ORAL ORDER
1. Heard learned advocate Mr.M.B.Rana with learned advocate Mr.Dashrath Patel on behalf of the petitioners and learned Assistant Government Pleader Mr.Jayneel Parikh on behalf of respondent - State.
2. By way of this petition, the petitioners inter alia challenge order dated 26.04.2024 passed by the learned SSRD confirming order passed by the Collector dated 21.06.2023 further confirming the order of the Deputy Collector dated 19.07.2022.
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3. Considering the submissions made by learned advocate Mr.Rana and learned AGP Mr.Parikh and having perused the record, it would appear that the issue in question is with regard to the Entries No.5210 and 5211 in the revenue records with regard to land bearing survey nos.733 Paiki and
737.
3.1. It would be required to be mentioned at this stage that the petitioner no.1 is the wife of the petitioner no.2 and whereas the respondent no.5 is the daughter of the petitioners and respondent no.4 is the mother of the petitioner no.2 herein. It appears that the petitioners as well as the respondents no.4 and 5 had jointly purchased two plots referred to hereinabove at Village: Hariyala, Takula District:
Kheda and whereas the said transaction had been entered into the revenue record vide Entry No.4777.
3.2. It would appear that later on, the respondent no.4 due to her advanced age had gifted her share in property to petitioner no.2, petitioner no.1 and respondent no.5 herein. It would appear that the said gift deed had been submitted through power of attorney holder i.e. petitioner no.2 herein. It appears that upon the petitioners making application for
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entering the said gift deed in record of rights, originally while Entries No.5210 and 5211 had been mutated in the revenue record on 02.11.2020, the same had been cancelled by the Deputy Mamlatdar vide order dated 06.01.2021.
3.3. The order of the Deputy Mamlatdar had been challenged by the petitioner before the Deputy Collector who vide order dated 19.07.2022 in RTS Appeal No.573/2021 had rejected the challenge of the present petitioners. It appears that the said order had been carried further in appeal vide Revision Application No.56/2023 and whereas, the Collector, Kheda vide order dated 21.06.2023 had confirmed the order passed by the Deputy Collector. It further appears that the petitioners had challenged the order of the Collector by preferring a Revision Application before the learned SSRD who vide its order dated 26.04.2024 had confirmed the order passed by Collector. Thus being aggrieved, the petitioners have approached this Court.
4. Having heard learned advocates for the parties, it would appear to this Court that the primary issue which had been lost site of by the Revenue Authorities was that the respondent no.4 was the mother of the petitioner no.2,
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mother-in-law of the petitioner no.1 and grand-mother of the respondent no.5. That the transaction was between the family members inter-se.
4.1. It would also appear that the cancellation of the entry was on certain grounds namely:-
(i) That notice under Section 135(D) of the Land Revenue Code though sent for service through RPAD, the acknowledgment of the notice had not been received back. To this, the contention of the learned advocate being that Section 135(D) notice had been issued to the petitioners themselves, so irrespective of whether notice had been returned back, the same would not have made any difference.
(ii) That a gift has been effected through a power of attorney and therefore, affidavit was not submitted. To this, it is the submission of learned advocate that if they were given an appropriate notice, appropriate affidavit would have been submitted by them, though, according to learned advocate later on they did submit the affidavit which was not taken into consideration.
(iii) That the entry itself at one stage mentioning the term
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'sale' and at another place mentioning the term 'gift'. It appears that that would be a mistake by the Revenue Authorities since the petitioners never claim the transaction to be a sale, rather as was evident from the transaction itself, it was a gift by respondent no.4 to the petitioners as well as respondent no.5.
(iv) That the gift is of an undivided share in the immovable property. To this, it would appear that since the Transfer of Property Act does not contemplate that such a transaction is illegal, the Revenue Authorities would not be entitled to take such an objection.
4.2. Thus, prima facie to this Court, it would appear that there is no merit in the objections for refusing to verify the entry.
5. Be that as it may, to this Court, having considered the above, it would appear that the petitioners are required to be afforded one more opportunity to clarify the aspects as noted hereinabove and whereas, the authorities after taking appropriate note of the clarification can take a decision as to whether the gift deed is to be mutated in the revenue record
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or not. The reason for the same as noted hereinabove is that the transaction is an inter-se transaction between the parties and whereas, the objections as noted hereinabove are all technical objections which would not have any bearing whatsoever on the substantive issue.
6. Under such circumstances, in the considered opinion of this Court, the following directions would meet with the ends of justice:-
(i) The impugned order dated 26.04.2024 passed by the learned SSRD, order dated 21.06.2023 passed by the District Collector, Kheda and order dated 19.07.2022 passed by the Deputy Collector, Kheda are hereby quashed and set aside. The order passed by the Deputy Mamlatdar dated 06.01.2021 refusing to certify the entry is also quashed and set aside.
(ii) The petitioners are permitted to move the Circle Officer / Deputy Mamlatdar for entering the aspect with regard to gift deed in the revenue record and whereas, the objections as found in Entries No.5210 and 5211 shall be clarified by the petitioners.
(iii) In case the Circle Officer finds any legal objection
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against mutating of the entry in question, then the Deputy Mamlatdar after affording appropriate opportunity shall take appropriate decision in accordance with law.
(iv) The above exercise shall be completed within a period of sixty days i.e. after the application is received by the petitioners for reflecting the gift deed in the revenue record, the Deputy Mamlatdar, Kheda shall take appropriate decision as above, which application shall not be later than fifteen days from the date of receipt of the copy of this order.
7. With these observations and directions, the present petition stands disposed of as allowed.
(NIKHIL S. KARIEL,J)
Bhoomi
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