Full Judgment Text
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PETITIONER:
SANKALCHAN JAYCHANDBHAI PATEL AND ORS.
Vs.
RESPONDENT:
VITHALBHAI JAYCHANDBHAI PATEL AND ORS.
DATE OF JUDGMENT: 13/09/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
These appeals by special leave arise
from the order of the learned single Judge of the High Court
of Gujarat, Originally, made on March 23, 1995 in Order
NO.40/95 and in MCA No.656/95 on June 30, 1995.
The facts are fairly not in dispute. The admitted
position is that the appellant and the respondent had
jointly purchased the suit scheduled property. It would
appear that there was a petition between them as co-owners
on March 20, 1982.
Subsequently, it would appear mutation was effected to
the revenue record on July 21.1982 to the extent of the
property that had fallen to the share of the appellant who
claims to have a further effected partition between the
appellant and his children on July 24, 1986. It is the case
of the appellant that the respondent filed an appeal under
Section 11 of the Bombay Revenue Jurisdiction Act which was
dismissed by the appellant Court on March 9 1994. Without
availing of the further right of revision as provided
thereunder, he filed the civil suit in the Court seeking
declaration of his title to the property and perpetual
injunction. Initially the trial Court refused to grant
injunction, but on appeal the District judge had granted
injunction pending the suit restraining the appellant from
alienating the property. The revision was dismissed by the
High Court. Review petition was also dismissed. Thus, these
appeals by special leave.
The primary question raised by Mr.Yashank Adharyu,
learned counsel for the appellant, is that Section 11 is a
bar on entertaining the suit. The High Court, therefore, was
not right in restraining the appellant form alienating the
property without deciding jurisdictional issue i.e. whether
the suit itself is maintainable. In support thereof, he
placed strong reliance on a judgment of a single judge of
the Gujarat High Court in Rukmanibai vs. The state of
Gujarat [(1960) 1 GLR 1791. The question, therefore is:
whether Sections 11 is a bar for maintainability of the
suit? It is sen that the bar of Section 37 of the Bombay
Land Revenue Code would be only as against the lands vesting
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in or belonging to the State. Therefore, it has no
relevance to the inter se claims of the private parties.
The High Court, therefore was not right in relying on
Section 37.
Section 11 of the Bombay Revenue Jurisdiction Act reads
as under:
"11. Suits not to be entertained
unless plaintiff has exhausted
right of appeal. - No Civil Court
shall entertain any suit (against
the Government) on account of nay
act or omission of any Revenue
Officer unless the plaintiff first
proves that previously to bring his
suits he has presented all such
appeals allowed by the law for the
time being in force, as within the
period of limitation allowed for
bringing such suits it was possible
to present."
A reading of the section would clearly indicate that
there is a prohibition on the Civil Court to entertain any
suit against the Government. on account of any act or
omission of any Revenue Officer, unless the plaintiff first
process that he previously brought it by way of an appeal
before the competent authority and within the time
prescribed. Without availing of that remedy, he cannot
present the suit against the State. The question is: whether
Section 11 applies to the inter se claim of the private
parties ? It would be seen that learned single judge has
construed Section 11 of the Bombay Revenue Jurisdiction Act,
and concluded that Section 11 prohibits entertainment of the
suit between private parties unless the plaintiff has
exhausted right of appeal or revision prescribed therein and
available to him before he resorts to the suit challenging
the order passed by the Revenue officer. A reading of
Section 11 does not indicate any prohibition on private
parties inter se to avail of the remedy of a suit provided
under the Code of Civil Procedure, 1908 [CPC]. Section 9 of
CPC. does not expressly or by necessary implication,
prohibits the jurisdiction of the civil Court to entertain
the based on title.
It is settled law that mutation entries are only to
enable the State to collect revenues from the persons in
possession and enjoyment of the property and that the right,
title and interest as to the property should be established
de hors the entries. Entries are only one of the modes of
proof of the enjoyment of the property. Mutation entries do
not create any title or interest therein. Therefore, the
view taken by the learned single Judge, with due respect, is
not correct in law. The civil suit is clearly maintainable.
The High Court rightly granted injunction restraining the
appellants from alienating the land. Even otherwise,
section 52 of the Transfer of property Act lis pendense
always stands in the way of purchaser of the land subject to
the result in revision.
Under these circumstances, we do not find any
illegality in the order of the High Court warranting
interference.
The appeals accordingly dismissed. No costs