(Per : HONOURABLE MR.JUSTICE A. J. DESAI) By way of the present Appeal under Clause 15 of Letters Patent, the appellant original respondent no. 4 has challenged the judgement dated 12/10/2010 passed by learned Single Judge in Special Civil Application No. 14218/2008, by which, learned Single Judge has allowed the petition filed by present respondent no. 1 and set aside the order dated 28/3/2008 of respondent no. 3 and restored Entry no. 40 in the name of the petitioner.
The facts in brief of the case are as under:
"That the property in dispute, bearing Plot No. 458/2 admeasuring 200 sq. metres situated in Sector-28, Gandhinagar, originally belonged to respondent no.5 herein. On 29.07.1985 the original owner had executed one Banakhat in favour of present appellant and had agreed to sell the said property to the appellant for a consideration of Rs.1,25,000/-. Having received the full consideration from appellant, the original owner executed an irrevocable power of attorney in favour of appellant dated 31.12.1985/08.01.1986.
On 25.02.1986 appellant executed a registered Banakhat and Kabja Karar in favour of the father of the original petitioner (present respondent no. 1). The father of the petitioner died on 09.05.1998. Somewhere in August 1999, appellant instituted Regular Civil Suit No.238/1999 against the father of the original petitioner in the Court of learned Civil Judge (S.D.), Gandhinagar. However, subsequently, the said suit came to be withdrawn on account of a settlement between the parties on 13.02.2007. On the same day, present appellant executed a registered sale deed in favour of the present respondent no. 1 (original petitioner).
Thereafter, the original petitioner submitted an application to respondent no.4 for mutation of his name in the revenue record. In pursuance thereof, Entry No. 190 dated 06.08.2007 was mutated in the records of the subject property and Notice u/s.135-D of the Bombay Land Revenue Code was issued to appellant. Appellant raised certain objections to the said Entry. Therefore, vide order dated 28.03.2008, present respondent no.4 rejected the disputed Entry.
Against the said order, the petitioner filed revision application before Secretary, Revenue Department, State of Gujarat. respondent no.1. The said application came to be rejected by the State vide impugned order dated 06.10/11.2008. Hence, the petitioner/ respondent no. 1 herein filed SCA no. 14218 of 2008, which came to be allowed by learned Single Judge in favour of the petitioner Amarsing and setting aside the orders passed by authorities below. Hence, this appeal.
We have heard Mr. Harshil Dholakia, learned counsel for Mr. NS Desai, learned counsel for appellant and Mr. VJ Thakor, learned counsel for respondent no. 1 and Mr. NJ Shah, learned AGP for respondent nos. 2 to 4.
Perusing the facts, it appears that the dispute was settled before the Civil Court on 13/2/2007 and present appellant executed registered sale deed in favour of the original petitioner/Respondent no. 1. In our view, when the matter was settled and sale deed was executed in favour of petitioner, learned Single Judge has rightly observed that orders passed by authorities below were not in consonance with the reported decision of this Court.
We have appreciated the observations made by learned Single Judge which are as under:
"In pursuance of the settlement arrived at between the petitioner and respondent no.4 in the proceedings of Regular Civil Suit No.238/1999 filed by respondent no.4 in the Court of learned Civil Judge (S.D.), Gandhinagar, respondent no.4 executed a registered sale deed in favour of the petitioner in respect of the subject property on 13.02.2007. Thereafter, the name of the petitioner was mutated vide Entry No. 190 dated 06.08.2007 in the revenue records.
It has been the consistent view of this Court that while dealing with R.T.S. proceedings, the revenue authorities have no jurisdiction and / or authority to decide the question of title and if there is any dispute with regard to title, the parties are to be relegated to the Civil Court. The revenue authorities cannot decide the disputed question of title to the property and they have to go by the documents produced before them.
Even in a decision of this Court in the case of Gandabhai Dalpatbhai Patel v. State of Gujarat & Ors., 2005 (2) G.L.R. 1370, this Court has held that the questions in relation to genuineness of Power of Attorney and/or authority and whether the Power of Attorney holder can execute the sale-deed or not are the questions which are required to be considered by a Civil Court and not in an R.T.S. proceeding while mutating necessary entry in the record of rights which is only made for fiscal purpose and which does not confer any right, title or interest in favour of a person in whose favour entry is made.
Looking to the facts of the case and in view of the principle laid down in Gandabhai Patel's case (supra), I am of the view that the authorities below have committed serious error in rejecting the Entry made in favour of the petitioner since they have no right to look into the genuineness of the Power of Attorney in the R.T.S. proceedings. The registered sale deed has still not been challenged by any person."
8. We have gone through the orders passed by Authorities below as well as order passed by the learned Single Judge and we do not find any infirmity with the same. Hence the appeal is summarily dismissed. The parties shall bear their own costs.
(V.M.SAHAI, J) (A.J.DESAI, J) *asma Top