Gujarat High Court
Manjitsingh Jagjatsingh Vasu & vs Collector & 3 on 20 August, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/143/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 143 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
5 Whether it is to be circulated to the civil judge? NO
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MANJITSINGH JAGJATSINGH VASU & 1....Petitioner(s)
Versus
COLLECTOR & 3....Respondent(s)
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Appearance:
MR SHITAL R PATEL, ADVOCATE for the Petitioner(s) No. 1 2
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
MR MANAN MAHETA, AGP for the Respondent(s) No. 1 , 3 4
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 20/08/2014
CAV JUDGMENT
1. The petitioners have sought following reliefs in the petition: Page 1 of 25 C/SCA/143/2014 CAV JUDGMENT
"26(a) To issue any appropriate writ/direction in the nature of certiorari or mandamus or any other appropriate writ or direction and thereby quash and set aside the order dated 12112013 of the learned Collector, Ahmedabad passed in RTS Appeal No. 137/2013 at AnnexureJ and also the order dated 26 42013 of the City Deputy Collector (West) passed in RTS Appeal No. 376 of 2012 (old case no. 214 of 2012) at AnnexureI and be pleased to issue effective direction to the revenue authority to clearly show the ownership of the petitioner qua land bearing survey no. 16/3 of Bodakdev by ignoring the observation of the civil court made in the judgment and decree dated 1422011 in regular civil suit no. 162 of 1989 as per in curiam and without jurisdiction in the facts of the present case;
(aa) Be pleased to quash and set aside the order dated 372014 passed in LB Revision Application No. 138/2013 as well as the order dated 2642013 passed by City Deputy Collector (West) in RTS Appeal No. 393 of 2012 and consequently be pleased to quash the order dated 2032012 passed by the Deputy Mamlatdar bearing Javak No. 69/Amendment order/2012 at AnnexureH and also set aside Entry No. 9924 dated 2032012 certified on 2642012, as wholly without jurisdiction in as much as in violation of principles of natural justice by way of appropriate Page 2 of 25 C/SCA/143/2014 CAV JUDGMENT writ/direction.
(bb) Pending the hearing and final disposal of this petition, be pleased to stay the execution, operation and implementation of the order dated 372014 of the learned Collector, Ahmedabad passed in LB Revision Application No. 138 of 2013 and also the order dated 2642013 passed by the City Deputy Collector (West) in RTS Appeal No. 393 of 2012 as well as stay the effect of entry no. 9924 dated 203 2012 certified on 2642012.
(b) Pending admission, hearing and final disposal of this petition, be pleased to stay the execution, operation and implementation of the order dated 12 112013 of the learned Collector, Ahmedabad passed in RTS Appeal No. 137/2013 at AnnexureJ and also the order dated 2642013 of the City Deputy Collector (West) passed in RTS Appeal No. 376 of 2012 (old case no. 214 of 2012) at AnnexureI and there by granting stay of impugned order issue notice for final disposal in the facts of the present case;
(c) To pass any other appropriate and just
order/s."
2. The facts in nutshell are that the respondent No. 2 herein -
original plaintiff filed a Regular Civil Suit No. 162 of 1989 in the Page 3 of 25 C/SCA/143/2014 CAV JUDGMENT Court of learned Civil Judge (S.D.), Ahmedabad (Rural) as the defendant No. 1 to 4 of the said suit sold the land bearing survey No. 16/3 of mouje Bodakdev (for convenience 'the land in question') to the defendant No. 5 by way of Registered Sale Deed dated 07/02/1985, challenging the said transaction, saying that the defendant Nos. 1 to 4 had no right or authority to sell the land in question. The respondent No. 2 - original plaintiff also challenged the revenue entries in respect of the land in question before RTS Authorities. The said entry and other entries were upheld by the SSRD, Ahmedabad by an order dated 11/05/1994 in Revision Application Nos. SRD/AMD/HKP/13/91, 14/91 and 15/91 subject to the final outcome of the aforesaid suit. In the said suit, the parties arrived at a settlement and accordingly, withdrawal pursis requesting permission to withdraw the said suit qua the land in question and also deleting the names of the defendant Nos. 1 to 5 was filed by the respondent No. 2 - original plaintiff, which was granted by the learned Civil Judge by order dated 23/02/2005. Thereafter, the petitioners herein purchased the land in question from defendant No. 5 and pursuant to Sale Deed dated 23/02/2005, the names of the petitioners were mutated in the revenue records. The petitioners being owners and occupiers of the land in question, applied for Page 4 of 25 C/SCA/143/2014 CAV JUDGMENT development permission under Section 29 of the Town Planning Act, which was granted on 26/08/2009 and accordingly, the petitioners put in construction on the said land, expending huge amount. It is the case of the petitioners that though the suit was compromised, the learned Civil Judge concerned, in the judgment and decree dated 14/02/2011 passed in the aforesaid Regular Civil Suit No. 162 of 1989 made certain observations as regards the land in question in gross violation of provisions of law, ignoring the implications of compromise and deletion of names of the parties. The respondent No. 2 - original plaintiff then filed Regular Civil Appeal No. 10 of 2011 before the District Court, Ahmedabad (Rural), impleading the defendant No. 5 of Regular Civil Suit No. 162 of 1989 as a party respondent, ignoring the order dated 23/02/2005 whereby, names of defendant Nos. 1 to 5 were ordered to be deleted in the said suit. The defendant No. 5 filed application in the said appeal for deletion of his name in view of aforesaid order dated 23/02/2005, which was opposed by respondent No. 2 herein - original plaintiff. The said application of defendant No. 5 came to be allowed by order dated 30/04/2012. Further, the application of the respondent No. 2 herein original plaintiff for appointing the Court Commissioner was also Page 5 of 25 C/SCA/143/2014 CAV JUDGMENT rejected. The respondent No. 2 herein - original plaintiff then approached the revenue authorities as well as the Ahmedabad Municipal Corporation with a view to get cancelled the development permission. The respondent No. 2 herein - original plaintiff also filed Special Civil Application No. 8337 of 2012. It is also the case of the petitioners that some alteration in the revenue record had been done at the instance of the respondent No. 2 herein - original plaintiff and pursuant to judgment and decree dated 14/02/2011, entry No. 9757 was entered on 15/09/2011, which was certified on 14/12/2011. The respondent No. 2 herein - original plaintiff gave an application dated 03/03/2012 to Mamlatdar, Daskroi, Ahmedabad for correction of order/entry on which, ex parte order dated 20/03/2012, was passed without hearing the petitioners. Since entry No. 9757 was a wrong reflection of status of the parties and its effect had been given by the revenue authority ignoring the compromise and unconditional withdrawal, an appeal being RTS Appeal being No. 376 of 2012 (old case No. 214 of 2012) challenging the said entry was preferred by the petitioners, however, the same was dismissed by the City Deputy Collector (West) mechanically by order dated 26/04/2013. The petitioners, being aggrieved by the said order, preferred RTS Page 6 of 25 C/SCA/143/2014 CAV JUDGMENT Appeal No. 137 of 2013 before the Collector, Ahmedabad along with application for interim stay, in which, though notice was served, the respondent No. 2 herein - original plaintiff did not remain present. The said appeal also came to be dismissed by impugned order dated 12/11/2013. In the meanwhile, the revenue authority passed an entry being No. 10418 on 18/09/2013 by which, the names of the family members of the respondent No. 2 herein - original plaintiff were entered, which was objected by the petitioners filing objections on 17/10/2013 to the Mamlatdar, Edhara, Taluka: Ahmedabad City (West) and also to the Talati, Bodakdev. It is further the case of the petitioners that another entry being No. 9924 also came to be passed on 20/03/2012 as rectification of entry, which was without jurisdiction, in respect of which, revision application is pending before the Collector, Ahmedabad, though entry No. 9757 was already made and certified. Against the said entry, the petitioners filed RTS Appeal No. 393 of 2012 before the City Deputy Collector (West), Ahmedabad, who rejected the same by an order dated 26/04/2013. Against the said order, the petitioners filed Revision Application No. 138 of 2013 before the Collector, Ahmedabad, which also came to be rejected by the Collector by order dated 03/07/2014 observing that the outcome Page 7 of 25 C/SCA/143/2014 CAV JUDGMENT of the present Special Civil Application No. 143 of 2014 would govern the subject. The respondent No. 2 also filed Special Civil Application No. 17502 of 2012 before this Court for quashing and setting aside the order dated 01/12/2012 related to development permission. Eventually, being aggrieved and dissatisfied with the order dated 12/11/2013 passed by the Collector, Ahmedabad in RTS Appeal No. 137/2013, order dated 26/04/2013 passed by the City Deputy Collector (West) in RTS Appeal No. 376 of 2012 (old case No. 214 of 2014), order dated 03/07/2014 passed in LB Revision Application No. 138 of 2013 as well as order dated 26/04/2013 passed by City Deputy Collector (West) in RTS Appeal No. 393 of 2012 and order dated 20/03/2012 passed by the Deputy Mamlatdar and for setting aside entry No. 9924 dated 20/03/2012, which was certified on 26/04/2012, present petition is filed by the petitioners.
