(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of this Appeal under Clause-15 of the Letters Patent, the original petitioner has challenged the Oral Order dated 27.04.2011 passed in the captioned Special Civil Application dismissing the same mainly on the ground that since the dispute with regard to the title of the property can be decided by Civil Court in appropriate proceedings between the parties and also on the ground that the Revisional Authority is seized with the matter.
2 Brief facts arising in the present case are as under:
That the appellant/petitioner is claiming to be the owner of the land bearing City Survey No.702/2, Makarba, Ahmedabad admeasuring 1000 sq.yards by virtue of registered Will dated 18.8.1987 executed by the original owner Smt. Parvatiben Patel as well as on the basis of the registered sale deed dated 09.07.2008 executed by him as power of attorney holder of the heirs of the original owner Smt. Parvatiben gave in his favour. That by mutation entry No.10865 the name of the petitioner was mutated in the revenue record, however subsequently by order dated 30.1.2009 said mutation entry came to be cancelled / not certified by the City Mamlatdar, Ahmedabad. It appears that respondent Nos. 14 to 17 herein are also claiming to the owners of the land in question which they have purchased from the original owner and by mutation entry No.11179 their names have been mutated in the revenue record. Being aggrieved and dissatisfied with order passed by the City Mamlatdar, Ahmedabad dated 30.1.2009 in RTS Appeal No.216 of 2009 in not certifying the Entry No. 10865 which was in the name of the petitioner and certifying the entry No.11175 which is in favour of the respondent Nos. 14 to 17, the petitioner preferred RTS Appeal No. 78 of 2009 and 145 of 2009 before the City Deputy Collector, Ahmedabad, who by his order dated 11.1.2010 has dismissed the aforesaid two appeals. Being aggrieved and dissatisfied with the order passed by the City Deputy Collector, Ahmedabad dated 11.1.2010 passed in RTS Appeal Nos. 78 of 2009 and 145 of 2009, the petitioner preferred two Revision Applications before the learned District Collector, Ahmedabad being Revision Applications No. 41 of 2010 and 42 of 2010, which also came to be dismissed by the District Collector dated 7.7.2010. Being aggrieved and dissatisfied with the aforesaid orders, the petitioner has preferred Revision Applications No. 120 of 2010 and 121 of 2010 before the learned Secretary (Appeals), Revenue Department, State of Gujarat. In the said revision application, the petitioner submitted the application for stay, which came to be rejected by the learned Secretary (Appeals), Revenue Department, State of Gujarat by impugned common order dated 22.11.2010.
3 The Common Order dated 22.11.2010 was challenged by way of the present Special Civil Application and following prayers were made in the petition.
(a) Your Lordships may be pleased to issue a writ of certiorari to vacate the impugned order dated 22.11.2010 passed by the Special Secretary (Appeals), Revenue Department, Gujarat State, in Revision Application No. 120/10 and 121/10.
(b) Your Lordships may be pleased to issue a writ of certiorari to vacate the Order dated 07.07.2010 passed by the District Collector in Revision Applications No. 41/10 and 42/10.
(c) Your Lordships may be pleased to issue a writ of certiorari to vacate the Order dated 11.01.2010 passed by the City Deputy Collector, Ahmedabad, in RTS Appeals No. 78/09 and 145/09.
(d) Your Lordships may be pleased to issue a writ of certiorari to vacate the order dated 30.01.2009 passed by the City Mamlatdar, Ahmedabad, in RTS Case No. 216/08.
(e) Your Lordships may be pleased to issue a writ of mandamus directing the Special Secretary (Appeals), Revenue Department, Gujarat State to restore revenue Entry No. 10865 in the record of rights of the land in question and to countermand revenue Entry No. 11179 from the record of rights of the land in question.
(f) Pending admission and final hearing of the present petition, Your Lordships may be pleased to stay the operation and implementation of the impugned order dated 22.11.2010 passed by the Special Secretary (Appeals), Revenue Department, Gujarat State, Order dated 07.07.2010 passed by the District Collector, Ahmedabad, in Revision Applications No. 41/10 and 42/10, order dated 11.01.2010 passed by the City Deputy Collector, Ahmedabad, in RTS Appeals No. 78/09 and 145/09 and Order dated 30.01.2009 passed by the City Mamlatdar, Ahmedabad, in RTS Case No. 216/08.
(g) Pending admission and final hearing of the present petition, Your Lordships may be pleased to restrain the private respondents from creating any rights in favour of any third party by way of transfer, sale or any other manner of the land in question.
(h) Be pleased to grant such other and further relief/s as this Honourable High Court deems fit in the interest of justice.”
4 After hearing the learned Advocate appearing for the parties on merits at length and after perusing the documentary evidence produced on record as well as after perusing the orders passed by the authorities below, the learned Single Judge has come to the conclusion that the rights between the parties can be established by initiating the appropriate proceedings before the Civil Court. The learned Single Judge after recording the arguments advanced by the learned Advocates for the parties, observed in para (7) and (8) of the impugned order as under:
“(7) Considering the fact that mutation entry in favour of the petitioner has not been certified which has been confirmed by the City Deputy Collector as well as Collector, Ahmedabad and the mutation entry in favour of respondent nos/ 14 to 17 has been certified, this Court asked a pointed query to the learned advocate for the petitioner that in view of the above what stay can be granted, to that Shri Mehta, learned Advocate for the petitioner has submitted that mutation entry in favour of the petitioner is to be restored / confirmed. The aforesaid cannot be granted by way of interim relief. Granting such a interim relief would tantamount to allowing the revision applications. Under the circumstances, the Revisional Authority has rightly refused to grant the stay and has rightly rejected the stay application. It is also required to be noted at this stage that the petitioner is claiming ownership on the basis of Will executed by the original owner Smt. Parvatiben Patel as well as by virtue of the registered sale deed dated 09.07.1998 executed by him as power of attorney holder of heirs of the original land owner Smt. Parvatiben in his favour. If the petitioner is claiming the ownership on the basis of the Will executed by the original owner, in that case, there was no reason by the petitioner to get the registered sale deed executed in his favour by himself as power of attorney holder of the heirs of the original owner. However, the aforesaid aspects are required to be considered as and when appropriate proceedings are initiated by the aggrieved party and/ or by the petitioner for establishing his rights by initiating the appropriate proceedings before the Civil Court.
