BHIKHABHAI ISHWARBHAI PATEL & Ors. v. KANJIBHAI CHATURBHAI & Ors.

CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 05/12/2008 ORAL JUDGMENT

1. The petitioners who are all heirs of one SCA/8474/1997 JUDGMENT deceased Ishwarbhai Patel (petitioner Nos.1 to 9) and heirs of deceased Harjibhai Patel (petitioner Nos.10 to 13) have challenged the orders made by the State Government on 14.8.1997/15.9.1997 in Revision Application No.9 of 1995 (Annexure E) whereby the order of Collector, Ahmedabad dated 29.11.1994 made in Revision Application No.32 of 1994 (Annexure D) came to be confirmed, which in turn had confirmed the order of Deputy Collector, Dholka dated 25.4.1994 in RTS Appeal No.28 of 1988 (Annexure C) cancelling the Mutation Entry No.3983 dated 17.9.1985 (Annexure A).

2. To understand the controversy, it is necessary to take note of the fact that one Shri Kalidasbhai had three sons named Ramabhai, Zinabhai and Harjibhai. The Branch of Ramabhai contained Chaturbhai and other respondents being heirs of deceased Chaturbhai. The Branch of Zinabhai consisted of Ishwarbhai and his heirs being petitioner Nos.1 to 9 while branch of Harjibhai comprised of the remaining petitioners. It is the say of the petitioners that on death of Ramabhai Kalidasbhai, names of his heirs were entered in the revenue record SCA/8474/1997 JUDGMENT vide entry No.3666. Similarly, vide entry No.3667 mutation took place on death of Harjibhai and names of his heirs came on record. On 17.1.1985 entry No.3983 came to be made on death of Ishwarbhai Zinabhai and the respondents relinquished their shares in the land bearing S.No.548 in favour of the petitioners. The said entry was certified on

21.2.1985.

3. The grievance of the petitioners is to the effect that entry No.3983 dated 17.1.1985 came to be challenged by the respondents after a period of three years by preferring an appeal before the Deputy Collector. That appeal was dismissed vide order dated

14.2.1989 holding that the appeal was barred by limitation. That the respondents carried the matter in revision before the Collector who vide order dated

21.6.1990 partly allowed the revision and remanded the matter back to Deputy Collector for deciding afresh.

4. In the second round, on 9.8.1991 the Deputy Collector dismissed the appeal on merits. The SCA/8474/1997 JUDGMENT respondents, therefore, once again went before the Collector by way of Revision Application No.4 of 1992 which came to be allowed by order dated 30.11.1993 directing the Deputy Collector to decide afresh.

5. In the third round, the Deputy Collector made an order on 25.4.1994 coming to the conclusion that the grievance ventilated by the respondents was justified and the entry in question i.e., entry No.3983 was required to be cancelled. The petitioners challenged the aforesaid order dated 25.4.1994, being Annexure C, before the Collector by way of Revision Application No.32 of 1994. The Collector rejected the said Revision Application prompting the petitioners to prefer Second Revision Application being Revision Application No. 9 of 1995 before the State Government which came to be decided on 14.8.1997/15.9.1997. The State Government has upheld the order made by the Collector and rejected the Revision Application.

6. The learned advocate for the petitioners has assailed the order made by the Deputy Collector on

25.4.1994, made by the Collector on 29.11.1994 and SCA/8474/1997 JUDGMENT made by the State Government on 14.8.1997/15.9.1997 on a preliminary ground of limitation. According to the learned advocate, the respondent authorities had erred in entertaining the appeal after having dismissed the same in the first round on the ground of limitation. That admittedly the appeal had been preferred before the Deputy Collector in the first round beyond the period of three years from the date of entry, namely 17.1.1985 and, therefore, the orders made by the respondent authorities in the third round of proceedings were required to be quashed and set aside only on this limited count. In support of the submissions made, it was submitted that when the law does not permit an authority to initiate suo motu revision beyond a reasonable period of time the appeal also cannot be entertained on parity of reasoning.

7. Alternatively it was contended on merits that the entry had been made on the basis of family arrangement and the authorities had erred in coming to the concussion that this was not a family arrangement but the respondents were shown to have SCA/8474/1997 JUDGMENT relinquished and transferred their rights in the property because consideration had passed from the petitioners to the respondents. It was submitted that the law was settled that family arrangement need not be in writing and an oral arrangement was recognized by law. That in fact in absence of any written document the petitioners were justified in contending that there was an oral family arrangement which was given effect to by way of the entry in question. It was further contended that the authorities had wrongly placed reliance on the aspect of consideration having passed from the petitioners to the respondents without appreciating that the respondents had failed to discharge the burden of showing any consideration having been involved in the family arrangement. For this purpose reliance was placed on affidavit dated 7.1.1995 (Annexure F) made by one Smt. Ichhaben, daughter of Harjibhai Kalidas explaining that in the earlier statement where it was mentioned that the consideration had been received in cash meant that the customary requirement had been satisfied by deceased Ishwarbhai and that no consideration had in fact been received in cash. The SCA/8474/1997 JUDGMENT learned advocate, therefore, emphasized that despite this piece of evidence, the authorities had wrongly accepted the say of the respondents without there being any evidence in support of the stand of the respondents. He, therefore, urged that all the three orders are required to be quashed and set aside holding that entry made on 17.1.1985 was not required to be cancelled in relation to S.No.548 of the land in question.

8. On behalf of the respondents the learned advocate has relied upon the orders of the respondent authorities and submitted that the same are findings of fact recorded after appreciation of evidence on record and no interference was warranted.

9. The learned AGP appearing for the respondent authorities has also been heard.

10. In relation to the first ground of limitation, suffice it to state that the petitioners ought to have challenged the first order dated 21.6.1990 made by the Collector when the revision application was SCA/8474/1997 JUDGMENT partly allowed directing the Deputy Collector to decide the matter afresh. The petitioners having failed to challenge the said order at the relevant point of time cannot be permitted to raise the issue which has attained finality in 1990.

11. It is true that the law permits a family arrangement to be in place orally and no written document is necessary, but that is not the case of the respondent authorities. It is not the say of the respondent authorities that a family arrangement has to be necessarily in writing. In fact the respondent authorities have not accepted the theory of family arrangement in light of the fact that consideration has passed as recorded. For this purpose the authorities have placed reliance on the statements recorded under the provisions of Section 135D of the Bombay Land Revenue Code. Therefore, it is not a case where the authorities have recorded a finding without any evidence. If the petitioners wanted to dispute the said finding of fact, it was for the petitioners to place on record the statements recorded in proceedings under Section 135D of the SCA/8474/1997 JUDGMENT Code. The petitioners cannot turn around and state that the respondents had failed to produce any evidence before the Deputy Collector when the order dated 25.4.1994 was made in RTS Appeal No.28 of 1988. That burden had been discharged by the respondents in the said proceedings and thereafter the successive revision applications before the Collector and the State Government had been preferred by the petitioners. Therefore, the onus was on the petitioners to disprove, or to show that the finding recorded by the Deputy Collector was incorrect. Not only the petitioners have failed to do so before the Collector but even before the State Government.

12. In aforesaid set of facts and circumstances of the case, it is apparent that the petitioners have not been able to make out any case warranting interference with the concurrent findings of fact recorded by the two revisional authorities after appreciation of evidence on record. The petition is accordingly rejected. Rule is discharged. There shall be no order as to costs. SCA/8474/1997 JUDGMENT (D.A. Mehta, J.) ... (karan)