Gujarat High Court
Shankarbhai Keshavlal Patel vs Prerak Rakeshbhai Desai on 9 December, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 1826 of 2021
In F/FIRST APPEAL NO. 7674 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SHANKARBHAI KESHAVLAL PATEL
Versus
PRERAK RAKESHBHAI DESAI
==========================================================
Appearance:
MR PH GOHIL(1878) for the Applicant(s) No. 1
MR VAIBHAV A VYAS(2896) for the Applicant(s) No. 1
for the Respondent(s) No. 10
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 5
NOTICE UNSERVED for the Respondent(s) No. 10.2,13,18,19
SAMARTH S AMIN(8897) for the Respondent(s) No. 26
SERVED BY RPAD (N) for the Respondent(s) No. 12,14,15,16,17
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 3
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 25
MR TARAK DAMANI(6089) for the Respondent(s) No. 26
MR UDAYAN P VYAS(1302) for the Respondent(s) No. 8
Page 1 of 73
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C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
MR.MANAN BHATT(6535) for the Respondent(s) No. 1
NANAVATI ASSOCIATES(1375) for the Respondent(s) No. 11
NOTICE SERVED for the Respondent(s) No. 10.1,2,20,21,22,23,24,4,6,7,9
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/12/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. By way of the present application the applicant seeks to challenge the consent order and decree passed in Special Civil Suit No.516 of 2008 by the learned 21st Additional Senior Civil Judge, Vadodara on 28.01.2021.
2. The applicant was not a party to the Special Civil Suit No.516 of 2008 and therefore, the present application is preferred seeking leave of this Court to permit the applicant to file substantive Page 2 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 appeal challenging the judgment and order dated 21.01.2021 and decree dated 28.01.2021.
3. Brief facts devoid of the details leading to the present application are as follow:
3.1 Opponent Nos.1 and 2 are the original plaintiffs, who preferred the Special Civil Suit No.516 of 2008 against the opponent Nos.3 to 25, who are the original defendants. The minor plaintiffs Nos.1 and 2 had claimed their shares to the tune of 18.51% in land bearing City Survey No.1-A2, Tikka No.27/15, 16 and 17 in Ward No.B at Moje Vadodara City admeasuring 1,22,718 square meters. The plaintiffs sought their right in the amount of compensation of the Page 3 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 said land which was acquired by the State Government in connection with the Land Reference No.18 of 2006, which was pending.
Seeking the declaration to the effect that the grandfather of the plaintiffs, late Shri Mahendrakumar Purshottambhai Desai did not have any legal right to execute a will as the suit land was a coparcener property. It was urged that only the plaintiffs and the original defendant Nos.5 to 12 and their heirs defendant Nos.18 to 23 were entitled to 100% share in the amount of compensation. Therefore, it was prayed to declare and hold that the orders/decree passed by the Civil Judge (Senior Division) Vadodara in Special Civil Suit No.116 of 2007 and Review Application No.169 of 2006 as well as the order passed Page 4 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 in Review Application No.89 of 2007 be declared void.
3.2 They further sought the declaration that the defendant No.1 namely
Mr.Jayantibhai Ramdas Patel did not have any right to the amount of compensation on the strength of the settlement arrived at by and between the parties in the proceedings of Special Civil Suit No.116 of 2007 and thereafter in both the Review Applications filed by both the defendants where they further sought the direction from the defendant No.1 namely Mr.Jayantibhai Ramdas Patel to re-deposit the amount of Rs.19,23,68,564/- to the Treasury of Government, which the defendant No.1 received in Reference Case No.18 of Page 5 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 2006 on the basis of a Will dated 22.08.1995. This defendant had obtained probate in Probate Application No.224 of 2001, which was revoked in Probate Application No.23 of 2003 or in the alternative, a decree for recovery of the said amount with 12% interest to be paid to the share of the coparceners had been requested. It was further prayed to pass a permanent injunction against the defendant No.1 from withdrawing the amount of compensation from defendant Nos.2 to 4 in Land Reference Case No.18 of 2006 with a further prayer that the defendant Nos.2 to 4 may be restrained from making payment of the said amount of compensation to the defendant No.1.
Page 6 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 3.3 The plaintiffs as emerged from the record are the legal heirs of late Shri Mahendrakumar Purshottamrai Desai, who was the grandfather of the plaintiff and passed away on 31.10.1995. He was the original resident of Vadodara City and had his land at Vadodara. The land admeasuring 1,22,718 square meters came to the share of grandfather of the plaintiffs, which was acquired by the Government for public purpose.
3.4 Late Shri Mahendrakumar Purshottambhai Desai initiated the revenue proceedings against the authorities of the State Government. The same culminated into the order dated 29.11.1991 passed by the Gujarat Revenue Tribunal, whereby it was Page 7 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 held that 53 Vighas and 18 Vasa land belong to the ownership of late Shri Mahendrakumar Desai.
3.5 The opponent No.3-State Government preferred Special Civil Suit No.776 of 1996 in the Court of Senior Civil Judge, Vadodara, whereby the order dated 29.11.1991 passed by the Gujarat Revenue Tribunal was challenged and a declaration was sought to the effect that the land belonged to the State Government. The said Civil Suit was dismissed by judgment and order dated 21.03.1994.
3.6 The State Government preferred First Appeal No.969 of 1994 before this Court. In the First Appeal, Civil Application NO.4849 of 2000 was preferred for bringing Page 8 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 additional evidence on record. The said Civil Application was dismissed on 22.06.2000. The State Government preferred two Civil Applications Numbering 964 of 2002 and 1150 of 2002. The Court dismissed the First Appeal as well as both the Civil Applications on 07.05.2002.
3.7 The State Government preferred Civil Appeal Nos.87898 to 87900 of 2002 against the said dismissal before the Apex Court. They also met the very fate of dismissal on 01.04.2006. However, the Civil Appeal arising from the First Appeal, the Apex Court partly allowed the same and held that out of 53 Vighas and 18 Vasas of land, 2 Vighas and 5 Vasas of land was acquired by the State Government. Thus, out of the Page 9 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 total land admeasuring 1,28,073 square meters (53 Vighas and 18 Vasas), excluding 5355 square meters (2 Vighas and 5 Vasa) the remaining land 1,22,718 square meters came to the share of the grandfather of the plaintiffs. The said land came to be acquired by the State Government for public purpose by Notification dated 25.01.2007. The Preliminary Award of Rs.23 Crore came to be passed by the land acquisition officer, out of which 81.90% share i.e. the amount of Rs.19,23,68,564/- was received by the original defendant No.1-Jayantibhai Ramdas Patel. The Land Reference Case No.18 of 2006 is pending adjudication. 3.8 The reason why the defendant No.1- Jayantibhai Ramdas Patel was granted the Page 10 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 share was because of his having been bequeathed the land by way of a Will executed by late Shri Mahendrabhai Desai on 22.08.1995 in favour of the defendant No.1- Jayantibhai Ramdas Patel. Jayantibhai Ramdas Patel also filed Probate Application No.224 of 2001, which was allowed by the Civil Court, Vadodara by issuance of Probate Certificate in his favour. 3.9 In the year 2003, original defendant Nos.5 to 7 preferred Probate Revocation Application No.23 of 2003, which was partly allowed and Probate Certificate came to be revoked on 02.09.2004.
3.10 A Review Application No.169 of 2006 was preferred by the defendant No.1- Jayantibhai Ramdas Patel against the Page 11 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 original defendant Nos.5 to 7 where the parties entered into amicable settlement and has agreed by and between the parties that 81.90% share of the amount of compensation went to Jayantibhai Ramdas Patel and 18.10% would go to defendant Nos.5 to 7. Thus, the consent decree was arrived at on 07.05.2007 and as there was an error in the decree, Review Application No.89 of 2007 was filed and the consent order was passed on 28.05.2007. Hence, 81.90% share in the amount of compensation came in favour of the defendant No.1. 3.11 The defendant No.1-Jayantibhai Ramdas Patel preferred Special Civil Suit No.116 of 2007 against all the heirs of late Shri Mahendrakumar Desai, the parties Page 12 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 entered into a compromise and the consent decree came to be passed on 09.04.2007. 3.12 It is the grievance on the part of the applicant that he was having the direct interest in the amount of compensation inasmuch as he entered into the compromise with Mr,Jayantibhai Ramdas Patel and because of the consent terms entered into between the parties i.e. Mr.Jayantibhai Ramdas Patel and heirs of late Shri Mahendrakumar Desai in Special Civil Suit No.516 of 2008 based on which the impugned order and decree has been passed which is challenged, his interest has been seriously jeopardized. He, therefore, has urged that the parties were fully aware of the rights and interest of the applicant in the amount Page 13 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 of compensation. They have yet chosen to suppress the material facts before the Court concerned and obtained the decree, frauds since vitiates everything and the deed of compromise arrived at is void as per the provision of Order XXIII Rule 3 of the Code of Civil Procedure on account of the suppression and fraud.
3.13 It is further his say that so far as original defendant Nos.24 and 25 are concerned, they have nothing to do with the dispute in question and yet they were joined as the parties and they have been given 35% share each in the amount of compensation which is also indicative of the fact that this is a fraud played upon the Court. The defendant No.24 is son of Page 14 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 the Member of Legislative Assembly (MLA) and defendant No.25 is the wife of an advocate.
4. This Court issued the notice, couple of the opponents were not served have subsequently been served and Rakesh Mahendrakumar Desai-opponent No.8 filed his affidavit in reply on behalf of the opponents.
4.1 He claimed to be aware of entire gamut of facts and has denied all allegations and contentions.
4.2 It is contended fervently that the very application is frivolous, malicious and unsubstantiated deserves in limine dismissal with exemplary cost. The Page 15 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 application suffers from suppressio Veri and Suggestio Falsi. There is a deliberate and willful suppression of material and the applicant is a complete stranger to the suit proceedings and has no locus standi to approach this Court questioning the consent decree where he is not a party.
4.3 According to this opponent, he is seeking leave to prefer First Appeal against the consent order and decree dated 28.01.2021 passed by the learned 21st Additional Senior Civil Judge, Vadodara in Special Civil Suit. He claims the rights and interest in the amount of compensation to be received by Mr.Jayantibhai Ramdas Patel (original defendant No.1 and opponent No.3 herein) and this is based on one Page 16 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 Memorandum of Understanding ('the MoU' hereinafter) allegedly executed by and between applicant and opponent No.3 on 25.07.2008, which falls short of an enforceable contract.
4.4 It is further contended that this agreement was for rights of compensation with regard to the land bearing survey No.1/A/2, Tikka No.27/15, admeasuring 1,28,073 square meters, which was already acquired by the State Government. 4.5 According to this opponent, the said land was given to the defendant No.1- Jayantibhai Ramdas Patel by the original owner of the land in question i.e. late Shri Mahendrakumar Purushottamrai Desai through Will dated 22.08.1995. This Will is Page 17 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 proved to be a forged Will in other civil and criminal proceedings. Applicant is an accused in criminal proceedings pursuant to the First Information Report filed being I- CR No.77 of 2017 registered with Navapura Police Station for the offences under Sections 465, 467, 468, 471, 474 and 120B of the Indian Penal Code. The applicant deserves to be arrested for conspiracy of the accused to take away land acquisition compensation on the basis of a forged Will for doing Benami Transactions, Money Laundering or for entering into a maintenance and champerty contracts. 4.6 It is further contended that there were various proceedings held between the legal heirs of Mahendrakumar Desai and land Page 18 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 mafias including the applicant and opponent No.3.
4.7 It is urged that the appeal is not allowed to be preferred from a decree passed with the consent of parties, as the Civil Procedure Code bars any appeal against the consent decree passed on the compromise arrived at between the parties of the proceedings. Therefore, when the appeal itself is not available under the statute, no leave to appeal can be filed or granted against the decree passed on compromise and with the consent of parties in the suit proceedings. A person not being a party to the consent decree is not bound by the decree as per the settled position of law. If he has independent rights under any valid document, he has to Page 19 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 establish his rights in independent suit which he has already done and hence, the present application is misconceived and not tenable.
4.8 It is further contended that there is a willful and deliberate concealment by the applicant. It is trite law that the equitable and discretionary jurisdiction may not be exercised in favour of the litigant who has suppressed or stated incorrect facts. The principle enunciated by the Apex Court with reference to equitable and discretionary jurisdiction vis-a-vis the conduct of the parties apply in the present proceedings. The Apex Court often has held that the High Court is exercising discretionary and extraordinary Page 20 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 jurisdiction under Article 226 of the Constitution of India. A Court of Law is also a Court of Equity and therefore, it is utmost necessary when a party approaches a High Court, he must place all the facts before the Court without any reservation. 4.9 It is urged that the applicant has suppressed material facts with regard to Special Civil Suit No.372 of 2017 filed by the applicant with a cause as projected by the applicant. On 16.11.2017, the applicant came to know that the opponent No.3/Defendant No.1 was acting contrary to the MoU dated 25.07.2008 and hence, he filed the suit. It is also interesting, according to this opponent, to note that the order dated 09.04.2007 passed in Page 21 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 Special Civil Suit No.116 of 2007 and alleged settlement between the parties were sought to be projected as basis of MoU. The said order was not in existence since 2009. Moreover, the opponent No.3-Jayantibhai Ramdas Patel clearly stated in other proceedings as well as before the police authority that the alleged Will dated 22.08.1995 was forged Will and all the proceedings initiated on the basis of the said forged Will including the Land Reference No.36 of 2009 had been withdrawn. The said proceedings, according to this opponent, is vexatious and collusive, except opponent No.3 there is no one else who is a party to the said MoU dated 25.07.2008. Two Civil Revision Applications have been pending, challenging the order of Page 22 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 rejection of applications under Order VII Rule 11 of the Code of Civil Procedure. Moreover, Special Civil Application challenging the transfer of the said suit proceedings pursuant to the order of the Apex Court, the said application is pending.
4.10 It is further the say of this opponent that the MoU dated 25.07.2008 is not legal nor valid nor lawful. It is not enforceable under the law nor any rights or interest have been crystallized through the said agreement. The applicant has either forged or concocted the MoU dated 25.07.2008 or willfully and voluntarily remained silent until 23.11.2017 i.e. the date on which the Special Civil Suit No.372 of 2017 was Page 23 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 filed. Moreover, the said agreement cannot create any right or interest in favour of the present applicant to prefer the said application and he is not entitled for leave to appeal as no right or interest of the applicant is affected by the consent order or decree. If at all there is any right arising from the MoU, it is against Mr.Jayantibhai Ramdas Patel in his personal capacity. However, none of the opponents is concerned with the so called MoU. 4.11 It is further contended by the opponent that the claim of the applicant is that the MoU was signed on 25.07.2008 with original defendant No.1. The right of the opponent No.3 in compensation is said to have been acquired by the applicant Page 24 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 pursuant to such MoU of 25.07.2008. However, after the so called agreement, the final payment of compensation at Rs.33 Crore has been received on 31.12.2008 by Mr.Jayantibhai Ramdas Patel and at that time the applicant choose not any claim based on the so called MoU. He even did not join himself in the Land Reference Case after executing the so called agreement. Therefore, the irresistible conclusion can be drawn that the agreement is nothing but a concocted document so as to extort money from the parties.
4.12 On 07.04.2014, the applicant filed a Special Civil Suit No.207 of 2014 against the opponent No.3 Mr.Jayantibhai Ramdas Patel along with others. In the entire Page 25 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 pleadings of the said proceedings, it is nowhere mentioned that they both have executed the MoU dated 25.07.2008. Moreover, the said suit was decreed on the basis of compromise pursis and the applicant settled his claim in the land in question for 19% which is contrary to the said MoU. Therefore, it is the say of the respondent that it is unfathomable as to why a person who had already acquired the alleged 81.90% share of opponent No.3 in the year 2008 settled for only 19% in the year 2014. Thus, the MoU if at all presumed to be a legally enforceable document, ceases to be enforceable by novation. After the said compromise pursis, the applicant cannot fall back to the MoU dated 25.07.2008 as it no longer exists. Page 26 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 4.13 On 28.06.2016, one Pravin Prahladbhai Patel filed a Special Civil Suit No.245 of 2016 against the applicant claiming that he had an agreement to sell in his favour for the land in question. The said suit was withdrawn after compromise arrived at between the parties and in the said proceedings, the applicant had not stated about the so-called MoU dated 25.07.2008. 4.14 Again on 15.12.2016, a criminal complaint against the applicant and others had been filed by the opponent No.8 and pursuant to the said FIR was registered and the Will dated 22.08.1995 was found to be forged. There were various proceedings initiated by other co-accused.
Page 27 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 4.15 The Apex Court passed an order on 26.04.2017, whereby it is directed that all the suit proceedings shall be decided along with Land References and any party claiming interest in the compensation may apply for joining in the reference or other civil suit. However, the applicant choose not to join in either of the proceedings i.e. in the Land Reference of Civil Suits for all these years.
4.16 On 07.08.2017, the FIR No.77 of 2017 is registered and the investigation is in progress. During the bail proceedings of the co-accused, the Investigating Officer had filed a detailed affidavit seeking remand of one of the co-accused wherein the role of applicant was clearly mentioned as Page 28 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 that of the accused. These all are clearly indicative of the fact that the claim of the applicant regarding MoU dated 25.07.2008 has no substance. More particularly, the criminal mindset as revealed in the affidavit of the Investigating Officer dated 01.10.2018 suggests that the applicant is a land mafia and only to frustrate the legal entitlement of the opponent, the present application has been preferred.
4.17 It is not disputed that neither the opponent nor any family member is a party to the MoU dated 25.07.2008 and therefore, there is no privity of contract between the applicant and others. Assuming without admitting that the agreement is true, valid Page 29 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 and legal. His entitlement is against the opponent No.3 and it cannot any right and/or interest in favour of the applicant against the opponent or his family members. 4.18 It is further stated in the affidavit that no right, title or entitlement can be created through a criminal act. The sole basis of the agreement is a forged Will dated 22.08.1995 for which criminal machinery is set in motion.
4.19 It is also fervently urged that the fence sitters cannot be given the right to prefer an appeal by granting the leave. The law assists those who are vigilant with their rights and not those who are asleep. The applicant was well aware that there were various proceedings going on by and Page 30 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 between the parties. He had not thought it appropriate to explain as to what has prevented him to join the lis while they were pending adjudication. Therefore, even if the claim of the applicant is considered true, he is disentitled to raise any grievance with regard to the conduct of the opponent No.3. He has other legal remedies available and it is wrong to say that he is remediless.
4.20 Repeatedly it has been urged that the applicant had been closely watching all the proceedings since the year 2008 and on his having failed to assert all his rights for more than nine years, he filed a suit against Mr.Jayantibhai Ramdas Patel and thereafter also, for challenging this Page 31 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 consent decree after a long lapse of the limitation period prescribed for filing appeal, the leave should be denied to him with cost.
5. The opponent also filed an additional affidavit stating therein that applicant took shelter of some of the unserved respondents whose rights and interests over the compensation awarded in the LAR have already been purchased by the respondent Nos.25 and 26 viz. Amar Ramnbhai Patel and Sushilaben Rajendrakumar Barot. The applicant deliberately and in collusion with respondent Nos.25 and 26 wanted to delay the hearing of the application by using a dilatory tactic.
5.1 Once again by order dated 07.04.1980 Page 32 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 the Assistant Collector, Vadodara reiterated that the lands were of the Government ownership. The said order was challenged in appeal No.151 of 1980 before the Revenue Tribunal, which was returned on the ground of jurisdiction. The deceased Mr.Desai preferred an appeal No.15 of 1989 before Collector, Vadodara, who by its order dated 14.05.1983 dismissed the appeal. After delay of seven years, the said order was challenged in Revision Application No.39 of 1990 before the Revenue Tribunal, which came to be allowed by judgment dated 29.11.1991 holding that the land in question admeasuring 53 Vighas and 17 Vasas was of ownership of Mr.Mahendrakumar Desai.
Page 33 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 5.2 The said order of Gujarat Revenue Tribunal was challenged by the Collector by way of Special Civil Application No.6528 of 1992 before this Court. While this was pending, the State filed Special Civil Suit 776 of 1992 in the Civil Court, Vadodara challenging the legality of the said decision dated 29.11.1991 passed by the Gujarat Revenue Tribunal in Revision Application No.36 of 1990 and prayed for declaration and injunction in respect of the land in question admeasuring about 1,28,073 square meters. The Division Bench of this Court dismissed the Special Civil Application No.6528 of 1992 because of preferring of the suit being 776 of 1992. By judgment and decree dated 21.03.1994 the Civil Court, Vadodara dismissed the suit Page 34 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 filed by the respondent No.1 State. 5.3 Aggrieved State challenged the said judgment and decree by way of First Appeal No.969 of 1994. The High Court by judgment dated 07.05.2002 dismissed the First Appeal. During the pendency of the First Appeal, the respondent-State had preferred Civil Applications seeking to produce additional evidence on record of the First Appeal to show that the Government owned this land. These applications were numbered as Civil Application Nos.4849 of 2000, 964 of 2002 and 1150 of 2002. They were dismissed by the High Court by different orders. Aggrieved State had also challenged the decision of First Appeal No.969 of 1994 and rejection of the Civil Application by Page 35 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 preferring Special Leave being Civil Appeal No.7898 of 2002 and 7900 of 2002 before the Apex Court, where the Apex Court by its judgment dated 10.04.2006 held that the State was the owner of the land admeasuring 2 Vighas and 5 Vasas and accordingly put an end to the entire dispute with regard to the ownership accepting the claim of the State for only limited area of 2 Vighas and 5 Vasas and confirming the ownership of Mr.Desai for the remaining land of 53 Vighas and 73 Vasas.
5.4 Thus, this 1,22,718 square meters of land had been held to be of the ownership of the deceased Mr.Desai. The State also preferred Review Application before the Apex Court which was dismissed on Page 36 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 11.07.2006.
5.5 While this contest was on, Mr.Mahendrakumar Desai died in October 1995 leaving behind him several heirs and legal representatives. He died intestate. It was not in dispute that the said lands in question were ancestral and coparcenery properties.
5.6 After a lapse of about six years since the death of Mr.Mahendrakumar Desai when the proceedings were pending, Mr.Jayantibhai Ramdas Patel staked the claim as a legatee of having been bequeathed the land in question in favour of him by virtue of a Will dated 22.08.1995, purportedly signed by Mr.Mahendrakumar Desai. He claimed Page 37 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 testamentary succession on the basis of the Will in his favour for the first time in the year 2001, six years after the date of the alleged Will and the death of Mr.Mahendrakumar Desai on 31.10.1995. On the basis of the said Will, he applied in September 2001 the probate of the Will by preferring Civil Misc. Application No.224 of 2001 in Civil Court, Vadodara. He chose not to join any heirs or legal representatives of Mr.Mahendrakumar Desai and even the witnesses of the alleged Will were not examined to prove the Will while seeking the probate. The Court concerned within a span of one month granted probate of the Will in favour of the alleged legatee Mr.Jayantibhai Ramdas Patel.
Page 38 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 5.7 After the probate was granted in October 2001, three heirs of
Mr.Mahendrakumar Desai i.e. the petitioner of Special Civil Application No.2923 of 2009, his widow and two sons Mr.Anant Desai and Mr.Rakesh Desai filed Probate (Revocation) Application No.23 of 2003 seeking revocation of probate. The Court revoked the same on 02.09.2004.
5.8 However, since the name of the alleged legatee Mr.Jayantibhai Ramdas Patel was entered into the City Survey Record on the basis of Probate Certificate, the deceased Mr.Desai's heirs filed appeal against the entry.
5.9 The defendant No.1-Jayantibhai Ramdas Patel preferred a Special Civil Suit No.116 Page 39 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 of 2007 joining only three heirs in the Civil Court, Vadodara praying that he be declared as the sole and absolute owner of the land in question. After almost two years, since the order revoking the probate had passed, the alleged legatee preferred an application being Review Application No.169 of 2006 seeking to review the order of revocation of probate wherein he joined these three heirs.
5.10 On the other hand, after the Apex Court's judgment and order of 10.04.2006, the State Government commenced proceedings of requisition of land. The Notification dated 25.01.2007 under Section 4 of the Land Acquisition Act, 1894 ('the Act' for short) was issued and it was followed by Page 40 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 the declaration under Section 6 of the said act. Mr.Desai's heirs seriously objected to any disbursement in favour of Mr.Jayanti Ramdas Patel and other persons. It appears that Mr.Jayantibhai Ramdas Patel around that time entered into alleged MoU on 09.04.2007 as claimed by the petitioners of Special Civil Application No.1592 of 2009. Actually, the same was signed on behalf of three persons as the power of attorney holder, who are the plaintiffs since Suit No.308 of 2008 for apportionment of compensation in ratio of 81.90% and 18.10% amongst them and on the same day, a compromise pursis was filed in the earlier referred Special Civil Suit No.116 of 2007 which was disposed of on the same day on the basis of the said compromise pursis. Page 41 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 The Review Application No.169 of 2006 preferred by Mr.Jayantibhai Ramdas Patel was also allowed on the basis of the said compromise pursis and the order passed in Special Civil Suit No.116 of 2007. 5.11 A Suit being Special Civil Suit No.516 of 2008 was filed by two grandsons, who also were petitioners in Special Civil Application No.1592 of 2009 of deceased Mr.Mahendrakumar Desai challenging the capacity of the deceased Mr.Mahendrakumar Desai to bequeath the ancestral property by the alleged Will. In the said Special Civil Suit No.516 of 2008 all the heirs, land acquisition officers and Mr.Jayanti Patel were joined as party defendants. The heirs lodged objections against disbursement in Page 42 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 favour of Mr.Jayanti Patel and claimed right and interest in the land in question and also sought reference under Section 30 of the Act. They lodged the protest on various dates in the year 2008. However, the Land Acquisition Officer passed the award on 11.12.2008 under Section 11 of the Act and determined the total compensation payable in respect of the land in question to the tune of Rs.33,33,15,552/- and since the sum of Rs.23,48,82,252/- had already been paid as ad-hoc advance payment, the compensation of Rs.9,84,33,300/- remained to be paid. They prepared the Treasury Bills and facilitated the withdrawal of the compensation amount and also obtained the advance receipt from Mr.Jayanti Patel. Page 43 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 5.12 It emerges that on 30.12.2008 Mr.Jayanti Patel was paid Rs.8,06,16,873/-, 81.09% share fixed by MoU and 18.1% being Rs.1,78,16,427/- out of the total sum of Rs.9.84 Crore (rounded off) was initially deposited in the Court, but the Land Acquisition Officer subsequently reclaimed the deposited amount. The petitioners of Special Civil Application No.1592 of 2009 were intimated that the Reference under Section 30 of the Act cannot be entertained, they claimed that the award dated 11.12.2008 when had culminated into disbursement of compensation, a Reference under Section 18 of the Act was preferred by Mr.Jayanti Patel and Land Acquisition Officer may not disburse higher compensation.
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C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 5.13 It appears as mentioned above that CTS Appeal had been preferred as Mr.Jayantibhai Ramdas Patel had mutated his name as the sole and exclusive owner of the land in question. Direction had been sought that the names of the petitioners also be incorporated in Special Civil Application 20703 of 2007. It was also urged that they be declared as entitled to receive compensation at the rate of 18.10% out of total compensation.
5.14 The Special Civil Suit No.308 of 2008 was to challenge the settlement on the ground that the same was null and void. It was also urged in the Special Civil Application No.2923 of 2009 that the sanction accorded to the draft award was Page 45 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 subject to certain conditions and the proceedings under Sections 30 and 31 of the Act should be followed if any dispute exists with regard to the title. At that stage, a Writ Petition being Special Civil Application No.6686 of 2008 also was preferred praying inter alia that the order dated 04.12.2007 be set aside and to hear the petitioners and their objections as well as for seeking directions against the Land Acquisition Officer and others to deposit Rs.4.20 Crore (rounded off) paid to the heirs of the deceased Mr.Mahendrabhai Desai and Rs.19.23 Crore (rounded off) paid to Mr.Jayantibhai Ramdas Patel. 5.15 Special Civil Application Nos.1592 of 2009 and 2923 of 2009 also deserve Page 46 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 reference at this stage. Special Civil Application No.7242 of 2009 also deserves a reference where it was contended that the expert had opined the signature of alleged Will is not of deceased Mr.Mahendrakumar Desai. This entire challenge resulted into this Court in Special Civil Application No.1592 of 2009 holding that the recipient of the disbursed compensation Mr.Jayaanti Patel and heirs under the award under Section 11 of the Act should return and refund the amount. The Court also in no unclear terms held that not only the alleged legatee Mr.Jayantibhai Ramdas Patel, but also the three heirs who have been paid a part of the compensation should return the amount so that after the decision of the court, the compensation can Page 47 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 be paid to the persons lawfully entitled to. Necessary and appropriate directions to the said effect had been given this wise.
"14. As an upshot of the aforesaid discussion, in our opinion, the following directions will meet with the requirements and also fulfill the ends of justice. It is, therefore, directed that :-
(a) the Respondent Mr.Jayantibhai R.Patel (i.e. the alleged legatee who is respondent No.4 in SCA No.1592/2009 and Respondent No.3 in SCA No. 2293/09) shall return-repay, to the respondent No.2 LAO/Respondent No. 1 State Government, within eight weeks from today, the compensation amount of Rs.27,29,85,437/- and any other and further amounts that he might have been paid by/he might have received from the said respondents No. 2 & No. 1 and the heirs of deceased Mr. Mahendrakumar P Desai who have been paid/have received payment of compensation to the tune of Rs. 4,25,13,688/- shall also Page 48 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 return-repay to the Respondent No.2. LAO /Respondent No. 1 State Government, within eight weeks from today, the said amount of Rs.4,25,13,688/- and shall also return-
repay any other/further amounts that they might have received from the said respondents No.2 and No.1.