3. Heard Mr. Shital R. Patel, learned advocate for the petitioners, Mr. Premal Joshi, learned advocate for the respondent No. 2 - original plaintiff and Mr. Manan Maheta, learned Assistant Government Pleader, for respondent Nos. 1, 3 and 4.
4. Rule. Learned advocates for the respective respondents waive Page 8 of 25 C/SCA/143/2014 CAV JUDGMENT service of process of Rule.
5. Mr. Shital R. Patel, learned advocate for the petitioners submitted that the revenue authority has made an entry based on the order of the Civil Court mechanically, without appreciating the facts that Fulaji Rumalji, respondent No. 2 herein - original plaintiff of Regular Civil Suit No. 162 of 1989 had withdrawn the said suit by filing the Compromise pursis, exh. 223 on 23/02/2005 and the learned Judge also passed order permitting withdrawal, in terms of the compromise, qua survey No. 16/3 of mouje Bodakdev i.e. land in question and in the circumstances, it was not open for the learned Civil Court to make any observations in respect of the survey No. 16/3, which was no more the subject matter of suit after 23/02/2005. Drawing attention of the Court towards Paras 9.1, 12, 13 and 15 to 18 of the order dated 25/03/2013 passed in Special Civil Application No. 17502 of 2012, the learned advocate for the petitioners submitted that after the said order dated 25/03/2013 also, the RTS authority has failed to appreciate that the respondent No. 2 herein had voluntarily entered into compromise with defendant No. 5 of Regular Civil Suit No. 162 of 1989 and had unconditionally withdrawn the suit by filing pursis, exh. 223, Page 9 of 25 C/SCA/143/2014 CAV JUDGMENT related to survey No. 16/3, but the RTS authority has not appreciated the observations made by this Court in the aforesaid order dated 25/03/2013 and as such, the authority has committed contempt of this Court. He then submitted that the observations of the learned Civil Court are without jurisdiction because on the one hand, it dismissed the suit of the plaintiff and on the other hand, made certain observations, which give handle to undeserving plaintiff to mislead the Court and the authority regarding interpretation of the said judgment and order. As per the law laid down by the Hon'ble Apex Court when the observations of the learned Civil Court are out and out nullity, they are not necessary to be challenged before the higher authority and they can be challenged in collateral proceedings as and when such null and void decree is sought to be enforced against the parties concerned and thus, the petitioners herein are seeking quick and inexpensive remedy by preferring this writ petition, which is the only remedy to resolve the grievance of the petitioners and to do complete and substantial justice to the petitioners.
5.1 In support of his submissions, the learned advocate for the petitioners has placed reliance on following decision: Page 10 of 25 C/SCA/143/2014 CAV JUDGMENT
(i) Sarwan Kumar and Another Vs. Madan Lal Aggarwal, reported in (2003) 4 SCC 147 - Head Note 'B'.
(ii) Sushil Kumar Mehta Vs. Gobind Ram Bohra (Dead) through his LRs., reported in (1990) 1 SCC 193 - Head Note and Para 26.
(iii) Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Another, reported in (2005) 7 SCC 791 - Head Note 'C'.
(iv) Sabitri Dei and Others Vs. Sarat Chandra Rout and Others, reported in (1996) 3 SCC 301 - Head Note 'B'.
