GOPALBHAI MANJIBHAI PATEL Vs. MOHANBHAI UKHEDBHAI PATEL

JUDGEMENT

(1.) THE short facts of the case are that the Will was executed by Bodiben on 1.3.1990 giving her property to Mohanbhai - respondent No.1. After the death of deceased Bodiben, Entry No. 3653 was mutated in the revenue record on 21.8.1991 based on the Will and it was certified on 14.10.1991. The petitioners challenged the entry by preferring Appeal No. 55 of 1993 before the Deputy Collector, who, vide order dated 30.10.1993, cancelled the entry and remanded the case to the Mamlatdar for holding the inquiry afresh. Respondent No.1, against the order of the Deputy Collector, carried the matter before the Collector, being Revision No. 191 of 1993, who, vide order dated 16.8.1994, rejected the revision. It appears that the matter was further carried in revision by respondent No.1 before the State Government, being No. 87 of 1994, and the State Government allowed the revision and restored Entry No. 3653 in the revenue record and it is, under these circumstances, the present petition.

(2.) I have heard Mr. Vyas for the petitioners, Mr. M.B. Rana with Mr. Mishra for respondent No.1 and Ms. M.D. Mehta, learned Assistant Government Pleader, for respondent No.2.

(3.) UPON hearing the learned advocates appearing for both the sides, it appears that it is not in dispute that, for challenging the legality and validity of the Will and for asserting the right in the property, the petitioners have preferred Civil Suit No. 19 of 1992 in the Court of Civil Judge (J.D.), Dharampur and the said suit was pending at the time when the matter came to be considered by the State Government. It appears that the State Government has proceeded on the basis that the legality and validity of the Will cannot be gone into by the revenue authority and until proper declaration is made by the Civil Court that the Will is bogus or that the legal heirs of the author of the Will had right in the property, entry should be allowed to be continued in the revenue record. Such a view taken by the State Government in the revisional jurisdiction cannot be said as by committing jurisdictional error nor can be said that the exercise of the discretion by the State Government is so perverse, which may call for the interference by this Court under Article 227 of the Constitution.