SCA/7608/1999 of GUMANSINH MAGANLAL BAROT Vs STATE OF GUJARAT on 29 December 2008

ORAL JUDGMENT

SCA/7608/19992/17JUDGMENTConstitution of India has been filed, challenging the order dated 17.4.1999

passed by the Deputy Secretary (Appeals), whereby, order dated 9.1.1995 of the Collector, Mehsana, and order dated 28.8.1992 of the Deputy Collector, Mehsana, have been set aside and the order dated 15.10.1988 passed by the Deputy Mamlatdar, Vijapur, rejecting the objections filed by the petitioner and respondent No.6 and certifying Entry No.2487 with regard to Survey No.121/1 of Village Asoda, Taluka: Vijapur, in the name of respondent No.5, has been confirmed.confirmed.

2. Briefly stated, the facts of the case, as emerging from a perusal of the averments made in the petition, are that land bearing Survey No.121/1 of Village Asoda, Taluka: Vijapur, District: Mehsana, was running in the name of the petitioner since the year 1959. The petitioner, as SCA/7608/19993/17

well as respondents Nos.5 and 6, are real brothers. A family agreement was entered into amongst members of the family, including the petitioner and respondents Nos.5 and 6, on 13.5.1975. According to the petitioner, this agreement was never implemented. However, pursuant to the family agreement, respondent No.5 made an application to the Deputy Mamlatdar, for making a mutation entry in the revenue records in his favour, in respect of land bearing Survey No.121/1 of Village Asoda.

On 5.6.1987, the land in question was

mutated in the name of respondent No.5 vide entry No.2487. The petitioner and respondent No.6 filed their objections to the said entry. By order No.RTS/4981/86 dated 15.10.1988, the Deputy Mamlatdar, rejected the objections filed by the petitioner and respondent No.6 and certified the mutation entry No.2487 in respect of Survey No.121/1, in favour of respondent No.5. Aggrieved by the order SCA/7608/19995/17

JUDGMENT

(Appeals), Ahmedabad, against the order

dated 9.1.1995 passed by the Collector,

Mehsana. By order dated 17.4.1999, the order dated 9.1.1995 of the Collector,

Mehsana, and order dated 28.8.1992 of the Deputy Collector, Mehsana, were set aside and the order of the Deputy Mamlatdar, dated15.10.1988,certifyingEntry No.2487, was upheld. The Deputy Secretary (Appeals) has also observed in order dated 17.4.1999, that the parties can approach the competent Civil Court with regard to the dispute. It is this order that has been impugned in the present petition.

3. Mr.Rajesh Savjani, learned counsel for the petitioner, has submitted that land bearing Survey No.121/1 was running in the name of the petitioner ever since the time of promulgation, and an entry to this effect was made in the revenue record in 1959. It is submitted, that the said land was not joint family property but was the self-acquired property of the petitioner, and this aspect has not been taken note of by the Deputy Secretary (Appeals), in proper perspective. It is further submitted, that all the relevant aspects have been mentioned by the Deputy Collector and the Collector in their respective orders, which have been set aside by respondent No.1, without taking them into consideration.

That the so-called family agreement entered into by the petitioner and as respondents Nos.5 and 6 was never implemented. The said oral agreement has been reduced into writing on a simple piece of paper but has not been registered and, therefore, no reliance can be placed upon it, being an unregistered document. It is contended, that as per the provisions of Section 17

of the Registration Act, 1908, it is compulsory to register such a document.

In support of this contention, the learned counsel for the petitioner has relied upon (1) Nani Bai v. Gita Bai Kom Rama Gunge – AIR 1958 SC 706 and (2)

Siromani v. Hemkumar and others - AIR 1968 SC 1209.

It is argued that as the impugned order

has been passed by not taking into consideration the aforesaid relevant aspects, that the land in question was running in the name of the petitioner since 1959, and the family agreement pursuant to which the disputed entry was effected in the revenue records in favour of respondent No.5 is an unregistered one, the same deserves to be quashed and set aside.

4. Ms.ArchanaRawal,learnedAssistant Government Pleader for respondents Nos.1 to 4, has submitted that the order of the Deputy Mamlatdar dated 15.10.1988 has Government Pleader for respondents Nos.1 to 4, has submitted that the order of the Deputy Mamlatdar dated 15.10.1988 has SCA/7608/19998/17

JUDGMENT

rightly been confirmed by the Deputy

Secretary (Appeals) as it is not compulsorytoregisterafamily agreement, and there are instructions of the Government to this effect, and this aspect has been clearly recorded in the impugned order. It is submitted that the order of the Deputy Secretary has taken into consideration this aspect of the matter and it cannot be said that there is non-consideration of the relevant issues, as argued by the learned counsel for the petitioner.

That the petitioner has objected only to entry No.2487 in respect of Survey No.121/1, but there is no objection to other properties mentioned in the family agreement, and if the petitioner is seeking to assert title on the land in question, then he should approach the Civil Court which has the jurisdiction to adjudicate upon questions of title, as this issue cannot be decided by the

revenue authorities. It is, therefore,

submitted that the petition be dismissed.

5. Though respondent No.5 is represented by counsel, none is present on his behalf today. None appears for respondent No.6, as well. as well.

6. I have heard Mr.Rajesh Savjani, learned counsel for the petitioner and Ms.Archana Rawal,learnedAssistantGovernment Rawal,learnedAssistantGovernment Pleader for respondents Nos.1 to 4 and have perused the averments made in the petition, as well as the documents annexed thereto.