(v) Marwadi Punamji Motiji Vs. Mohamad Siddique Musabhai Shaikh and Others, reported in AIR 1993 Gujarat 168 -
Head Note.
5.2 Drawing attention of the Court on the aforesaid citations, the learned advocate for the petitioners has mainly submitted that as per the ratio laid down in the same, it is clear that when there is a specific bar under the statute or when there is inherent lack of jurisdiction, the said decree cannot be enforced and one has not to file appeal before the Civil Court and the said decree cannot be binding to the parties. So far as the case on hand is concerned, the petitioners are the third party and they have no Page 11 of 25 C/SCA/143/2014 CAV JUDGMENT idea regarding the issue involved in the said decree and hence, the said decree cannot be said to be binding on the third party. Moreover, compelling the petitioners to adopt the regular mode is the premium to the defaulting party who has committed wrong and to make the genuine party i.e. the petitioners to suffer.
6. Mr. Premal Joshi, learned advocate for the respondent No. 2 invited attention of the Court to Section 211 of the Bombay Land Revenue Code, 1879 and submitted that the appeal against the impugned order lies before the SSRD and the petitioners herein have directly filed the petition, bypassing the appellate jurisdiction of SSRD and hence, the same is not maintainable and it should be dismissed on that count only.
6.1 Mr. Joshi further submitted that the judgment and decree dated 14/02/2011 passed in Regular Civil Suit No. 162 of 1989 has been challenged by the respondent No. 2 herein - original plaintiff by preferring Regular Civil Appeal No. 10 of 2011 and thus, the said judgment and decree has yet not attained finality and considering the averments of the petition as well as considering the submissions made by the learned advocate for the petitioners it is clear that if at all the petitioners have Page 12 of 25 C/SCA/143/2014 CAV JUDGMENT grievance against the observations made by the learned trial Judge in the judgment and decree dated 14/02/2011, they could have either resorted to filing of review application before the same learned Judge or would have availed of the remedy to challenge the same before the higher forum by way of filing appeal. However, when the defendant No. 5 was joined by the respondent No. 2 - original plaintiff - appellant of Regular Civil Appeal No. 10 of 2011, the said action of the appellant therein was objected by the present petitioners by filing application exh. 49 to delete him from the causetitle of the said appeal. Thereafter, on merits, the Court granted the prayer and ordered the appellant - original plaintiff to delete the name of defendant No. 5 from the said appeal by amending the causetitle by order dated 21/03/2012 passed below application exh. 49. He then submitted that now the petitioners have no option but to wait till the outcome of the said Regular Civil Appeal No. 10 of 2011, filed by the respondent No. 2. He then submitted that so far as revenue authority is concerned, the same is bound to make the entry on the basis of the judgment and decree passed by the Court concerned and it cannot go or carve out anything from the said judgment and decree by its own, as has been argued by the learned advocate for the petitioners and as such, the revenue Page 13 of 25 C/SCA/143/2014 CAV JUDGMENT authority has fully applied its mind and has passed the order so far as entry under challenge is concerned.
6.2 In support of his submissions, the learned advocate for the respondent No. 2 has placed reliance on following decisions:
(i) Union of India and Another Vs. Guwahati Carbon Ltd., reported in (2012) 11 SCC 651.
(ii) Commissioner of Income Tax and Others Vs. Chhabil Dass Agrwal, reported in (2014) 1 SCC 603.
(iii) Chhimiben Wd/o. Hirabhai Gopalbhai and Others Vs. State of Gujarat and Others, reported in 2006 (3) GLR 2455 -
Head Note 'A'.
(iv) Gandabhai Dalpatbhai Patel Vs. State of Gujarat and Others, reported in 2005 (2) GLR 1370 - Head Note 'A'.
(v) LRs. Of Popat Khima Ramani and Others Vs. Collector, Rajkot and Others, reported in 2003 (1) GLR 30 - Head Note 'B'.
