PATEL BHANUBHAI DHORIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS petition, under Article 226 of the Constitution of India, is preferred against the order dated 31.01.2012 (08.02.2012), passed by the Additional Secretary (Appeals), Revenue Department, whereby the Revision Application filed by respondent No.1, has been allowed and the orders dated 03.08.2001 passed by the Mamlatdar, Thasra, (respondent No.3) 09.03.2005, passed by the Deputy Collector and 31.12.2005 passed by the Collector (respondent No.2), respectively, have been quashed and set aside.

(2.) THE brief facts of the case emerging from the record are that Somabhai Chaturbhai, grandfather and predecessor-in-title of the petitioner, owned ancestral property. He had two sons viz. Dhoribhai Somabhai, father of the petitioner and Manibhai Somabhai, the uncle of the petitioner. THE father of the petitioner passed away on 02.09.1999, leaving behind the petitioner and other three sons as heirs and legal representatives. THE lands in question, bearing Survey Nos.243/2, 23, 32, 226, 248 and 1622, devolved upon the father and uncle of the petitioner. It is the case of the petitioner that a partition took place between his father and his uncle and the said lands were divided between them. According to the petitioner in respect of lands forming part of Survey Nos.23, 32, 226, 248 and 1622, the father of the petitioner executed a Will in favour of respondents Nos.4, 5 and 6 (brother of the petitioner). THE grievance of the petitioner is that he had a right in the aforesaid lands, and the Will could not have been executed with regard to the same in favour of his brothers, against the interest of the petitioner. Mutation Entry No.2401 came to be recorded in the revenue record on 10.03.2000, on the basis of the Will. THE petitioner lodged an objection against the certification of this entry before the Mamlatdar (respondent No.3), stating that the said entry could not have been certified and the names of only three sons of deceased Dhoribhai Somabhai (respondents Nos.4 to 6) could not have been entered, as the petitioner also has a right in the said property. By order dated 14.09.2001, the Mamlatdar directed the Talati to enter the names as per the Pedhinama (family tree). Against the aforestated order, respondent No.4 preferred R.T.S. Appeal No.36 of 2003 before the Deputy Collector, Nadiad which came to be rejected by order dated 14.03.2005. THE Deputy Collector by order dated 14.03.2005 confirmed the order passed by the Mamlatdar. Against the aforesaid orders of the Deputy Collector, respondents Nos.4 to 6 filed R.T.S. Appeal No.10 of 2005 before the Collector under the provisions of Rule-108(6) of the Gujarat Land Revenue Rules, 1972. THE Collector, by his order dated 13.12.2005, dismissed the appeal filed by the respondents Nos.4 to 6 and confirmed the orders of the Mamlatdar, Collector and Deputy Collector. Respondents Nos.4 to 6, therefore, preferred a Revision before the Additional Secretary (Appeals) against the orders passed by the Collector. THE said Revision Application has been allowed by the impugned order dated 31.01.2012 (08.02.2012) giving rise to filing of the present petition.

(3.) IN the impugned order passed by the Additional Secretary (Appeals), the reasons stated for arriving at the conclusion that the disputed entry be certified, are that in respect of the land in question, Dhoribhai Somabhai (father of the petitioner) has executed a Will on 02.06.1999, in favour of respondents Nos.4 to 6, only. The Additional Secretary (Appeals) has observed that whether the Will is false or not, or whether the father of the petitioner could have executed the Will only in favour of certain legal heirs, while leaving out the petitioner, are matters that cannot be gone into, or decided by the Revenue Authorities. It is only the Competent Civil Court that can decide a challenge to the Will. It is stated that the Revenue Authorities are bound to give effect to registered Will, until and unless it is set aside. It has further been observed in the impugned order that it does not appear that the petitioner has challenged the Will before the Competent Court.