Megha Goa Kiyada Since DECD. Through Legal Heir and Others vs State of Gujarat and 4

Honourable Mr. Justice Jayant Patel

The present petition is preferred by the petitioner for challenging the legality and validity of the order passed by the District Collector dated 13.05.1999/17.05.1999 whereby he has directed the Mamlatdar to prepare the record on the basis of the position as prevailing in the year 1955 and thereafter the further record be prepared in accordance with law. I have heard Mr. Gondaliya, learned counsel appearing for the petitioner and Mr. Dhawan Jayswal, learned AGP for the respondents no. 1 and 2 and Mr. Pahwa appearing for respondents no. 3 to 5.

Upon hearing the learned counsel appearing for both the sides, it appears that there is considerable force in the contention of the learned counsel appearing for the petitioner that the judgment and order of the Civil Court dated 27.04.1959 in Long Cause Suit No. 195/55, whereby the suit of partition in the ancestral property was dismissed, is not carried before the higher forum. But at the same time, it also appears that when the revenue authority in spite of the judgment of the Civil Court, directed for preparation of de novo record from 1955 vide order dated 18.07.1990 of the State Government (Annexure-D), the said order is also not challenged by the petitioner before the higher forum.

Thereafter, it appears that the District Collector, vide impugned order, has directed for preparation of the record from 1955 onward''s. The only aspect for which the petitioner is stated to have grievance is that in spite of the judgment of the Civil Court the direction of the State Government for preparation of the de novo record from 1955 onwards should not be maintained.

In view of the above, even if the partition is to be considered, the said partition is later to 1955 and in any case, during the life time of Gova Kurji. Therefore, if both the sides are permitted to lead the evidence before the Mamlatdar, the Mamlatdar may be in a position to examine the aspects of mutation in the revenue record after 1955. At that stage, the judgment of the Civil Court will also be taken into consideration and so will be the direction of the State Government. Only aspect which deserves to be recorded is that so far as inter se rights of the parties are concerned, the view taken by the Civil Court shall operate but as direction is for preparation of the record de novo from 1955, the revenue authority would be required to give the opportunity to the affected party also. In my view, if the direction for remand is maintained with the observation that the parties shall be at the liberty to produce necessary evidence in support of their rights if any and the Mamlatdar is left with the power to decide the same in accordance with law, no prejudice would be caused.

Hence, the impugned judgment and order of the District Collector is maintained so far as direction for preparation of the record from 1955 is concerned. However, if the revenue record is prepared from 1955, it would be open to both the sides to produce the necessary evidence and the Mamlatdar shall be at the liberty to decide for further preparation of the revenue record in accordance with law and at that stage, the judgment of the civil court as well as the order of the Revenue Secretary, both shall be considered by the Mamlatdar and the respective aspect shall be decided for preparation of the revenue record for subsequent period in accordance with law. The petition shall stand allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.