7. I have carefully gone through the documents forthcoming on record and the pleadings of the case on hand in light of the Page 14 of 25 C/SCA/143/2014 CAV JUDGMENT submissions made by the learned advocates for the parties. During the course of submissions, Mr. Shital R. Patel, learned advocate for the petitioners, repeatedly referred to Paras 17 and 18 of the order dated 25/03/2013 passed by this Court in Special Civil Application No. 17502 of 2012 and submitted that, as such, the said petition was filed by the present respondent No. 2 - original plaintiff against the present petitioners, Ahmedabad Municipal Corporation, AUDA and Asimanand Cooperative Housing Society. Paras 17 and 18 are extracted herein below:
"17. Thus, though the operative part of the judgment and decree is slightly ambiguous, the above findings are clear as also the fact that the suit has been dismissed. Placing reliance upon the operative part of the judgment and decree and more particularly the observations that the sale deeds including sale deed Exh.31 (which relates to Survey No.16/3) have not been considered to be legal, the petitioner seeks to contend that the sale deed not being legal, the development plan which has been sanctioned on the basis of such sale deed is required to be cancelled. It may be pertinent to note that though the observation made in the judgment is that the above referred sale deeds have not been considered legal, the petitioner has in paragraph 2(H) of the petition, categorically Page 15 of 25 C/SCA/143/2014 CAV JUDGMENT averred that the civil court was pleased to dismiss the suit of the petitioner and simultaneously set aside the documents executed qua the sale deeds in question vide its judgment and decree dated 14th February, 2011. Such averment made on oath, is clearly incorrect and highly misleading inasmuch as the civil court has dismissed the suit and has nowhere set aside the documents executed qua the suit lands.
18. It may also be noted that the relief claimed in the civil suit was to declare the plaintiff to be the exclusive owner of Survey No.300/5, 301/3 and 16/3 of village Bodakdev and to declare Entries No.2258, 2994, 3001, 3592, 3646 as wrong, illegal, nonest, void and that the same do not create any rights in the defendants. A further declaration has been sought to the effect that the sale deeds executed between the defendants No.1 to 4 and defendants No.5 and 6 are illegal, nonest and do not create any right, title or interest in any of the defendants. As noted hereinabove, the said suit has been dismissed by holding that the plaintiff has no right, title or interest in the suit lands. The court has not set aside the sale deeds executed in favour of the defendants No.5 and 6 therein. Under the circumstances, as on date, there is a judgment and decree of the civil court in favour of the defendants. Of course, the judgment and decree is subject matter of challenge in appeal, however, insofar Page 16 of 25 C/SCA/143/2014 CAV JUDGMENT as the Survey No.16/3 of Mauje Bodakdev is concerned, as noted hereinabove, the plaintiff had withdrawn the suit to the extent of the said land and as such, the judgment and decree passed by the civil court is limited to the other lands and does not relate to Survey No.16/3 of Mouje Bodakdev. As noticed earlier, insofar as the Survey No.16/3 is concerned, the defendants No.1 to 5 had been deleted and hence, the judgment and decree passed by the trial court does not bind the said defendants qua survey No.16/3. The contention that the respondents No.5 and 6 not having challenged the operative part of the decree, the same is binding upon them, deserves to be stated only to be rejected inasmuch as it is a well settled legal principle that a decree is binding only to the parties to the suit and neither the respondents No.5 and 6 nor their predecessor in title was a party to the suit insofar as survey No.16/3 of Mouje Bodakdev is concerned."