In the facts and circumstances of the case, no illegality has been committed by the Revisional Authority in rejecting the stay application.
(8) At this stage, it is required to be noted that the dispute is with respect to mutation entry in the revenue record and as per the settled proposition of law, the mutation entry in the revenue record does not confer any right, title and interest in favour of a person whose name is mutated in the revenue record solely on the basis of mutation entry and if there is any dispute between the parties with respect to title, respective parties are required to approach the Civil Court to establish their rights and necessary mutation entry can be made in the revenue record on the basis of judgment and decree that may be passed by the Civil Court. Under the circumstances, it is observed that as and when any proceedings are initiated by either of the parties before the Civil Court, Civil Court is bound to consider the same in accordance with law and on merits and without in any way being influenced by the mutation entry.”
3 While dismissing the said Special Civil Application, the learned Single Judge directed the Revisional Authority to decide and dispose of the Revision Applications in accordance with law and on merits at the earliest but not later than 31.12.2011.
4 It appears that since the present appeal was filed by the original petitioner on 11.7.2011, the Revisional Authority could not decide the Revision Applications as directed by the learned Single Judge and is pending for hearing.
5 We have heard learned Advocate Mr. Shalin Mehta assisted by Ms. Vidhi J Bhatt for the appellant, learned AGP Mr. N.J. Shah for respondents No. 1 to 4, learned Advocate Mr. Vimal M.Patel for respondents No. 5 to 13 and Ms. Megha Jani with Mr. Salil M. Thakore for respondents No. 14 to 17. We have gone through the document like Entry No. 6620 which was made on 17.11.1989 in Village Form No. 6, by which it was recorded that the deceased Parvatiben, Wd/o Bhaichand Amthabhai had bequeathed the disputed property by a registered Will dated 18.8.1987. The Form No.6 also reflects that by order dated 30.1.1990, Entry No. 6620 is not certified by the authority. Entry No. 6690 was mutated in Form No. 6 on 26.3.1990 showing the names of the legal heirs of the deceased Parvatiben, Wd/o Bhaichand Amthabhai. The said form also shows that an endorsement was put on 11..5.1990. Notices were issued and it was directed to produce a panchnama. On 27.11.1990, it was noted that no panchnama was prepared and, therefore, another panchnama was required to be prepared. The appellant has also produced a copy of Will dated 18.8.1987 by which the disputed property was bequeathed to the appellant by deceased Parvatiben. It is the case of the appellant that by an irrevocable power-of-attorney dated 27.10.1986, deceased Parvatiben had permitted the appellant to act on her behalf with regard to the disputed property.
6 The appellant by a registered sale deed purchased the disputed property in his individual capacity through the legal heirs of deceased Parvatiben being the power-of-attorney-holder. The sale deed was executed in the year 2008. Pursuant to the sale deed, on 30th July, 2008, an Entry No. 10865 was mutated in Form No.6. Pursuant to the notices issued with regard to the Entry, Objections were raised by the respondents and by Order dated 30.1.2009, the endorsement/note which was mutated in Form No.6 was cancelled and these orders are the subject matter of proceedings before the higher authority in which Revision Applications are pending.
7 The main contention raised by Mr. Mehta , learned Advocate appearing for the appellant/petitioner is that the appellant is the owner of the disputed property since the property was bequeathed by the land owner by registered Will and none of the respondents have challenged the validity of the said Will and, therefore, he is entitled to get the relief as prayed for in the petition. On the other hand, the respondents have relied upon several pronouncements in several litigations with regard to the disputed property between the several persons including the present appellant.
8 We have gone through the entire record of the case and we would like to observe that when the dispute with regard to the Entry in the revenue record is concerned, the ownership of the land cannot be decided in the revenue proceedings which are known as `RTS' proceedings. The courts time and again have observed in catena of decisions that when the disputes are with regard to the mutation of entries in the revenue record, only competent court is empowered to decide the ownership of the disputed property, that would be a civil court and the courts exercising powers under Articles 226 and 227 of the Constitution of India would be loath to decide the same.
9 We are in total agreement with the observations made in para (7) & (8) of the impugned order by the learned Single Judge which is quoted in this judgment and has rightly held that the prayers made in the petition cannot be granted which would result into deciding the rights, title and interest of the parties with regard to the property. In the present case, the learned Single Judge has also directed the Revisional Authority to decide the Applications as early as possible.
10. In view of the aforesaid, we do not find any merit in the present appeal and the same deserves to be dismissed. The appeal is therefore dismissed accordingly. There shall be no order as to costs. However, the Revisional Authority is directed to decide the Revision Applications No.120 and 121 of 2010 in accordance with law and on merits within a period of three months from the date of receipt of this order.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair