Gujarat High Court
Bhaveshbhai Lavjibhai Savliya vs The Special Secretary (Appeals) on 27 March, 2026
NEUTRAL CITATION
C/SCA/1605/2018 JUDGMENT DATED: 27/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1605 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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BHAVESHBHAI LAVJIBHAI SAVLIYA
Versus
THE SPECIAL SECRETARY (APPEALS) & ORS.
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1
RM NAJMUDDIN R MEGHANI(7834) for the Petitioner No. 1
MS HIMANI SHAH AGP for the Respondent(s) No. 1,2,3,4
RULE SERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 27/03/2026
ORAL JUDGMENT
1. By filing present petition under Article 226 of
the Constitution of India as well as under the
provision of the Gujarat Land Revenue Code
(hereinafter referred to as “Revenue Code” for
short), the petitioner has challenged the order
dated 19.07.2017 passed by the respondent no.1 –
Special Secretary (Appeals), Revenue Department in
Revision Application No.MVV/HKP/NARMADA/30/2016
and the order dated 09.05.2016 passed by the
respondent no.2 – Collector in Land/Entry/ Review/
Case No.55/2013 and thereby prayed for restoration
of Entry No.1395 dated 19.02.2007 as well as
subsequent entries in the revenue record.
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2. Heard learned advocate, Mr. Vimal Purohit Shah for
the petitioner and learned AGP Ms. Himani Shah for
the respondent nos.1 to 4. Though served, none
appears for the respondent no.5.
3. Learned advocate, Mr. Vimal Purohit referred to
the facts of the case and submitted that the land
bearing Survey No.283 situated in the sim of
Village : Agar, Taluka : Tilakwada, District :
Narmada was originally belonging to one Rohit
Dhanabhai Virabhai, who during his lifetime, had
bequeathed “Will” in favour of his nephew i.e. the
respondent no.5 herein as the Rohit Dhanabhai
Virabhai was not having straight line legal heirs.
He submitted that after sad demise of said
Dhanabhai Rohit in the year 2007, Entry No.1395
came to be mutated in the revenue record on
19.02.2007 on the basis of the Will produced by
the respondent no.5 herein and thereby, name of
the respondent no.5 came to be mutated in the
revenue record and the said entry was also
certified on 04.04.2007 and thus, the name of the
respondent no.5 was running in the revenue record.
He submitted that thereafter, the respondent no.5
herein had sold out the said land to one
Parshottambhai Karshanbhai Desai by way of
executing registered sale deed on 18.05.2010 and
on the basis of the said registered sale deed,
Entry No.1629 came to be mutated in the revenue
record on 24.02.2011, which was subsequently
certified on 04.05.2011. He submitted that
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thereafter, the said Parshottambhai Karshanbhai
Desai had sold out the said land to Rakeshbhai
Kalubhai Dhameliya and Bharatbhai Bachubhai
Dhameliya by way of executing registered sale deed
and on the basis of the said sale deed, Entry
No.1675 came to be mutated in the revenue record
on 24.06.2011 and subsequently certified also on
01.08.2011. He submitted that thereafter the
aforesaid persons have sold out the land to the
petitioner herein by way of executing registered
sale deed on 13.03.2012 and on the basis of the
said registered sale deed, Entry No.1712 came to
be mutated in the revenue record on 13.03.2012,
which was subsequently certified on 18.04.2012
and, thereafter, the petitioner became to the
absolute owner and occupier of the land in
question. He submitted that in fact, the
petitioner was earlier known as “Bhikhubhai” but
he had changed his name from “Bhikhubhai” to
“Bhaveshbhai”, for which, necessary procedure was
also followed by him including by publishing it in
the Government Gazette and on the basis of said
Government Gazette, he applied before the revenue
authority for rectification of his name from
“Bhikhubhai” to “Bhaveshbhai” and accordingly,
Entry No.1747 came to be mutated in the revenue
record on 29.01.2013. He submitted that however to
the utter shock and surprise of the petitioner,
the respondent – Collector had initiated suo motu
proceedings under Section 108(6) of the Revenue
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Code by taking Entry No.1395 dated 19.02.2007 into
review and notice came to be issued and pursuant
thereto, the responded no.5 had remained present
and submitted his reply, however without properly
considering the said reply, the respondent –
Collector, by an order dated 09.05.2016, cancelled
Entry No.1395 dated 19.02.2007 and the said order
was challenged before the respondent – SSRD by
filing revision application, however, the said
revision application came to be rejected
confirming the order of the respondent –
Collector, therefore, present petition has been
preferred.
