioner No. 2 or petitioner No. 3 as a party, though all the previous proceedings were against all the three petitioners. The Special Secretary has taken note of the judgments of the Civil Court and has observed that the Civil Courts had negatived the rights of present respondent No. 1 and, therefore, he cannot agitate any right. Still, however, he has observed that after the case was remanded, the Mamlatdar had turned deaf ears to the decisions of the Civil Court which is not in accordance with the facts on record. Thereafter he has found fault with the Deputy Collector and observed that such an important question cannot be decided only on the basis of actual possession, and the Deputy Collector ought to have remanded the case to the Mamlatdar for decision on the strength of Karami Lekh. He has also found the judgment of the Collector erroneous. He therefore, allowed the revision application of respondent No. 1 and set aside the judgments and orders of the authorities below and remanded the case to the Mamlatdar for deciding it afresh. The said order of the Special Secretary is at Annexure 'L'.

17. In my opinion, the decision of the Special Secretary suffers from several infirmities. Revision application is filed by respondent No. 1 only against petitioner No. 1, who is the owner of survey No. 241 only, whereas petitioner No. 3 is the owner of survey No. 37, who was not before the Special Secretary and against whom no revision application was filed. Though the Special Secretary has held that he cannot examine the rights in respect of survey No. 241, he has set aside the order of the Collector in respect of that survery number 241 also. It appears to me that the Special Secretary has not applied his mind at all, and in spite of having known that the rights regarding survey No. 241 have been finally decided by the Civil Courts he has allowed the revision application filed by respondent No. 1 only against petitioner No. 1. At this stage, it is necessary to say that when an officer like the Special Secretary decided the matter, it is expected of him that he is at least clear on facts; before a decision of the Collector is set aside, he should come to the conclusion that the said decision is erroneous, and he should give reasons for reversing that decision. The Special Secretary who is dealing with revenue matters is supposed to be aware of the provisions of the Code and the decisions given by the Supreme Court. He is very much aware that the decision of a Civil Court is not only binding to the revenue authority, but the revenue authority is also enjoined to implement it by making corrections in the record of rights.

18. The matter has been heard from time to time and argued at every level twice. Mr. J. R. Nanavati for the petitioners has in terms raised a contention in the petition that the revision application before the Special Secretary filed by respondent No. 1 was only against petitioner No. 1 who was the owner of survey No. 241. Respondent No. 1 has not filed any revision application against petitioner No. 2 or 3 and, therefore, the decision of the Collector against petitioners Nos. 2 and 3 has become final. This point has been raised in paragraph 14(1) of the petition as under :

(1) That the order at Annexure 'R' made by the second respondent (Special Secretary) is violative of the basic principles of natural justice inasmuch as petitioners Nos. 2 and 3 were not made parties to the revision application. This fact was brought to the notice of the second respondent. This is therefore, a case of want or excess of jurisdiction.

In my opinion, respondent No. 2 is really not a party to the proceedings, but merely an adjudicating authority. He is not interested personally in the result of the proceedings. Such authorities are not even supposed to appear through Advocates and resist the petition unless there are special reasons requiring their attendance. However, respondent No. 2 has filed an affidavit, and in reply to para 14(1) of the petition he has stated in para 18 of the affidavit as under:

18. With respect to averments made in para 14(1) of the petition it is submitted that the petitioner No. 1 was a party to the petition and therefore he could not have any grievance. Regarding petitioner No. 2 and 3 I submit that they were not necessary parties.

The affidavit-in-reply filed by the Special Secretary is in the nature of a contesting affidavit. He has not given any finding in the revision application that petitioners Nos. 2 and 3 were not necessary parties.

19. As has been observed by me earlier, petitioners Nos. 1 and 2 are the owners of survey No. 241, whereas petitioner No. 3 is the owner of survey No. 37. Even if we may go with the Special Secretary that he might have bona fide belief that petitioner No. 1 may represent the interest of petitioner No. 2 because both of them were the owners of survey No. 241, by no stretch of imagination it can be said that petitioner No. 1 can represent petitioner No. 3 who was the exclusive owner of survey No. 37, and there is no justification in raising such an averment. So far as this point is concerned, I hold that since respondent No. 1 has not filed revision application against petitioners Nos. 2 and 3, the decision of the Collector in respect of both the survey Nos. 241 and 37 has become final, because if the decision against petitioner No. 2 has become final in respect of survey No. 241, it cannot be reagitated by filing a petition against one of the owners.

20. On the view which I have taken that the decision of the Civil Court was binding and the revenue authority was enjoined to correct the record of rights in accordance with the decision of the High Court, proceedings against petitioners Nos. 1 and 2 taken by respondent No. 1 by filing an application were totally misconceived, and the remand order made by the Special Secretary in spite of the orders of the Civil Courts is without jurisdiction and requires to be set aside.

21. So far as the impugned order of the Special Secretary against petitioner No. 3 is concerned, no revision has been filed against him in respect of survey No. 37 and, therefore, the judgment and order of the Collector have become final and binding, and the Special Secretary had no jurisdiction to pass any order against petitioner No. 3. The impugned order, therefore, so far as petitioner No. 3 is concerned, is also ultra vires and requires to be quashed and set aside.

22. In the result, the petition is allowed. The impugned order of the Special Secretary dated 2-5-1978 (Annexure 'H') is quashed and set aside. Rule is made absolute. Since the petitioners have been put to great harassment and they are required to file this petition, they are entitled to special costs, quantified at Rs. 500/-, which respondent No. 1 shall pay to the petitioners.


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