(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.J.V.Vaghela, learned counsel appearing for the appellants and Mr.N.J.Shah, learned Assistant Government Pleader appearing for the respondents.
2. This Letters Patent Appeal has been filed challenging the judgment dated 3.9.2010 passed by the learned Single Judge in Special Civil Application No.1882 of 2004 by which the learned Single Judge has affirmed the order passed by the revenue authorities.
3. Brief facts of the case are that the land bearing survey no.58 admeasuring 1 acre and 2 gunthas of village Chharodi, Ta: Dascroi, Dist: Ahmedabad was owned and possessed by one Bhikhaji Lalji Thakor. The petitioner was closely associated with Bhikhaji Lalji Thakor who had executed a will deed dated 9.4.1964 in favour of the appellants. Bhikhaji Lalji Thakor expired on 30.11.1964. The appellants are claiming the right on the basis of the will deed executed by Bhikhaji Lalji Thakor which has been negatived by the revenue authorities as well as by the learned Single Judge on the ground that under the Bombay Tenancy and Agricultural Lands Act, 1948, agricultural lands cannot be transferred by way of will deed in view of the fact that section 63 of the said Act bars transfer of agricultural lands by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that section. The aforesaid view of law has been taken by the Division Bench of this Court in Rajenbhai Baldevbhai Shah vs. Baijiben Kabhaibhai Patanvadia and others 2009(2) GLR 1784, of which para-12 is extracted below:
"12. We are, therefore, of the considered view that if the agriculturist is permitted to dispose agricultural property through testamentary disposition to a non- agriculturist the same will defeat the very purpose and object of the Tenancy Act which cannot be permitted by a Court of law, therefore, we hold that decision rendered by the learned Single Judges referred above earlier, otherwise, are not correct enunciation of law and stand overruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the transfer of agricultural land by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that Section. We are informed by the learned Counsel for the petitioner that large number of agricultural lands have already been transferred through testamentary disposition to non-agriculturists and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of the view that there are matters to be considered by the learned Single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion. We are only called upon to answer the scope of Sections 43 and 63 of the Tenancy Act, which we have already answered."
The aforesaid decision clearly applies to the facts of the instant case.
4. Learned counsel for the appellants has urged that the entry made in the revenue record in favour of the appellant on the basis of the will deed has been expunged. His argument that the entry could not be expunged in RTS proceedings. We need not go into this question as in view of the aforesaid decision of the Division Bench, will deed doe not confer any right or title on the appellants.
5. In view of the aforesaid, we do not find any illegality in the impugned judgment passed by the learned Single Judge. This Appeal is devoid of any merits and is accordingly dismissed.
(V.M.SAHAI,J) (A.J.DESAI,J) ***vcdarji