MUMTAZ MEHMOODKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE. The learned AGP Ms Pandit appears for respondent no.1 and 2 and Mr Jigar Raval appears for respondent nos.3, 4 and 5 and waive notice of Rule for the respective respondents. With the consent of the parties, the matter is taken up for final hearing.

(2.) The short facts of the case are that revenue entry no.1094 dated 9.5.1981 came to be mutated in the revenue record for transfer of the property by registered will dated 5.11.1980 and it appears that the entry came to be mutated on account of death of the executor of the will on 1.12.1980. In the entry it has been recorded that the notices were served and thereafter it is certified by the Deputy Mamlatdar on 9th July 1989. Respondents nos.3, 4 and 5 preferred appeal in RTS No.18 of 1993, after a period of about 12 years, before the Deputy Collector, who partly allowed the appeal and directed the issuance of the notice under Section 135D to all the interested persons and the matter was remanded. It appears that the matter was carried before the Collector by way of revision being Revision No.6 of 1994 and the said revision came to be dismissed as per the order dated 19th August 1994 by the Collector, Vadodara. The matter was carried further by the petitioner herein before the Secretary of the State Government in revision and ultimately as per the order dated 24.9.2001 the Secretary has dismissed the revision. However, the pertinent aspect is that the Secretary has also recorded that the civil suit is pending before the Civil Court regarding the alleged rights of the respondents nos.3, 4 and 5 and the Secretary observed that until the finalisation of the civil suit the revenue officer can examine the right by way of succession and therefore maintained the order of the Deputy Collector and the Collector and it is under these circumstances the present petition.

(3.) The contention raised on behalf of the petitioner by Mr Hakim is that the civil suit being Civil Suit No.972 of 1993 which is preferred by respondent no.3, 4 and 5 for declaration regarding the effect of the will and for right of respondents nos.3, 4 and 5 over the property is pending. He submitted that the entry came to be mutated as back as in the year 1981 and the appeal was preferred after a period of about 12 years. Therefore, he submitted that until the outcome of the civil suit proceedings, the entry ought not to have been set aside by issuing a fresh notice under Section 135D on the basis of the successory right over the property in question and therefore in his submission the order of the Secretary deserves to be quashed.