Jaychandbhai Patel & Ors Vs. Vithalbhai Jaychandbhai Patel & Ors 
INSC 1134 (13 September
O R D
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.
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.
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
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,
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 in or belonging to the State. Therefore, it has no relevance to the
inter se claims of the private parties.
High Court, therefore was not right in relying on Section 37.
11 of the Bombay Revenue Jurisdiction Act reads as under:
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.
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.
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.
these circumstances, we do not find any illegality in the order of the High
Court warranting interference.