Vimalchand Udaychand and Others vs State of Gujarat and Others

K.S. Jhaveri, J.—By way of this petition, the petitioners have prayed for the following reliefs:

[A] This Hon''ble Court may be pleased to issue a writ of mandamus, certiorari, prohibition and/or direction, order, writ, to the respondents to approve/certified the entry No. 893 in the records of right of survey No. 58/2, and Block No. 50 admeasuring Acre 1.2 Gunthas of village Chharodi, Tal. Dascroi, Dist. Ahmedabad in favour of the petitioners by virtue of will and probate of deceased Bhikhaji Lalji Thakore, and to quash and set aside the impugned orders passed by the Revenue Authorities.

[B] During the pendency and final disposal of this petition, be pleased to stay the orders of the Revenue Authority for disapproving the Revenue entry No. 893;

[C] & [D]....

The short facts of the case are that the land bearing Survey No. 58, admeasuring 1 Acre 2 gunthas of Village Chharodi, Taluka Dascroi, District Ahmedabad was owned and possessed by one Bhikaji Lalji Thakore. As the petitioners were closely associated with the said Bhikaji Lalji Thakore, he bequeathed the aforesaid land to the petitioners by a Will, executed on 09.04.1964. After the execution of the will, Bhikaji Lalji Thakore expired on 30.11.1964. The petitioners, on the basis of the Will executed by Bhikaji Lalji Thakore, preferred an application before the Revenue Authority for entering the revenue entry in the record of rights of the said bequeathed property in village form No. 6, 7/12, 8 etc. As the entry in the record of rights was not mutated, the petitioners preferred Misc. Civil Application No. 105/89 before the District Court, Ahmedabad for obtaining a probate of the said Will, which was dismissed by the District Court, Ahmedabad. Against the said order, the petitioners preferred Appeal from Order No. 489/1990 before this Court. This Court vide order dated 10.12.1990 allowed the said appeal and granted probate in favour of the petitioners. Pursuant to the order passed by this Court, the District Court, Ahmedabad vide order dated 16.03.1992 granted probate in respect of the Will executed in favour of the petitioners.

2.1. After grant of probate in respect of the Will executed in favour of the petitioners, the petitioners preferred an application before the revenue authority for entering the revenue entry in the record of rights of the said bequeathed property in village form No. 6, 7/12, 8 etc. and accordingly entry No. 893 was made in the village form No. 6. However, the said entry was not certified by the Dy. Mamlatdar on the ground of breach of the provisions of Fragmentation and Tenancy Act, as the land in question was a new tenure land. Being aggrieved by the said order, the petitioners preferred Revenue Appeal being RTS Appeal No. 52/94-95 before the Dy. Collector-respondent No. 3 herein. The respondent No. 3 vide order dated 29.06.1995 rejected the said appeal on the ground of breach of provisions of Section 63 of the Tenancy Act. Being aggrieved and dissatisfied by the said order, the petitioners preferred Revision Application No. 49/1995 before respondent No. 2, which came to be rejected vide order dated 21.10.1995. Against the said order, the petitioners preferred Revision Application No. 72/1997 before respondent No. 1. Respondent No. 1 vide order dated 20.09.2003 rejected the said application. Hence, this petition.

Heard learned Counsel for the respective parties and perused the documents on record. From the record it transpires that the land in question was a new tenure land and as the petitioners being non agriculturist, they were not entitled to hold the land in dispute, bequeathed to them by a Will. Looking to the facts of the case and in view of the fact that there is breach of the provisions of Section 63 of the Tenancy Act, the authorities below were completely justified in passing the impugned orders. Considering the facts of the case, in my opinion, the respondent authorities were completely justified in passing the impugned orders. I am in complete agreement with the concurrent findings recorded by respondent authorities and hence, find no reason to interfere with the same.

In the result, the petition is dismissed. Rule is discharged. Interim relief if, any, stands vacated.