Allowed

Sanmukhlal Fakirbhai Shah v. State of Gujarat

Gujarat HC30 Jun 2022SCA/20799/2015

Case brief

AI extract

What is this about?

In a special civil application, the High Court of Gujarat quashed an order refusing to certify a mutation entry in the revenue record. The Court found that the underlying partition deed and registered sale deed were undisputed and acknowledged, holding that the revenue authorities erred in rejecting the certification.

What did the court decide?

The orders of the Collector dated 03.04.2013 and the Secretary dated 08.10.2015 were quashed and set aside, and entry no. 3088 was restored.

Sanmukhlal Fakirbhai Shah Vs State of Gujarat — Property and Title | Gujarat HC (2022)

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 20799 of 2015

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SANMUKHLAL FAKIRBHAI SHAH & 2 other(s)

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Versus STATE OF GUJARAT & 5 other(s)

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Appearance:

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MS. KRUTI M SHAH(2428) for the Petitioner(s) No. 1,2,3 ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1 MR ZUBIN F BHARDA(159) for the Respondent(s) No. 5,6 NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4

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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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Date : 30/06/2022

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ORAL ORDER

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With the consent of the learned advocates for the respective parties, the petition is taken up for final disposal.

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Issue Rule, returnable forthwith. Mr. Nikunj Kanara, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent nos. 1-4. Mr. Zubin Bharda, learned Advocate waives service of notice of Rule on behalf of the respondent nos. 5-6.

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By this petition, the petitioner has prayed for quashing and setting aside the order dated 08.10.2015 passed by the Secretary, Revenue Department (Appeals) (hereinafter referred to as "the learned Secretary") whereby the order dated 03.04.2013 of the Collector, has been confirmed.

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Tersely stated are the facts:

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Page 1 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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4.1. Agricultural lands bearing survey no. 379/1, 34/1 p- 1, 344/1/ A and 344/1/B were running in the joint names of the petitioners and the private respondent nos. 5 to 6 (hereinafter referred to as "the private respondents"). It is the case of the petitioners that the petitioner nos. 1 and 2 sold out the half portion of the land situated on the western side admeasuring H-10-Are-30-66 sq. mtrs. to the petitioner no. 3. and as a result whereof entry no.3088 was posted in the revenue record. The entry was disputed by the private respondents which led to the passing of the order dated 21.05.2009 by the Mamlatdar, who, ordered certification of the entry. The private respondent being aggrieved, approached the Deputy Collector who, did not interfere with the order of the Mamlatdar and rejected the revision application vide order dated 19.06.2002. Being aggrieved, the private respondents preferred revision application before the Collector which, came to be allowed vide order dated 03.04.2013 and confirmed by the learned Secretary vide order dated 08.10.2015. The petitioner is aggrieved by the said two orders whereby, the certification has been refused, of entry no. 3088.

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Ms. Kruti M Shah, learned Advocate appearing for the petitioners, submitted that the land was partitioned between the petitioners and the father of the private respondents by executing a partition deed dated 24.05.1974 and as per the said partition, half portion of the land situated on the eastern side, had come to the share of the private respondents whereas, remaining portion, situated on the western side had come to the share of the petitioner nos. 1 and 2. It is submitted that the said family arrangement was strictly in accordance with the provisions of the Hindu Succession Act, 1956. It is next submitted that as a result of the said partition, measurement was carried out in presence of all the parties in the

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Page 2 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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year 1988 and since then, the respective holders are in possession of their respective shares. It is submitted that somewhere in the year 1995, suit was filed by the private respondents and during the pendency of the suit, the Court Commissioner was appointed who, has drawn the panchnama in presence of both the parties. The agreement of the parties, have been recorded about their respective shares, so also, the partition having taken place. Suits filed by the respective parties came to be withdrawn in the year 1996.

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It is further submitted that it is thereafter, that the petitioner no. 3 purchased the portion of the land of the ownership of the petitioner nos. 1 and 2 by executing a registered sale deed on 05.03.2007 followed by the mutation of the entry no. 3088 on 16.03.2007. It is submitted that objection raised by the private respondents is ill-founded inasmuch as, the partition had already taken place among the family members in the year 1974 and thereafter, the parties even acted as per the said partition. The aspect of partition, is further strengthened by the fact that the land was acquired for the purpose of bullet train project under the provisions of the Land Acquisition Act, 1894. The private respondents, have submitted an application before the Land Acquisition Officer and have received compensation of Rs.22,81,020/-. In the statement recorded before the Land Acquisition Officer, the private respondents have categorically described about the factum of partition so also, the land which had come in their favour. Therefore, when there is a partition, and according to which the land has been sold in favour of the petitioner no. 3 vide the registered sale deed, there was no option available to the Collector or to the learned Secretary to have raised the objection as regards discrepancies in the measurement so also

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Page 3 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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the fragmentation. It is further submitted that it is well established principle of law that when there is a registered sale deed in favour of the parties concerned, the entry is to be mutated in the revenue record. Moreover, neither the partition nor the sale deed executed in favour of petitioner no. 3 has been challenged before any Court or before any competent authority. It is therefore urged that the Collector as well as the learned Secretary committed an error in rejecting or refusing the certification of the entry no. 3088 in favour of the petitioner no. 3.