(b) it is open to the respondent No.1 State and the LAO to take steps to reclaim and recover the disbursed compensation from the alleged legatee Mr. Jayantibhai R. Patel and the heirs/L.R.s of deceased Mr.Mahendrakumar P. Desai i.e. the persons in whose favour the compensation has been disbursed- paid.
(c) the respondent No.2 LAO and respondent No.1 State shall deposit the compensation amount determined under the award in the court competent to receive and try the reference under the Act, within nine weeks from today.
(d) after such deposit the court shall invest the amount in FD (cumulative interest) with a nationalized Bank, in the name of Nazir of the court and shall continue to reinvest the amount till the final decision in the suit proceedings Page 49 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 of Special Civil Suit No.308/08 and Special Civil Suit No.516/08 pending in Civil Court at Vadodara and also till the decision in the reference.
(e) the LAO/Collector shall make reference under section 30 within 15 days from the date of receipt of this judgment and order.
(f) the court shall try to complete the pending proceedings of the 2 suits (Special Civil Suit No.308/08 and Special Civil Suit No. 516/08) within 6 months. In the result SCA No.1592/2009 and SCA No.2923/2009 are disposed off in terms of the aforesaid observation and directions. Rules is made absolute to the said extent. In the facts of the case there shall be no order as to costs.
At this stage, learned advocate for respondent No.4 prays for stay of operation of this judgment to have further recourse in accordance with law. Page 50 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 Since we have already granted eight weeks time to deposit the amount, the request is rejected." 5.16 The Court disposed of Special Civil Application Nos.1592 of 2009 and 2923 of 2009. The same was challenged before the Apex Court, where the Court decided the expeditious hearing of the Suit preferably within a period of six months from the next date fixed before the Civil Court and till the decision of the matter, the interim order passed by the Apex Court on 06.04.2010 had directed to be continued, which is as follow:
"Heard.
Heard Dr. A.M. Singhvi, Mr. C.U. Singh and Mr.K. Vishwanathan, learned senior counsel for the parties.
Matters are with respect to the disbursement of compensation to the various rival claimants. Some civil Page 51 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 suits and the matters before the land acquisition officer which are stated to be pending considerations and this court has also permitted on 6.4.2010 to make a reference under Section 30 of the Land Acquisition Act, 1894 (in short 'the Act'). This court after hearing learned counsel for the parties, vide order dated 6.4.2010, has directed that the land acquisition officer as well as civil court to decide Special Civil Suit Nos. 521 of 2007, 308 of 2008 and 516 of 2008 and Land Reference Nos. 35 of 2009, 36 of 2009, 37 of 2009 and 55 of 2009 as expeditiously as possible. Besides that at present reference under Section 30 of the Act is stated to be pending as per the order passed by this court on 6.4.2010. In the circumstances, we expedite the decision of the civil suits as well as the reference court under Section 18 and the case made under Section 30 of the Act. The interested parties are free to join the pending proceedings/suit, as the case may be, for determination of their entitlement.
Let the suit as well as the pending reference be considered and decided expeditiously preferably within six months from the next date fixed before the civil court. Till the decision of the matters, the interim order passed by this court on 6.4.2010, which is extracted hereunder, shall continue:
"Delay condoned.
Exemption allowed.Page 52 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 Applications for impleadment, intervention and to bring on record the subsequent facts and additional documents are allowed.
Permission to file lengthy list of dates is granted. Leave granted.
The parties are directed to complete the pleadings within four weeks.
In the meanwhile, we direct the appellant-Jayantibhai Ramdas Patel to deposit Rupees two crores within two weeks with the Land Acquisition Officer. The amount be deposited in a FDR with a nationalised Bank.
We also direct the Land Acquisition Officer and the Civil Court to proceed with the cases. Pendency of these appeals before this Court would not mean stay of the proceedings before the Land Acquisition Officer or the Civil Court.
By the impugned directions of the Division Bench of the High Court, the Land Acquisition Officer shall make Reference under Section 30 of the Land Acquisition Act, 1894, within fifteen days. After the Reference is made, the learned District Judge would either hear the case himself or assign it to any other court of competent jurisdiction.Page 53 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 We direct the Land Acquisition Officer and the Civil Court to decide Special Civil Suit Nos. 521 of 2007, 308 of 2008 and 516 of 2008 and Land Reference Nos. 35 of 2009, 36 of 2009, 37 of 2009 and 55 of 2009 as expeditiously as possible.
The appellants in Civil Appeals arising out of SLP(C) No. 5071 of 2010 and SLP(C) No..../2010 (CC 2795/2010) would be at liberty to file the application for impleadment and the same would be decided in accordance with law after hearing learned counsel for the parties.
The directions of the High Court directing the parties to deposit the balance amount shall remain stayed till further orders.
In case the amount, as directed, is not deposited, this order would be of no avail to the appellant(s)."
In case the refund is required, the concerned incumbents shall refund the amount after adjusting the amount deposited pursuant to the order passed by this court on 6.4.2010, within a period of three months as may be ordered by the concerned court. In case refund is not made, it shall be treated to be violation of the directions made by this Court.
Page 54 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 The appeals are disposed of.
SPECIAL LEAVE PETITION (C) Nos. 26400-26401 of 2012 These SLPs have arisen out of the W.P.(C) No.7242 of 2007. Issue in this writ petition may be decided alongwith the Special Civil Suit Nos. 521 of 2007, 308 of 2008 and 516 of 2008 and Land Reference Nos. 35 of 2009, 36 of 2009, 37 of 2009 and 55 of 2009 as the case may be on appropriate prayer been made in this regard. Accordingly, special leave petitions are disposed of."
It is quite clear that the Court had directed initially the deposit of Rs.2 Crore to Mr.Jayantibhai Ramdas Patel and the amount was to be fixed deposited with the Nationalized Bank. The Court also expedited the Suit to be adjudicated within six months preferably. This order of the Apex Court dated 26.04.2017 was prior to the lodgment of the FIR on 07.08.2017 which Page 55 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 gives chronological details of litigations and the alleged forgery purported by Mr.Jayantibhai Ramdas Patel and others.