7.1 Referring to the above observations made by this Court, prima facie it appears that this Court has observed that the trial Court concerned has not set aside the Sale Deed executed in favour of the respondent Nos. 5 and 6 therein and further observed that, the judgment and decree is subject matter of challenge in the appeal, so far as survey No. 16/3 of mouje Bodakdev is concerned. As noted herein above, the plaintiff had withdrawn Page 17 of 25 C/SCA/143/2014 CAV JUDGMENT the suit to the extent of the said land and as such, the judgment and decree passed by the learned Civil Court is limited to the other lands and does not relate to survey No. 16/3 of mouje Bodakdev. The Court has further noticed and observed that, "insofar as the survey No. 16/3 is concerned, the defendant Nos. 1 to 5 had been deleted and hence, the judgment and decree passed by the trial Court does not bind the said defendants qua survey No. 16/3". The Court has also observed that, "it is a well settled legal principle that a decree is binding only to the parties to the suit and neither the respondent Nos. 5 and 6 nor their predecessor in title was a party to the suit insofar as survey No. 16/3 of mouje Bodakdev is concerned". In light of the above observations, I have carefully gone through the entire judgment and order dated 25/03/2013 passed in Special Civil Application No. 17502 of 2012. Prior to Paras 17 and 18 of the said order, in Para 11 of the same, this Court has also observed that, "Having regard to the controversy involved in the present case is limited to the validity of the development permission granted by the respondent No. 3 - Corporation in favour of the respondent Nos. 5 and 6, it is not necessary for this Court to deal with the issues relating to the title of the subject land". Thus, it is clear Page 18 of 25 C/SCA/143/2014 CAV JUDGMENT that while making any observation, this Court was aware of the fact that the same was limited to the validity of the development permission granted by the respondent No. 3 - Corporation, which was the main issue before the Court because, as observed in Para 18, this Court was aware of the fact that the said judgment and decree is under challenge before the appellate forum and the Court has referred the said aspect in said Para 18. Thus, I do not find any substance and merit in the submission made by the learned advocate for the petitioners that in spite of order dated 25/03/2013 passed in Special Civil Application No. 17502 of 2012, RTS authority has failed to appreciate the observations made by this Court more particularly, when this Court has clearly negatived the contentions raised by the respondent No. 2 herein - original plaintiff regarding the observations of the Civil Court and claim qua survey No. 16/3 on his part and under the circumstances, the question of contempt does not arise at all because this Court has cleared the mind in Para 11 of the order dated 25/03/2013 referred and discussed herein above.
7.2 Referring to the judgment and decree dated 14/02/2011 passed in Regular Civil Suit No. 162 of 1989, it appears that the Court Page 19 of 25 C/SCA/143/2014 CAV JUDGMENT concerned has the jurisdiction and accordingly, it is the case of the petitioners herein that the respondent No. 2 herein - original plaintiff has filed the withdrawal pursis at exh. 223 dated 23/02/2005 so far as survey No. 16/3 of mouje Bodakdev is concerned to withdraw the suit qua defendant Nos. 1 to 5 therein and thereafter, the petitioners purchased the land in question from the defendant No. 5 therein by Registered Sale Deed on the same day i.e. dated 23/02/2005. Now, at the time of passing the judgment and decree, if the Court concerned has made certain observations related to the said transaction qua survey No. 16/3 of mouje Bodakdev to the effect that the said transaction is in express bar under Sections 85, 85A of the Tenancy Act and Sections 36A and 36B of the Fragmentation Act, for which the Civil Court has no right then also, it cannot be said that the jurisdiction of the Civil Court is ousted by the said express bar referred above. In short, if any error or mistake is alleged to have been committed by the concerned Court in the judgment and decree passed in Regular Civil Suit No. 162 of 1989 or if the concerned Court made certain observations as regards the land in question in gross violation of the provisions of law, ignoring the implications of compromise and deletion of names of parties, then also, in my view, the remedy would be either to file the Page 20 of 25 C/SCA/143/2014 CAV JUDGMENT review application or to challenge the same before the higher forum. However, challenging the same by preferring writ petition in order to redress the grievance of the petitioners expecting that any further delay would cause serious prejudice to the petitioners especially when construction has come to standstill to get quick and inexpensive relief and to get complete and substantial justice is against the well settled principle of law. In my view, the petitioners herein want to bypass either the jurisdiction of the appellate Court or the jurisdiction of review by the concerned Court, which has passed the said judgment and decree. It is not under dispute that the respondent No. 2 - original plaintiff has challenged the judgment and order dated 14/02/2011 passed in Regular Civil Suit No. 162 of 1989 before the appellate Court, which has been registered as Regular Civil