4. Learned advocate, Mr. Purohit submitted that the
petitioner is the bonafide purchaser of the land
in question on payment of entire sale
consideration, that too, by way of executing
registered sale deed and at the time of execution
of the said sale deed, he had verified all the
revenue records and, thereafter, entered into sale
transaction. He submitted that in fact, entry
based on the registered sale deed was already
mutated by the revenue authority and subsequently
certified also, however when the entry for
rectification of the name was tried to be mutated,
suo motu proceedings have been initiated for the
entry, which was mutated in the revenue record in
the year 2007. He submitted that in fact, notice
issued under Section 108(6) of the Revenue Code
was not issued upon the petitioner but it was
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issued upon the responded no.5, who had remained
present before the authority concerned and
submitted his reply but it was not considered and
said entry was cancelled, which would affect the
rights of the petitioner. He submitted that if the
said notice would have been served upon the
petitioner, in that event, he would have remained
present and pointed out all above facts but in his
absence, the said suo motu proceedings have been
undertaken, therefore, there were defects at the
hands of concerned revenue authority while
initiating suo motu proceedings. He submitted that
if the Hon’ble Court would make cursory glance
upon the order dated 09.05.2016 passed by the
respondent – Collector while cancelling Entry
No.1395 mutated in favour of the respondent no.5,
in that event, the respondent – Collector has give
two reasons i.e. (1) “Will” is unregistered and
the Probate Certificate was not obtained from the
competent authority; and (2) the respondent no.5
has not produced proof as to whether the land in
question belongs to private ownership of the
deceased or it was ancestral property. He,
however, submitted that those are the disputed
questions of facts and law and it cannot be
decided in revenue record and on the contrary, it
can be decided in civil court, therefore, the
revenue authority does not have jurisdiction to
make such observation. He further submitted that
the aforesaid observation is against the settled
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law. In support of this submission, he has
referred to and relied upon the decision of this
Hon’ble Court in case of Ramniklal (Ramanlal)
Trikamji Sevak Vs. State of Gujarat & Ors.,
reported in 2013 LawSuit (Guj) 157 and submitted
that in fact, there is no requirement of the
probate certificate on the basis of the Will at
the time of mutation of entry. He, therefore,
submitted that cancellation of the entry on the
aforesaid ground of non-obtaining of probate
certificate is illegal and unjust, therefore, the
impugned orders of the revenue authority are
required to be quashed and set aside.
5. Learned advocate, Mr. Purohit submitted that entry
based on Will was mutated in the revenue record in
the year 2007 in favour of the respondent no.5,
who sold out the land in question to other and,
thereafter number of sale transactions had taken
place and as stated above, the petitioner is the
bonafide purchaser of the land in question and
before execution of the said transaction, he had
verified all revenue record. He submitted that
admittedly, the entry was mutated in the year
2007, which has been taken into suo motu in the
year 2013 and thus, there is gross delay in
initiation of the suo motu proceedings, therefore,
the case of the petitioner is squarely covered by
the decisions of the Hon’ble Supreme Court as well
as this Hon’ble Court. In support of this
submissions, he referred to and relied upon the
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decision of the Hon’ble Supreme Court in case of
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim,
reported in (1997) 6 SCC 71; the decisions of this
Hon’ble Court in case of Aambabhai Rajabhai
Bharwad Vs. State of Gujarat & Ors., reported in
2024 (3) GLR 2155; the Judgment dated 16.10.2018
delivered in Special Civil Application
No.20990/2015 (in case of Nathubhai Bhagwanbhai
Dudhat Vs. State of Gujarat); in case of Minaxiben
Shashikantbhai Patel Vs. Dist. Collector, reported
in 2007 (1) GLR 277; and in case of Jhaverbhai
Savjibhai Patel Vs. Kanchaben Nathubhai Patel,
reported in 2005 (3) GLR 2255. He, therefore,
submitted that in view of the observations made by
the Hon’ble Supreme Court as well as this Hon’ble
Court in the aforesaid decisions, it it settled
that suo motu proceedings has to be initiated
within reasonable time, however in the present
case, admittedly suo motu proceedings have been
initiated after a period of seven years. It is,
therefore, urged that considering above facts of
the case, the present petition may be allowed.