6. In Special Criminal Application No.4390 of 2017 on 10.07.2017 the Investigating Authority was asked to send a copy of the Will to the FSL. It is apt to reiterate that Criminal Misc. Application No.20809 of 2017 had been preferred on 14.11.2017 by Mr.Jayantibhai Ramdas Patel for quashing of the FIR which eventually was withdrawn.
7. On 23.11.2017, Special Civil Suit No.372 of 2017 was preferred by the present applicant on a cause of action as projected by him that the opponent No.3-Jayantibhai Ramdas Patel was acting contrary to the alleged settlement deed dated 25.07.2008. Page 56 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022
C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 The same has been suppressed in the present proceedings.
8. Mr.Rakesh Desai-opponent No.8 preferred Civil Suit No.227 of 2019 before the Court of learned Senior Civil Judge, Vadodara seeking declaration that decree dated 15.04.2016 passed in Special Civil Suit No.207 of 2014 is null and void as was passed upon a collusive and fraudulent settlement between the parties. The said suit is pending for adjudication and the applicant is also a party defendant in the said suit. On 30.09.2021 the order was passed under Order VII Rule 11 of the Code of Civil Procedure in Special Civil Suit No.372 of 2017 preferred by the present applicant which was rejected. On 11.10.2021 Civil Revision Applications No.432 and 433 Page 57 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 of 2021 filed by Mr.Desai against the order under Order VII Rule 11 of the Code of Civil Procedure are pending for adjudication before this Court.
9. The moot question that requires to be addressed is as to whether the present applicant would have any locus in approaching this Court and asking for grant of leave for the purpose of challenging the compromise decree arrived at by and between the third party on the strength of the MoU dated 25.07.2008. Admittedly, the said MoU dated 25.07.2008 is between the applicant and the opponent No.3. There is no privity of contract with the Desai family. This surely cannot be an armour to challenge the compromise decree as the law does not permit challenge of the compromise decree Page 58 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 so easily. Moreover, there are two suits which are not referred to being Special Civil Suit No.207 of 2014 and Special Civil Suit No.245 of 2016. If one looks at Special Civil Suit No.207 of 2014, the present applicant Shankarbhai Keshubhai Patel and four others namely Patel Yogendrakumar Govindlal, Patel Dineshbhai Shakrabhai, Patel Ramanbhai Dhulabhai and Rajendra Narottambhai Barot have preferred against the opponent No.3 Jayantibhai Ramdas Patel and one Patel Amrutbhai Babalbhai for specific performance under the law. If one looks at the plaint, it speaks of the very land which was owned by Mr.Desai admeasuring 1,28,073 square meters and described as a suit land. The basis of this suit is that the opponent No.3 Mr.Jayantibhai Ramdas Patel had carried out a Banakhat in favour of Mr.Amrutbhai Page 59 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 Babalbhai Patel (defendant No.1 in that suit) on 08.05.1997. It was a Banakhat for the amount of Rs.33.05 Crore. The defendant No.1 of that suit was to be given 50.95% of the share from the share of defendant No.2 Jayantibhai Ramdas Patel and defendant No.1 from out of this 50.95% share he was to get from Mr.Patel had given 36% of that share to all the plaintiff and such a Banakhat on 16.11.1998 had already been executed. The sale consideration of Rs.3,75,000/- had been given in cash and Rs.12.11 Crore was decided to be the amount which was 36% share of all the plaintiffs. After once the title was cleared they were to pay Rs.12.07 Crore to the defendant No.1. The share in favour of the present applicant-Shankarbhai Keshubhai Patel was 19%. It is the say of Page 60 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 the present applicant in another set as per condition No.10 of the said Banakhat the limitation was of getting the clearance of the title. It further makes a mention of the Special Civil Suit No.320 of 2013 preferred by Mr.Jayantibhai Ramdas Patel before the Court of learned Senior Civil Judge, Vadodara for declaration and injunction.
10. It is also notable at this stage when the question is with regard to the concept of aggrieved party, the locus standi of a person will need to be considered. This Court in case of Patel Vinodbhai Khodidas vs. Patel Pravinbhai Kacharabhai was considering the concept of aggrieved party and also was examining the locus standi. It was a case of suit for specific performance Page 61 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 where compromise decree had been entered, the applicant was not a party to the suit. He sought permission to file a leave to appeal. It has been held by the Court that in order to be entitled to prefer an appeal, a person must be one who can be said to be aggrieved against the judgment and this aggrievement has to be a legal aggrievement where the aggrieved person could be said to be prejudicially affected to permit him to prefer an appeal even if he is not a party to the suit proceedings. His interest must be appealable interest. Party which would be benefited because of the change in the judgment by redressal of legal injuria, is said to have an appealable interest. The Court held that the change in the judgment prayed to be Page 62 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 appealed against by the third party, when brings an immediate right or legal benefit, then the person can be said to be having appealable interest, this should not be contingent, speculative or futurative. The appealable interest must be substantial and immediate. The applicant who claims to have the interest on the basis of the agreement to sell, could not be said to be holding any interest in the property to be within the definition of legally aggrieved or prejudiced persons and thus he was not held to be 'aggrieved party' vis-a-vis the compromise decree having regard to the legal status. The Court held that there is no appealable interest in connection with the compromise decree.
Page 63 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 10.1 In case of Patel Vinodbhai Khodidas (supra) this Court has held thus:
"xxx (2) The precise question that falls for consideration is whether in the facts of the case the applicants herein, who were not party to the suit which resulted into compromise decree between the parties to the suit, could be said to be 'aggrieved person' to be entitled to be conferred right to appeal and to be consequentially granted leave to appeal.
Xxx (9) Having discussed the principles of law as above and particularly considering the concept of 'aggrieved person' to be entitled to enjoy the right to appeal, now the basic facts of the case may be recapitulated and reverted to. The plaintiff Patel Pravinbhai Kachrabhai of Special Civil Suit No.31 of 2012 had executed agreement to sell dated 05th August, 2008 in respect of the subject matter property involved in the above Special Civil Suit for specific performance between the plaintiff and the defendants in favour of one Patel Bharatkumar and three others. This Bharatkumar and three others, subsequently on 09th December, 2008 executed another document being agreement for sale in favour of the present applicants. Page 64 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 When the suit was compromised between the parties to the suit, the applicants on the basis of the above agreements dated 05th August, 2008 followed by 09th December, 2008 claimed their interest to project themselves as the party aggrieved qua the compromise decree.
