1. The present petition has been preferred by the petitioners for challenging the legality and validity of the order passed by the lower Authority and it is prayed that Entry No.549 be restored.
2. The short facts appear to be is that: the land in question bearing Survey No.172, ad-measuring 4 Acres and 11 Gunthas situated at Vadva-Kaya, Tal. Nakhatrana, District: Kutch (herein after referred to as ‘land in question’) was under mortgage of Patel Ukeda Kanji. Petitioners redeemed the mortgage on 12.8.1988 and therefore, they moved an application for transfer of the land on their name being legal heirs of Meghji Waghji. The revenue entry was mutated on 14.3.1989 vide Entry No.549 by Revenue Secretary of the Village. The objections were filed by the deceased Khimaji Waghji and son Dipsangji Khimaji. Therefore, the entry was treated as disputed entry and the matter was referred to Mamlatdar. The Mamlatdar vide order dated 24th October, 1989 found that for the subject matter of the land together with the other land, Civil Suit No.185 of 1988 is filed by Khimji Waghji and his legal heirs and therefore, it was directed for deletion of Entry No.549 dated 14.3.1989 and it was further observed that after the decision of the Civil Court, the appropriate revenue entry be mutated in the revenue record. The matter was carried in appeal by the petitioners before the Deputy Collector being Appeal No.12 of 1990. The Deputy Collector concurred with the view of Mamlatdar and dismissed the appeal. However, he issued further direction that until the decision of the Civil Court, the entry be mutated on the name of all the legal heirs of deceased Waghji Jasaji. The petitioners further carried the matter before the Collector and said appeal vide order dated 20th February, 1992 was dismissed. The petitioners also carried the matter before the State Government by way of revision and the said revision vide order dated 31st August, 1999 at Annexure-B had been dismissed. Under these circumstances, the present petition before this Court.
3. The Revenue Entry No.549 and one Revenue Entry No.575 and order of Deputy Collector with the consent of the learned advocates appearing for both the sides are taken on record.
4. Heard Mr.Shah, learned counsel appearing for the petitioners, Mr.Tanmay B.Karia, learned AGP for respondent Nos.1 to 4 and Mr.Jadeja, learned advocate for respondent No.6. As per Mr.Mehul Shah, learned advocate for the petitioners, respondent No.5 Jadeja Khimji Waghji has expired but he is already represented by his son Jadeja Dipsangji Khimaji and the said aspect is not disputed by Mr.Jadeja, learned counsel appearing for respondent No.6. The submissions are made by Mr.Jadeja.
5. As such, if the revenue authority has declined the mutation of any revenue entry in view of the fact that Civil Suit is pending qua inter-se rights of the parties and the decision of the Civil Court has not arrived at, such cannot be said tobe erroneous and illegal approach on the part of the revenue authority. The position of law is well settled that the rights in the property are ultimately to be finalized by the Civil Court and revenue entry will have the evidential value for fiscal purposes only. Therefore, it appears that the finding recorded by the Mamlatdar and its confirmation thereof by the Deputy Collector, the Collector as well as the State Government to that extent would not call for any interference by this Court, more particularly, when it has been submitted by the learned counsel appearing for both the sides that thereafter the decision was rendered by the Civil Court in Civil Suit No.185 of 1988 and the First Appeal was preferred before this Court being First Appeal No.959 of 2003 but thereafter as the jurisdiction of the District Court was enhanced, the appeal has been referred to the Court of the learned District Judge and the learned counsel appearing for both the sides have no instructions as to whether First Appeal has been decided or not. In any case, the revenue authority will have to mutate the entry based on the decision of the Civil Court and/or its confirmation or modification by the appellate Court in the above referred First Appeal, if any.
6. But it appears that the Deputy Collector in the appeal preferred by the petitioners against the order of the Mamlatdar dated 24th October, 1989 could be said as exceeded jurisdiction in directing the mutation of the entry by including the name of all the legal heirs of Waghji Jasaji. Such, in my view, such could not have been done by the Deputy Collector because the subject matter of the appeal before the Deputy Collector was only as to whether the order passed by the Mamlatdar for deletion of the Entry No.549 was proper or not. Therefore, the Deputy Collector while exercising the appellate power could not have directed for mutation of any new entry in favour of all the legal heirs of Waghji Jasaji. The aforesaid important aspect has neither been considered by the District Collector nor by the State Government in exercise of their respective revisional jurisdiction. Under the circumstances, the further direction issued by the Deputy Collector in the appeal vide order dated 10th May, 1990 and its confirmation thereof by the Collector as well as the State Government deserves to be quashed and set aside.
7. In view of the aforesaid observations and discussions, the order passed by the lower Authority for deletion of the Entry No.549 and for mutation of the entry of the said land after the decision of the Civil Court in Civil Suit No.185 of 1988 are not interfered with but with the further direction that the entry shall be mutated in the revenue record as per the decision of the Civil Court in the said Suit and thereafter, as per the decision of the appellate Court, if any, in the appeal No.959 of 2003 or the new number, if any, given after the matter is referred to the District Court for appropriate decision. The direction of the Deputy Collector for mutation vide order dated 10th May, 1990 for mutation of revenue entry in favour of legal heirs of Waghji Jasaji is quashed and set aside and consequently, the order of the Collector as well as of State Government for not interfering with the said part of the order of the Deputy Collector is also set aside. The entry made pursuant to the order dated 10th May, 1990 of the Deputy Collector is in favour of all the legal heirs of Waghji Jasaji shall be deleted from the revenue record. It is also observed that as the decision of the Civil Court or the Appellate Court, as the case may be, the revenue entry shall be mutated in the revenue record by the concerned revenue secretary in accordance with law. It is also clarified that the deletion of the Entry No.549 shall not invest any right in favour of the mortgagee of the land in question who is not concerned with the present dispute.
8. The petition is allowed to the aforesaid extent only. No order as to costs. Rule made absolute accordingly.
(JAYANT PATEL, J.) (ashish)