6. On the other hand, learned AGP Ms. Himani Shah has
opposed the present petition contending inter alia
that at the time of passing impugned orders, the
revenue authorities have taken into consideration
all the facts of the case and passed orders, which
may not be interfered with. He submitted that
Entry No.1395 came to be mutated in the revenue
record on 19.02.2007 based on Will, which is
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unregistered, therefore, when the said defect had
come to the notice of the respondent – Collector,
show cause notice was issued upon the respondent
no.5 to show cause as to why the said entry should
not be cancelled and while undertaking such
proceedings, the respondent – Collector had jumped
to a conclusion that some lapse is found out on
the part of the revenue authority concerned,
therefore, the said entry was cancelled and the
said order has been rightly confirmed by the
respondent – Secretary, therefore, there is no
error of law committed by the authorities
concerned, which requires interference at the
hands of this Hon’ble Court.
7. Learned AGP Ms. Shah has referred to provision of
Section 135D of the Revenue Code, more
particularly, Section 135D(2), which provides for
“Whenever a designated officer makes an entry,
either manually or electronically in the register
of mutations, he shall at the same time intimate
to all persons appearing from the record of rights
or register of mutations to be interested in the
mutation and to any other person whom he has
reason to believe to be interested therein in the
manner as may be prescribed.” and submitted that
as per the said provision, notice was issued but
admittedly the executor of the Will passed away
and his heirs were not brought on record,
therefore, the notice was issued upon the
respondent no.5 and not to the petitioner herein.
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She, therefore, submitted that if at all this
Hon’ble Court may be pleased to allow the present
petition, in that event, it would affects the
rights of the heirs of the executor of the Will as
their names would automatically be deleted from
the revenue record, therefore, they are required
to be heard as they are aggrieved parties. She,
therefore, submitted that at the most, the matter
may be remanded back to the concerned authority
for fresh consideration.
8. In view of the rival submissions canvassed by
learned advocates appearing for the parties and
having considered the documents available on
record including the impugned orders, it is found
out that the dispute is with regard to the
cancellation of Entry No.1395 mutated in the
revenue record on 19.02.2007, which has been taken
into suo motu after a period of seven years.
9. Having considered the documents, it appears that
the land in question was originally belonging to
one Rohit Dhanabhai Virabhai, who during his
lifetime, had executed “Will” in favour of his
nephew i.e. the respondent no.5 herein and after
sad demise of said Dhanabhai Rohit in the year
2007, Entry No.1395 came to be mutated in the
revenue record on 19.02.2007 on the basis of the
Will produced by the respondent no.5 herein, which
was also certified on 04.04.2007 and thereby his
name entered into the revenue record. However
subsequently, the respondent no.5 entered into
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sale transaction with one Parshottambhai
Karshanbhai Desai, who again sold the said land to
Rakeshbhai Kalubhai Dhameliya and Bharatbhai
Bachubhai Dhameliya, who again sold the land to
the petitioners herein by way of executing
registered sale deed. It is required to be noted
that all above sale transactions had taken place
by way of executing registered sale deed and based
on the said registered sale deed, entries were
mutated and subsequently certified also. It is
required to be noted that the petitioner was
earlier known as “Bhikhubhai” but he had changed
his name from “Bhikhubhai” to “Bhaveshbhai”,
therefore, the applied for rectification of the
revenue record and accordingly, Entry No.1747 came
to be mutated in the revenue record on 29.01.2013
and thus till mutation of said entry, there was no
proceedings initiated by the authority concerned.
However subsequent, the respondent – Collector had
initiated suo motu proceedings under Section
108(6) of the Revenue Code against the mutation of
entry Entry No.1395 dated 19.02.2007 by issuing
notice upon the respondent no.5 herein, in whose
favour, Will was executed and pursuant thereto, he
remained present before the respondent – Collector
and submitted his reply but it has not been
considered and the aforesaid entry has been
cancelled and the said decision has been upheld by
the respondent – SSRD in the Revision Application
preferred by the petitioner and thus, aforesaid
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two orders have been assailed before this Hon’ble
Court by filing present petition. However if the
order of the respondent – Collector is carefully
seen, in that event, it is found out that on two
counts, Entry No.1395 has been cancelled i.e. (1)
“Will” is unregistered and the Probate Certificate
was not obtained from the competent authority; and
(2) the respondent no.5 has not produced proof as
to whether the land in question belongs to private
ownership of the deceased or it was ancestral
property.
10. Now I would like to consider the grounds on which
the impugned entry has been taken into suo motu
i.e. (1) “Will” is unregistered and the Probate
Certificate was not obtained from the competent
authority; and (2) the respondent no.5 has not
produced proof as to whether the land in question
belongs to private ownership of the deceased or it
was ancestral property. From the facts of the
present case, it is evident that there is no
dispute about unregistered Will and probate has
not been obtained. In this regard, I would like to
refer to and rely upon the decision of this
Hon’ble Court in case of Ramniklal (Ramanlal)
Trikamji Sevak (supra) upon which reliance has
been placed by learned advocate, Mr. Purohit. In
the said decision, this Hon’ble Court has observed
as under,
“5. The copy of the Will is produced at Annexure-
E and the perusal thereof, shows that there
is no reference for succession by will of any
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property located at Mumbai or within the
boundaries of corporation area of Mumbai. The
Will is pertaining to property located at
Junagadh which area is not covered in the
presidential town. It is by now well settled
that if any property is not located in the
presidential town and is outside the area of
presidential town, the probate is not a must
for succession of the rights of the parties
based on the will. The reference may be made
to the decision of Apex Court in case of
Clarence Pais and Others V/s. Union of India
reported in (2001) 4 SCC 325 and the another
decision of this Court based on the above
referred decision of the Apex Court in case
of Minaxiben S.Patel V/s. District Collector,
Gandhinagar reported in 2007(1) GLR 277. In
the said decision, this Court observed at
para-4 to 8 as under:
4. As such, on the aspects of the existence
of the Will, there is no dispute.
Whether the Will is genuine or not is
also not in dispute before this Court.
Whether by the present Will, rights of
the other legal heirs of the deceased
are affected in any manner or not is
also not an aspect, which is the subject
matter of this petition. The only
aspect, which arise for consideration is
legality and validity of the stand taken
by the District Collector for insistence
of the probate before making mutation
entry in the revenue record based the
will of the deceased.
5. In my view, as per the provisions
of Section 57 of the Indian Succession
Act, 1925 (hereinafter referred to as
the Act ), the provisions of
testamentary succession are applicable
to the Will made by Hindu, subject to
restriction and the modifications
specified therein. The Will made by
Hindu are differently classified qua the
property situated within the
territories, which were subject to the
control of the Lieutenant- Governor of
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Bengal or within the local limits of the
ordinary civil jurisdiction of the High
Courts of Judicature at Madras and
Bombay. Whereas, qua all other Wills
made by Hindus, a separate clause is
provided under clause (c) of the Section
57 of the Indian Succession Act.
As per Section 213 of the Indian
Succession Act, the right as executor or
legatee pursuant to the Will can be
established in any Court of justice
unless a Court of competent jurisdiction
has granted probate of the said Will.
However, subsection 2 of Section
213 provides that this Section shall not
apply to the Will made by Hindu,
Buddhist or Sikh where such Wills are of
the clauses specified in clause (a) &
(b) of Section 57 of the Act. To say in
other words, if the Will is falling in
the category of the clauses other than
Clause (a) & (b) of Section 57 of the
Act, the restriction as provided in sub-
section 1 of Section 213 of the Act
shall not operate.
7. At this stage, it would be worthwhile to
extract certain observations of the Apex
Court in the case of Clarence Pais and Ors.