(9.1) In other words, what is fundamental is that in order to be entitled to prefer an appeal, a person must be one who can be said to be aggrieved against the judgment. This aggrievement has to be a legal aggrievement where the aggrieved person could be said to be prejudicially affected to permit him to prefer appeal even if he is not a party to the suit proceedings. He must have an appealable interest. A party who would be benefited because of the change in the judgment by redressal of legal injuria, is said to have an appealable interest. The change in the judgment prayed to be appealed against by the third party, when brings an immediate right or legal benefit, then the person can be said to be having appealable interest. This appealable interest should not be contingent, speculative or futurative. The appealable interest must be substantial and immediate.
(9.2). In order to acquire the status of aggrieved party, the person must have legal interest and an enforceable Page 65 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 right which would in turn allowing him to question the decree or order by preferring appeal, though he may not be a party to the suit or proceedings. The applicants who claim their interest on the basis of the agreements to sell as above could not be said to be holding any interest in the property to be within the definition of legally aggrieved or prejudiced persons. As the applicants are not 'aggrieved party' vis-a-vis the compromise decree having regard to their legal status, they could not be clothed with right to appeal. They do not have 'appelable interest' in connection with the compromise decree.
10. The present applicants do not qualify on facts and in law to be the aggrieved persons to be entitled to question the compromise decree between the parties to the said Special Civil Suit by preferring appeal there against. Whatever rights the applicants can claim on the basis of agreement to sell in their favour, they have to establish such rights and the enforceability thereof in an independent proceedings by filing separate suit. The leave to appeal cannot be granted to the applicants." Examining from the various decisions of the Apex Court as to whether the applicant could be said to be a aggrieved party for Page 66 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 him to be permitted leave to appeal, answer is undoubtedly in negation.
11. The basic fact of the case when are reverted to, they would make it abundantly clear that the applicant had a knowledge of pendency of various decisions. The MOU itself which is alleged to be absolutely fraudulent dated 25.07.2008 makes a mention of the litigations between the parties. There appears to be a clear suppression of details of two suits being Special Civil Suit Nos.207 of 2014 and 245 of 2016 as rightly urged on behalf of the original plaintiffs, learned senior advocate, Mr.Asim Pandya that various proceedings have been referred to in the MoU. The applicant is a purchaser of the litigation and his rights are independent. He ought to Page 67 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 have protected his rights which he claims to have been assigned by Mr.Patel. The Reference before the Land Reference Court was in the year 2008, the issue of apportionment was also at large before the Reference Court under Section 30 of the Act, the award has come on 08.03.2022 pending this leave to appeal. 2008 onward, he was a fence sitter who never preferred any application also.
12. It is to be remembered that on 31.12.2008 the final award in Land Reference Case has come. It is also a point-worth noting that in Special Civil Suit No.207 of 2014, the Banakhat of 16.11.1998 speaks of 19% share of the present applicant. Earlier proceedings were already pending before he actually entered Page 68 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 into this. Section 54 of the Transfer of Properties Act will need to be taken into consideration, there is no explanation worth the name as to why for all these years, what prevented him from joining himself as a party, as an assignee of the interest. The least he could have done was to approach the Court below knowing fully well that there was a pendency of the special suits which had been directed by the Apex Court to be decided in stipulated time period.
13. This appears to be a clear design on the part of Mr.Jayantibhai Ramdas Patel who per-force has gone out of the compromise by saying that he will not be asking for any share while introducing possibly on his behalf, the opponent Nos.21 and 24 in the Page 69 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 original suit. It is also noteworthy that the Division Bench of this Court had directed in Special Civil Application No.1592 of 2009 and allied matters the deposit of the entire amount which had been given to him by the Land Acquisition Officer. However, out of that Rs.33 Crore that he received, only Rs.2 Crore had been thereafter deposited by him because of the Apex Court's order. When he challenged the said decision of this Court in Civil Appeal No.3224 of 2010, the Apex Court stayed the order of the Division Bench and directed the suit to be proceeded within a period of six months. Unfortunately, in that suit the compromise had been arrived at where the choice possibly between the family was of devil or the deep sea and hence, it has Page 70 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 permitted him to retain the amount which he had with him as there is no mention of such amount which otherwise he was directed to be refunded and we have confirmed this aspect from the senior advocate, Mr.Asim Pandya. After his retaining this amount, 70% share has been taken by the two outsiders whom the plaintiffs themselves have allowed to enter because of their political clout. On noticing actual purport of such action, the Court is much at pain to note that this litigation of number of years is stretched beyond imagination by those who are court birds and such protracted litigation has capacity to tire the genuine litigants who then fall prey to such temptation of ending the disputes as has happened in the instant case. It is though ostensibly a genuine and Page 71 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022 C/CA/1826/2021 JUDGMENT DATED: 09/12/2022 permissible compromise under the law. On reading between the lines, prima facie, it seems to be the attempt largely to wriggle out of the clutches of such elements, possibly born out of misery, helplessness and frustration as no light of justice at the end of long tunnel of litigation probably was visible. However, the applicant being that cause, essentially, he surely is not the party which deserves any entertainment to allow him the leave to prefer appeal and question the decree. If he has any cause to pursue, he can take his own recourse under the law and he would know in what way to pursue the same without this court needing to spell the same out explicitly.
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C/CA/1826/2021 JUDGMENT DATED: 09/12/2022
14. Resultantly, this application is rejected in view of the foregoing discussion with the cost of Rs.5,00,000/- (Rupees Five Lakh Only) which shall be paid to the heirs of late Mr.Mahendrakumar Purshottambhai Desai.
15. None of the findings and observations shall prejudice the right of the litigants nor would they shall come in the way of the parties in pending litigation.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) M.M.MIRZA Page 73 of 73 Downloaded on : Sat Dec 24 02:29:53 IST 2022