(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)
1) This appeal is directed against the order dated 8.04.2004 passed by the learned Single Judge in Special Civil Application No.13129 of 2003. By the impugned order, the learned Single Judge allowed the writ petition filed by the respondent No.1 herein and directed the concerned Revenue Authority to mutate necessary entry in the name of the appellant in the revenue record. The dispute is in connection with the land bearing survey No.109/3-Block No.179 which originally belonged to one Mohanbhai Ramabhai and Chhitabhai Ramabhai. Said Mohanbhai Ramabhai was having 1 acre and 4 gunthas of share in the said property. The land in question is a restricted tenure land as per the provisions of section 73AA of the Bombay Land Revenue Code, 1879. Said Mohanbhai Ramabhai had executed a will whereby his share in the said property had been bequeathed in favour of the present respondent No.1. The will in question was a registered will. Said Mohanbhai Ramabhai, thereafter, died. By virtue of the said will, a tentative entry was posted in the revenue record, being entry No.2204 in favour of the respondent No.1 herein (original petitioner). However, the said entry was not certified. The petitioner, thereafter, preferred an appeal, which was rejected. Revision Application was also directed against the said order, which also came to be rejected. Therefore, the respondent No.1 herein preferred writ petition before the learned Single Judge. The learned Single Judge allowed the writ petition directing the Revenue Authority to certify the entry in favour of the respondent No.1 herein. Against the aforesaid order, this Letters Patent Appeal is filed by the State Government.
2) Learned Assistant Government Pleader Ms. Krina Calla vehemently argued that even if the property is bequeathed by virtue of will, it will be a transfer of land and, therefore, it will attract the provisions of section 73AA of the Bombay Land Revenue Code. It is submitted by her that since such transfer was in violation of the Bombay Land Revenue Code, the Revenue Authority was justified in not certifying the entry. It is submitted by her that the learned Single Judge of this Court erred in relying upon the decision in the case of Gopiraj Dedraj Agrawal Vs. State of Gujarat 2004 (1) GLR 237 taking a view that if the property is bequeathed by will, it cannot be held to be a transfer as it may amount to transmission and not transfer. It is further submitted that the said judgment was in connection with section 63 of the Bombay Tenancy & Agricultural Lands Act,1948 and, therefore, the said judgment cannot be made applicable to the facts of the present case.
3) We have heard learned Assistant Government Pleader at length. It is required to be noted that in the instant case, the issue involved is only in connection with certifying the revenue entry which is only for fiscal purpose. It is well settled proposition of law that revenue entry would no longer confers any title. If, according to the State Government, the respondent No.1 is not entitled to retain the land on the ground that it violates the provisions of section 73AA of the Bombay Land Revenue Code, it will be open to the appellant-State to take out appropriate proceedings under the provisions of Bombay Land Revenue Code in accordance with law, if at all, appellant is of the view that there is violation of provisions of section 73AA of the Bombay Land Revenue Code. While posting revenue entry, Court is not deciding the title. Dispute whether the respondent is having valid title or not, is the question which is kept open for deciding in appropriate proceedings if undertaken by the State in this behalf. Suffice it to say that while deciding the aspect about revenue entry, the Court is not required to decide title over the suit property. Even if the entry is certified, it would not prejudice the case of the Government. It would be open for the Government to initiate appropriate proceedings in this behalf. In view of the same since the matter is only in connection with certifying the revenue entry, we would not like to interfere with the order passed by the learned Single Judge in this behalf, keeping the question of title open and giving opportunity to take out appropriate proceedings as deemed fit in accordance with the law.
4) Subject to the aforesaid, the appeal is dismissed.
(P.B.MAJMUDAR,J.) (MOHINDER PAL,J.) Vahid Top