Vs. Union of India, reported at 2001 SC 1151
wherein while considering the constitutional
validity of the provisions of Section
213 vis-a-vis Section 57 of the Indian
Succession Act at para 6, it has been
observed by the Apex Court inter alia as
under:
A combined reading of Section
213 and 57 of the Act would show that
where the parties to the will are Hindus
or the properties in dispute are not in
territories falling under Section
57(a) and (b), sub-section(2) of Section
213 of the Act applies and subsection(1)
has no application. As a consequence, a
probate will not be required to be
obtained by a Hindu in respect of a will
made outside those territories or
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regarding the immovable properties
situate outside those territories.
(emphasis supplied.)
8. The aforesaid position of law is settled
by the highest Court of the country and
therefore, no further discussion may be
required .
6. Same situation would prevail in the present
matter inasmuch as the Will was pertaining to
the property not located in the presidential
town but located outside the area of
presidential town i.e. Junagadh. Probate was
not required to be obtained before the Will
is acted upon.
7. Under these circumstances, the order of the
Revenue Authority on the basis that probate
was required to be obtained before the entry
was recorded in the revenue record pertaining
to the Will cannot be sustained. On the
aspect that one of the property is located at
Mumbai or was pertaining to property of
Mubmai. The said ground is non existence and
the findings so recorded, could be said as
perverse to the record.”
11. Thus from the aforesaid decision rendered by this
Hon’ble Court, if the facts of the present case
are examined, in that event, it is evident that
here in the present case, admittedly the owner of
the land in question Rohit Dhanabhai Virabhai had
executed Will in favour of his nephew i.e. the
respondent no.5 herein, who on the basis of the
said Will, had entered into sale transactions and,
thereafter, several transactions had taken place
and lastly, the petitioner herein has purchased
the land in question after following due procedure
of law and on the basis of the registered sale
deed, entry came to be mutated, however when an
application for rectification of the name was
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moved, Entry No.1395 dated 19.02.2007 was taken
into suo motu on the ground that earlier when the
entry was mutated in the revenue record based on
Will, probate had not been obtained. However, the
said aspect has been cleared by the aforesaid
decision of this Hon’ble Court, wherein it has
been crystallized the position of fact referring
to the provision of the Indian Succession Act,
1925 that probate is not a must for succession of
the rights of the parties based on the Will and
declared the findings given in the said case as
perverse. Therefore in the present case on hand,
in my considered opinion, probate is not required
to be obtained, therefore, the ground on which the
entry was taken into suo motu cannot be sustained.
Therefore in view of the above decision, the
contention of learned advocate, Mr. Purohit that
the probate is not a must for the purpose of
getting the names mutated in the record of rights
on the strength of Will is fully fortified by the
decision of this Court in the case of Ramniklal
(supra). Therefore, the Collector could not have
raised the issue of probate in the show-cause
notice. This ground itself is not available. If
the ground itself is not available, the same goes
to the root of the jurisdiction of the Collector
in issuing such show cause notice.
12. Not only that, recent, the Hon’ble Supreme Court
in a decision in the case of Tarachandra Vs.
Bhawarlal, reported in 2025 LiveLaw (SC) 1246, has
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clarified that mutation of land records can
legally be carried out on the basis of a will and
such mutation cannot be denied merely because the
claim is founded on a testamentary document.
However, the Hon’ble Supreme Court reiterated that
mutation entries are purely fiscal in nature and
do not confer title or ownership rights. The
Hon’ble Supreme Court has emphasized that mutation
entries do not confer any right, title, or
interest in immovable property and they are meant
solely for fiscal and revenue purposes, such as
assessment and collection of land revenue. The
Hon’ble Supreme Court has observed that mutation
based on a will should not be denied if there is
no serious dispute raised by any natural legal
heir, and that mutation should proceed without the
need for probate. Thus in view of the above
decision, if the facts of the present case are
examined again, in that event, it is clear that at
the time of mutation of entry based on the Will,
no objection was raised by anyone and it is an
admitted position of fact that the original owner,
Rohit Dhanabhai Virabhai died intestate and during
his life time, he had executed the said Will in
favour of the respondent no.5, who in turned
entered into sale transactions with other and as
stated above, lastly the petitioner has entered
into sale transaction after verifying all revenue
record. Over and above that, it is settled in law
that the Civil Courts have the jurisdiction to
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decide the validity of will and Revenue Courts
have no jurisdiction to decide the validity of
will.