7. The undisputed facts are, that a family agreement was entered into amongst the petitioner and respondents Nos.5 and 6

who are real brothers, on 13.5.1975. This agreement was not registered but simply reduced into writing. Pursuant to this agreement, respondent No.5 made an application to the Deputy Mamlatdar for effecting a mutation entry in his favour, in respect of land bearing Survey No.121/1. Consequently, mutation entry No.2487, dated 5.6.1987, came to be entered in the revenue records, in favour of respondent No.5, which entry was subsequently certified.

8. There is no material on record to lend support to the submission of the learned counsel for the petitioner that the unregisteredfamilyagreementdated 13.5.1975 was never implemented. On the contrary, there is no dispute that pursuanttothesaidagreement, respondent No.5 made an application to the Deputy Mamlatdar, which resulted in mutation entry No.2487 being effected in the revenue record, in his favour.

Similarly, the contention of the learned counsel for the petitioner to the effect that the land in question stood in the

9. name of the petitioner since the year

1959 and, therefore, the disputed entry

could not have been effected in favour of respondent No.5, does not carry weight, as the family agreement was entered into in the year 1975, and the disputed entry was effected only subsequent thereto. The position prevailing prior to entering into the family agreement is of no relevance as the dispute arose when respondent No.5 made the application for mutation, pursuant to the said agreement.

It is a settled position that a revenue

entry does not confer title upon the

person in whose favour it has been

mutated and a dispute regarding title can only be decided by a competent Civil Court. In this regard, paragraph-4 of the judgment of this Court titled Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors – 1996(2) GLR 525

is relevant, and is reproduced as under:

records arises, the parties have to

go to the competent Civil Court for

resolution of their such dispute.

They cannot convert the mutation

proceedings under Chapter 8A of the

Code into a battle-field for the

purpose. The revenue authorities are

incompetent to decide the disputed

question of title to any property mentioned in any revenue record.”mentioned in any revenue record.”

The revenue authorities are not empowered to adjudicate upon the title of the land to adjudicate upon the title of the land and decide the question whether it is a joint family property or the self- acquired property of the petitioner, in his exclusive ownership, and therefore the parties have rightly been relegated to the Civil Court to settle such a dispute.

10. As far as the mutation of the disputed revenue entry is concerned, it is not the case of the petitioner that the necessary revenue entry is concerned, it is not the case of the petitioner that the necessary procedure, as envisaged under Section 135D of the Bombay Land Revenue Code, 1879, has not been followed. The objections raised by the petitioner and respondent No.6 in respect of the disputed entry, have been considered and rejected by order dated 15.10.1988, made by the Deputy Mamlatdar, and entry No.2487 in favour of respondent No.5, has been certified. There is nothing on record to show, and neither is it the case of the petitioner, that the necessary procedure under Section 135D of the Code has not been followed. This being the position, there is no justification to interfere with the impugned order of the Deputy Secretary (Appeals).

11. Regarding the provisions of Section 17 of the Registration Act, 1908, on which reliance has been placed by the learned counsel for the petitioner, the same SCA/7608/199914/17JUDGMENTrelatestodocumentsofwhich registration is compulsory. The learned counsel for the petitioner has been unable to show how, and in what manner, this provision affects the case of the respondentNo.5,apartfromthe submission that the family agreement should not have been implemented as it is unregistered. The impugned order of the Deputy Secretary clearly states that there are instructions of the Government of Gujarat, to the effect that such family agreements need not be registered. Thereisnochallengetothese instructions, nor to the validity of the family agreement. The entire proceedings have arisen from an application for effecting a mutation entry by respondent No.5, which came to be disputed by the petitioner and respondent No.6. The title to the property in question was not in issue and, therefore, the arguments of the learned counsel for the petitioner that the land in question is the self-

acquired property of the petitioner,

cannot be considered or gone into by the revenue authorities. It is noteworthy that the revenue authorities, including the Deputy Collector, the Collector and the Deputy Secretary (Appeals), have relegated the parties to the Civil Court for decision upon the issue of ownership and title, and, in my view, rightly so.

12. The decisions relied upon by the learned counsel for the petitioner, namely, Nani Bai v. Gita Bai Kom Rama Gunge (supra)

and Siromani v. Hemkumar and others

(supra), propound accepted propositions

of law, turning upon the facts peculiar

to those cases. As such, they have no

bearing on the facts and circumstances of the present case, and are not helpful in furthering the case of the petitioner.

13. A relevant aspect of the matter, emerging from a perusal of the impugned order SCA/7608/199916/17JUDGMENT

dated 17.4.1999, is that the petitioner and respondents Nos.5 and 6, have appended their signatures to the family agreement, pursuant to which mutation entry No.2487 has been effected in the revenue record. This agreement has not been challenged by the parties. An objection has been raised by the petitioner only with regard to entry No.2487, relating to Survey No.121/1 and not to other properties included in the family agreement. To this extent, the family agreement appears to be undisputed and accepted by the parties, which is not denied. The contention of the learned counsel for the petitioner that the family agreement was never acted upon untilrespondentNo.5filedan application before the Deputy Mamlatdar, is not relevant as the petitioner and respondent No.6 have accepted it in respect of the undisputed properties and respondent No.5 applied for the land in question to be mutated in his name, as a result of this family agreement. The existence and validity of the family agreement have not been challenged.

14. For the aforesaid reasons, the petition deserves dismissal, as being devoid of merit. It is, accordingly, dismissed. The interim order stands vacated. There shall be no order as to costs. merit. It is, accordingly, dismissed. The interim order stands vacated. There shall be no order as to costs.

15. The learned counsel for the petitioner prays that the interim relief may be continued for a period of four weeks from today. The prayer is rejected. continued for a period of four weeks from today. The prayer is rejected.

(sunil)

(Smt.Abhilasha Kumari, J.)