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During the course of hearing, Mr. Zubin Bharda, learned Advocate, was required to take instructions and this Court had passed order dated 15.06.2022 wherein, Mr. Bharda, learned Advocate, has accepted the fact of execution of the partition deed (page 61). The only concern raised was qua the objection raised by the petitioners. Mr. Bharda, learned Advocate, therefore requested for time only with a view to take proper instructions. Upon instructions Mr. Bharda, learned Advocate has fairly conceded before this Court that if the name of the petitioner no. 3 is mutated in the revenue record, the private respondents can have no objection.

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Heard the learned Advocates appearing for the respective parties and perused and considered the documents on record.

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Undisputedly, the land was partitioned between the petitioner nos. 1 and 2 on one hand and the father of the private respondents on the other by partition deed dated 27.05.1974. It is not in dispute that as per the said arrangement, half portion of the land situated in the eastern side had gone to the share of the private respondents while remaining half situated on the western

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Page 4 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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side had come to the share of the petitioners. The partition has been recorded in the village form no. 6 vide entry no. 2624 dated 10.12.1990, though it is not clear as to whether the entry has been certified. Be that as it may, fact remains that the partition has not been challenged. Nothing has been placed on record to suggest that the said entry has been challenged before any higher forum. It is also not in dispute that the measurement was carried out somewhere in the year 1980 in presence of all the parties, which, has also been accepted. Even a suit appears to have been filed which, was subsequently withdrawn in the year 1996. The petitioner nos. 1 and 2 in the additional affidavit have stated thus:

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“1. I state that the private respondents has argued in the last hearing before this Hon’ble Court that there is no demarcation of half share in the property and in absence of that the half portion has been sold out and hence there is no clarity that the land of which side is sold out by way of registered sale deed.

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It is submitted that the said submission is contrary to the record as there is partition deed dated 27.05.1974 whereby Vehchan Karar as well as subsequent understanding among the parties dated 08.11.1981 which clearly shows that so far as the half share of Nathubhai in Survey no. 342/1 +379/1 is concerned, it is starting from partition line from north to south situated in eastern side and so far as the share of Sanmukbhai Fakirdas Shah is concerned his half share is to be treated in the western side. Thus there is a clear demarcation of half portion of the said lands going into the share of Nathubhai Fakirdas Shah and Sanmukbhai Fakirdas Shah..

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I further state that the private respondents have also admitted before the Land Acquisition Officer Valsad by stating that the land situated on eastern side belongs to them and the same is also recorded in the Panchnama in the suit and on the basis of the land situated on eastern side, he has sought compensation from the Land Acquisition officer as that part of the land has been acquired for Bullet Train Project under the Land Acquisition Act….

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Page 5 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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It is submitted that not only that but the private respondents have also obtained compensation worth Rs.22,81,020/-, as per the information provided to the present deponent from the office of Land Acquisition officer by letter dated 01.10.2021….”

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The said averments made by the petitioners have not been disputed by the private respondents.

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Therefore, the execution of the partition deed so also the respective shares and demarcation are not in dispute. The petitioner nos. 1 and 2 have executed registered sale deed in favour of the petitioner no. 3 and on the basis whereof, an application was made to the Mamlatdar for certification of the entry and as per the said entry, the details of the sale deed and the location has been mentioned. The private respondents being aggrieved had preferred an appeal before the Deputy Collector who, rejected the same and whereby, the order of the Mamlatdar stood confirmed. In the appeal before the Collector, the Collector was of the opinion that there are no separate 7/12 forms and that in the 7/12 forms the name of the petitioner no. 3 is mentioned which, is not in sync with the 7/12 forms. Moreover, there is an objection by the co-owners. On this ground, the order of the Mamlatdar and the Deputy Collector came to be quashed and set aside. The said order of the Collector, has been confirmed by the learned Secretary reiterating the reasons given by it. In the opinion of this Court, in the peculiar facts of this case, the Collector and the learned Secretary could not have refused certification on the aforesaid grounds. The partition among the family members is very much in place which, still holds the field and is not disputed. Moreover, the private respondents during the land acquisition proceedings, have submitted an application seeking compensation and have also

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Page 6 of 7

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C/SCA/20799/2015 ORDER DATED: 30/06/2022

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received compensation. In the statement before the land acquisition officer they have identified the land in their favour. Therefore, the reasonings given by the Collector in the opinion of this Court, are not in the right earnest and therefore, deserves to be quashed and set aside. More particularly, when there is a registered sale deed executed by the petitioner no. 1 and 2 in favour of the petitioner no. 3 which, has not been challenged before any Court of competent jurisdiction. Even otherwise, the parties, have come to the consensus that the partition is in place. In view thereof, the order of the Collector dated 03.04.2013 as well as the order of the learned Secretary dated 08.10.2015 deserve to be quashed and set aside and are hereby quashed and set aside. Consequently, entry no. 3088 is restored. Parties to the petition shall act accordingly.

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The petition stands allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

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(SANGEETA K. VISHEN,J)

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SINDHU NAIR

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Page 7 of 7

Sanmukhlal Fakirbhai Shah v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Sanmukhlal Fakirbhai Shah v. State of Gujarat

Case brief

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What did the court decide?

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