13. Now so far as one of the reasons for cancelling
the entry mutated in favour of the respondent no.5
based on Will is concerned, it is stated that the
respondent no.5 has not produced proof as to
whether the land in question belongs to private
ownership of the deceased or it was ancestral
property. It is, however, required to be noted
that the issue of title and/or ownership of the
land can be decided by the concerned civil court
and it is not within the purview of the concerned
revenue authority to decide in RTS proceedings. In
this regard, a useful reference can be made to the
decision of this Hon’ble Court in case of
Gandabhai Dalpatbhai Patel Vs. State of Gujarat,
reported in 2005 (2) GLR 1370), wherein this
Court has observed in Para Nos.9 and 10 as under,
“9. It is the consistent view taken by this
Court in catena of judgments that the
revenue authorities while dealing with RTS
proceedings had no jurisdiction and/or
authority to decide the question of title
and if there is any dispute with regard to
title the parties are to be relegated to the
Civil Court. As held by the Hon’ble Supreme
Court in the case of State of Gujarat VS.
Patel Raghav Natha – AIR 1969 SC Page 1297
and judgment of this Court in the case of
Ratilal Chunilal Solanki & Ors. Vs.
Shantilal Chunilal Solanki – 1996(2) GLR 525
and Siddharth B. Shah vs. State of Gujarat,
reported in 1999(3) GLR Page 2527, the
revenue authorities cannot decide the
disputed question of title to the property
and they have to merely go by the documents
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produced before them. Even this Court has
held in the case of Nathabhai Meraman Darji
(Supra) that when a document of registered
sale deed is produced before the authority,
the revenue authorities are bound to give
effect to the same and are not required to
decide the question of title.
10. Even this Court in a recent judgment in the
case of L.R.s of Popat Khima Ramani and Ors.
vs. Collector, Rajkot and Ors., reported in
2003(1) GLH 30, has considered the scope of
revenue authorities while deciding the
question with regard to mutation entry and
the powers under Section 135 and Rule 108,
has held that revenue authorities are not to
decide the question about title and the
revenue authorities are to make necessary
entries on the basis of decision of Civil
Court. It is further held in the said
judgment that the revenue authorities are
invested with limited powers under Section
135 and they cannot assume to themselves
certain powers conferred on them by law and
they cannot assume jurisdiction of Civil
Court. The revenue authorities cannot decide
validity of transaction on touchstone of
statutory provision occurring in some
enactment and that they cannot decide
disputed question of title. In fact, this
Court has gone to the extent that when a
dispute as to the title arises the parties
have to go to the competent Civil Court. In
the present case, in fact the Civil Suit is
pending between the parties and the Civil
Court is to decide all these questions which
are raised by the petitioner in the present
Special Civil Application with regard to
validity of the power of attorney, the
genuineness of sale deed, and the authority
of power of attorney holder on the basis of
the power of attorney. Considering the fact
that the suit is pending between the parties
and that the petitioner has challenged the
legality and validity of the sale deed
before the Civil Court and that there is an
injunction in the said Suit, in fact the
Secretary (Appeals) has tried to strike the
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balance and has tried to protect the
interests of all the parties by directing
that the factum of injunction granted by the
Civil Court should also be noted in the
entry and that the entry in favour of
respondent No.5 would be subject to the
ultimate outcome of the suit pending between
the parties in which the legality and
validity of the sale deed is challenged. It
cannot be said that there is any illegality
committed by the Secretary (Appeals). On the
contrary, the judgment and order passed by
the revisional authority, i.e. Secretary
(Appeals) is in consonance with the
provisions of Section 135 of the Bombay Land
Revenue Code and 108 of the Bombay Land
Revenue Rules and the view taken by the
Hon’ble Supreme Court as well as this Court
with regard to the powers of revenue
authorities while dealing with the question
of mutation entries. The revenue authorities
are not required to consider with regard to
the genuineness of the sale deed, the powers
and authority of the power of attorney
holder under the power of attorney and the
question with regard to the title. What is
required to be done by the Sub-Registrar at
the time when the sale deed was executed
cannot be permitted to be done by the
Mamlatdar and/or revenue authorities while
deciding the question with regard to
mutation entry, more particularly the entry
in the record of rights is only having a
presumptive value and only for a fiscal
purpose of recovering and payment of revenue
and it does not confer any right, title or
interest in favour of any party in the
property.”
