KASHIBEN LALLUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) .Heard learned Counsel.

(2.) This Special Civil Application is directed against the order dated 29-10- 1998 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN B.A. 764 of 1993 dated 29-10-1998 whereby the Revision Application was rejected. The petitioners claiming to be the legal heirs of Kashiben Lallubhai Patel have raised a grievance that the entitlement of one more unit in their favour was not considered by the authorities under the Gujarat Agricultural Lands Ceiling Act. This is the second round of litigation. In the first round, the matter had been contested upto Gujarat Revenue Tribunal which passed the order on 12-12-1996. Aggrieved from this order dated 12-12-1996 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN B.A. 764 of 1996 Special Civil Application No. 832 of 1997 was preferred before this Court. This Court decided the said Special Civil Application on 17-9-1997 and remanded the matter back to the Gujarat Revenue Tribunal on the ground that the question of entitlement of one more Unit had not been considered by the Tribunal and, therefore, the order dated 12-12-1996 passed by the Gujarat Revenue Tribunal was set aside and the Tribunal was directed to hear and decide the revived proceedings on the aspect as to whether the petitioners were in any way entitled to one more Unit or not. Thereafter, the Gujarat Revenue Tribunal has passed the impugned order dated 29- 10-1998. The Tribunal has considered that the entitlement of one more unit is claimed on the ground that the petitioner-Keyurbhai Lallubhai Patel was adopted by Kashiben on 12-1-1990, whereas the position is to be seen as on 1-4-1976 and, therefore, there was no entitlement for one more Unit. The learned Counsel for the petitioner has submitted that the petitioner No. 1/1 was taken in adoption in fact at the time when he was 10 years old, and it has been submitted that the petitioner No. 1/1 was born in 1965 and, therefore, he had been taken in adoption in 1975 and merely because the adoption deed has been registered in 1990, the entitlement of one more Unit has been wrongly denied.

(3.) I have considered the aforesaid argument raised by the learned Counsel for the petitioners and have also gone through the impugned order passed by the Revenue Tribunal and the other relevant documents, which are available on record. The Tribunal has categorically mentioned in para 6 of the impugned order 1999 (3) KASHIBEN L. PATEL v. STATE (Spl.C.A.)-Calla, J. 2713 dated 29-10-1998 that Kashiben herself had filed an affidavit before the Mamlatdar and the Form in which she had given out the details of the lands held by her. These details were disclosed by her on 29-6-1976 and even at that time i.e. on 29-6-1976 she did not disclose any fact with regard to the adoption as is claimed by the petitioners. There was no mention about the adoption in these details. It is, therefore, clear that had the petitioner No. 1/1 been adopted in 1975, as is being claimed today before this Court, Kashiben would not have missed to make the mention and disclose the factum of adoption in the details, which she gave out in June 1976. Furthermore, the copy of the adoption deed itself has been placed on record by the petitioners as Annexure 'B' with this Special Civil Application. This adoption deed also does not mention any where that the adoption had in fact taken place in the year 1975 or at any point of time before 1-4-1976 and the date of registration of this adoption deed is 9-1-1990. All that has been said in para 5 of this adoption deed is that after the death of the natural father of petitioner No.1/1 he was living with Kashiben and was getting such love and affection from her as he used to get from his natural mother and further that Kashiben had desired since long to take him in adoption and for that purpose the formalities had taken place and only registration remained to be done, which is being done now. On the basis of the mention made in this adoption deed, as aforesaid, it cannot be said that the adoption had in fact taken place in 1975 or at any point of time prior to 1-4-1976. It also does not mention as to exactly at what point of time the adoption took place. Merely because it is mentioned in this document that Kashiben desired since long to take him in adoption and that the formalities had taken place, it cannot be made out as to at what point of time the adoption had taken place. In such matters, the claims cannot be decided on the basis of oral averments or conjectures or surmises. In order to establish the lawful claim for this second Unit, it should have been proved on record as a positive fact that adoption had taken place prior to 1-4-1976. A person may carry a desire to take somebody in adoption for any number of years. In the present case, when there is a registered adoption deed of 1990, which itself does not disclose that the adoption had taken place at a certain point of time in past and prior to 1-4-1976, the rights on the basis of the adoption deed could not be made to flow prior to the registration of the adoption deed. The learned Counsel for the petitioners has also made a reference to the Will, which was executed by the husband of Kashiben which bears the date of 14-2-1946 and he has submitted that in that Will her husband had expressed a desire that Kashiben - his wife may take one of his nephews in adoption and that petitioner No. 1/1 is the nephew of Kashiben's husband. That may be so, but it does not go to establish in any manner that the adoption had taken place in 1975 or prior to 1-4-1976. Even in this adoption deed no time-limit has been fixed for the purpose of taking the nephew in adoption. Not only that in the whole petition there is no averment that in the Form in which the details had been disclosed by Kashiben on 29-6-1976, the factum with regard to adoption of petitioner No. 1/1 prior to 1-4-1976 or in 1975 had been mentioned. The learned Counsel for the petitioners referred to para 3.10 of petition at page 13. The portion to which the reference was made reads as under :