STATE OF GUJARAT Vs. RAJPUT GAMBHIRSINHBHAI BHUPAT BHAI

JUDGEMENT

(1.) By way of these Second Appeals, the the appellants herein challenge the judgment and order passed by the learned Joint District Judge, Bhavnagar, in Regular Civil Appeal No.48 of 1998 dtd. 28/4/1999, whereby the learned District Judge confirmed the order passed in Misc. Civil Application No.76 of 1997 dtd. 30/5/1998 for revocation of heirship Certificate granted by the learned Civil Judge (S.D.), Bhavnagar, in Misc. Civil Application No.175 of 1979.

(2.) As per the case of the present appellants, the present appellants filed application under Sec. 388(b) of the Indian Succession Act for protection of heirship Certificate granted by the Civil Judge (S.D.), Bhavnagar in Misc. Civil Application No.175 of 1979 alleging that the applicants are State Government and are owner of the vacant land situated in the area known as Kumbharwada in Bhavnagar City. As per the village record, the land holder and kabjedar of Survey No.447 and 46/1 is Government. The respondent filed Misc. Civil Application No.175 of 1979 for issuance of heirship certificate under the provisions of the Bombay Regulation Act for Survey No.46 on the ground that the said land was purchased by the predecessor in title of the respondent from the Maharaja of Bhavnagar Sir Takhatsinhjji Jashwantsinhjji vide Lkeha No.29 of Vikram Samvant 1941. The respondent had also filed one map and the Lekh No.28 along with said application. After publishing notice, learned Civil Judge was pleased grant heirship certificate for the land described in the application as nobody had filed any objection on 27/12/1970. It is also the case of the appellants that land purchased under the Lekh No.28 by the respondents predecessor in title was only 53.09 Sq. Mtrs., and the said property was sold away to Luhar Jusab Mohmod by registered documents on 31/5/1943 and again said property was sold to one Adbulbhai Pribhai by registered document on 12/5/1953. So, the appellants predecessor in title was not owner and in possession of the said property. Moreover, the total area of land bearing S.No. 46 is about 6000 Sq. Mtr. and the respondent had obtained heirship certificate for the said land by giving false description of the land and doing fraud and misrepresentation before the Court. In fact, the land for which heirship certificate was obtained belonged to State Government. Therefore, the Heirship Certificate obtained by the opponent is required to be cancelled. The respondents filed written statement in the said matter and thereafter, after considering the documentary evidence produced by both the parties and considering the evidence on record, learned trial Judge was pleased to dismiss the application for revoking the heirship certificate. Against the dismissal of said Misc. Civil Application No.76 of 1997, the appellants preferred Regular Civil Appeal No.48 of 1998, which came to be dismissed by judgment and order dtd. 28/4/1999. Hence, present Appeal is filed by the appellants.

(3.) Initially, these matters were filed as First Appeal Nos.1869 of 2004 and 1870 of 2004, but later on same were converted into Second Appeals vide order dtd. 15/2/2005 and same are admitted on the following substantial question of law: Whether the Courts below were right in granting the heir-ship certificate to the opponent inspite of the findings recorded that the opponents predecessors had no title over disputed land that dispute regarding title is pending in Civil Court.