14. Now, keeping in mind the aforesaid proposition of
law as well as the facts of the present case, in
my considered opinion, the revenue authorities
while exercising the powers under the revenue
jurisdiction appear to have exceeded its
jurisdiction by cancelling the entry mutated in
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favour of the petitioner on the basis of the Will
executed in favour of the respondent no.5, that
too, after much period.
15. At this stage, submission of learned advocate, Mr.
Purohit with regard to non-service of the notice
upon the petitioner while taking the impugned
entry into suo motu is also required to be
considered. It is found out from the documents
produced on record that while initiating suo motu
proceedings, the notice was issued upon the
respondent no.5, who remained present before the
authority and submitted his reply, however, the
said reply was not considered and impugned order
came to be passed cancelling the entry and when
the said fact came to the notice of the
petitioner, the petitioner immediately challenged
the said order before the respondent – Secretary
and pointed out all above facts but the respondent
– Secretary rejected the revision application
preferred by the petitioner. It is required to be
noted that the suo motu proceedings have been
initiated in the year 2013 and at that relevant
point of time, the name of the petitioner was
running in the revenue record, therefore, the
notice ought to have been served upon the
petitioner, which here in the present case
admittedly has not been served.
16. Further, it is also an admitted fact that, in the
present case, suo motu exercise of power by the
authority is after six years. Now, it is well
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settled by catena of decisions that suo motu
revision of power needs to be exercised in a
reasonable period of time. Even if no limitation
is prescribed for exercising such power, even in
such case power needs to be exercised in
reasonable period of time. At this stage, I would
like to rely upon the decision of the Hon’ble
Supreme Court in case of State of Gujarat Vs.
Patel Raghav Natha & Ors., reported in (1969) 2
SCC 187, wherein it was held that if the
revisional authority was inclined to exercise the
power under the Revenue Code, it ought to have
been satisfied that such power has been invoked
within reasonable time, otherwise the bar of delay
would operate. Relevant observation made by the
Hon’ble Supreme Court in the aforesaid decisions
read as under,
“12. It seems to us that sec. 65 itself indicates
the length of the reasonable time within
which the Commissioner must act u/s. 211.
u/s. 65 of the Code if the Collector does not
inform the applicant of his decision on the
application within a period of three months
the permission applied for shall be deemed to
have been granted. This section shows that a
period of three months is considered ample
for the Collector to make up his mind and
beyond that the legislature thinks that the
matter is so urgent that permission shall be
deemed to have been granted. Reading Ss. 211
and 65 together it seems to us that the
Commissioner must exercise his revisional
powers within a few months of the order of
the Collector. This is reasonable time
because after the grant of the permission for
building purposes the occupant is likely to
spend money on starting building operations
at least within a few months from the date of
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the permission. In this case the Commissioner
set aside the order of the Collector on
12.10.1961, i.e., more than a year after the
order, and it seems to us that this order was
passed too late.
17. Thus in view of aforesaid decision rendered by the
Hon’ble Supreme Court, it can be said that the suo
motu powers are required to be exercised within
reasonable time. In the present case, as observed
hereinabove, the suo motu proceedings were
initiated by authority concerned after a period of
approximately seven years and thus, admittedly
said suo motu proceedings were not initiated
within reasonable period. Therefore considering
the above facts of the case, the present petition
deserves to be allowed.
18. In the circumstances, the present petition stands
allowed. The impugned order dated 19.07.2017
passed by the respondent no.1 – Special Secretary
(Appeals), Revenue Department in Revision
Application No.MVV/HKP/NARMADA/30/2016 and the
order dated 09.05.2016 passed by the respondent
no.2 – Collector in Land/Entry/ Review/ Case
No.55/2013 are hereby quashed and set aside and as
a corollary effect, Entry No.1395 dated 19.02.2007
is restored in the revenue record.
19. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
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