Appeal No. 10 of 2011. It is also not under dispute that the process was issued against the original defendant Nos. 5 - Sureshkumar Manilal and the petitioners herein have appeared in the said appeal through Power of Attorney of said Sureshkumar Manilal and application submitted to the effect that the original defendant No. 5 i.e. Sureshkumar Manilal is not the necessary party, more particularly, because the suit against the said defendant No. 5 was withdrawn so far as survey No. 16/3 of Page 21 of 25 C/SCA/143/2014 CAV JUDGMENT mouje Bodakdev is concerned was granted by the Court concerned and accordingly, the original defendant No. 5 has been deleted from the causetitle of the said appeal. In my view, the proper remedy to challenge the judgment and decree, which is alleged to have been passed in breach of the provisions of Sections 85 and 85A of the Tenancy Act and Sections 36A and 36B of the Fragmentation Act, was by way of preferring the review application or approaching the appellate Court and said Court, after giving proper opportunity to the concerned parties, would have passed order either to remand the said case for rectifying the error alleged to have been committed by the concerned Court or would have given proper direction or would have passed necessary orders in accordance with law. In the considered opinion of this Court, the petitioners have rushed to this Court without exhausting equally efficacious alternative statutory remedy and accordingly, I do not find any force and substance in the submission made by the learned advocate for the petitioners that in the abovereferred facts and circumstances also, in the collateral proceedings it can challenge the null and void decree, which is sought to be enforced against the parties concerned. It is also pertinent to note that the question of challenging the said decree is not a reason at all because it is not Page 22 of 25 C/SCA/143/2014 CAV JUDGMENT the case of the petitioners that any one has filed the execution petition related to the decree passed in the suit. 7.3 Under the aforesaid circumstances, after the judgment and decree passed in Regular Civil Suit No. 162 of 1989, revenue authority has made the entry No. 9757 on 15/09/2011 and narrated the outcome of the decree, which has been later on certified on 14/12/2011. As discussed herein above, the impugned judgment and decree passed on 14/02/2011 in Regular Civil Suit No. 162 of 1989 has not attained the finality because it is yet to be tested by the appellate Court and till the said decree attains the finality, in my view, the final outcome of the same would govern the revenue records related to survey No. 16/3 i.e. the land in question. It is, therefore, not correct to say that entry No. 9757 at page No. 93 is a wrong reflection of status of the parties and revenue authority had ignored the compromise and unconditional withdrawal. In my view, the revenue authority is bound to make entry based on the decision taken by the Civil Court and in the case on hand, the revenue authority has done vide entry No. 9757 as discussed above. It is to be noted that as per the petitioners, when this Court has clearly negatived the contentions raised by the respondent No. 2 - Fulaji Page 23 of 25 C/SCA/143/2014 CAV JUDGMENT Rumalji regarding observations of the Civil Court and claim qua survey No. 16/3 on his part, vide order dated 25/03/2013 passed in Special Civil Application No. 17502 of 2012, the petitioners were in belief that revenue authority would consider the same and as the revenue authority has ignored the same, the petitioners thought it fit to challenge the impugned order by preferring the present petition instead of challenging the same before the SSRD as argued by the learned advocate for the respondent No. 2. There appears some substance and under the circumstances, I do not think it fit to dismiss this petition on the ground of maintainability of the same as the petitioners have by passed the appellate jurisdiction of SSRD.
8. I have considered the case law on which, the learned advocate for the petitioners has placed reliance as referred in para 5.1 above. As discussed above, the Court, which has passed the order, is the competent Court having jurisdiction to decide the Regular Civil Suit No. 162 of 1989. The defaulting party i.e. respondent No. 2 - original plaintiff has not committed any wrong but the Court concerned has passed the judgment and decree dated 14/02/2011 in Regular Civil Suit No. 162 of 1989. If any observations have been made by the concerned learned Page 24 of 25 C/SCA/143/2014 CAV JUDGMENT Judge while passing the said judgment against the well settled principle, then, the learned Judge is the right person to review the same. Considering the above facts of the present case, the abovereferred ratio laid down by the Hon'ble Apex Court in those decisions, in my view, are not applicable to the case on hand.
9. In the above backdrop, present petition is disposed of with the observation that all the revenue proceedings, referred in the present petition, shall be governed in accordance with law, by the final outcome of the Regular Civil Appeal No. 10 of 2011, which is pending before the Court concerned. In the interest of justice, liberty is reserved in favour of the petitioners to be joined themselves as party respondents in the Regular Civil Appeal No. 10 of 2011, if at all they desire so. Rule accordingly.
[ G. B. Shah, J. ] hiren Page 25 of 25