Gujarat High Court
Lhrs Of Decd. Aher Babu Bhagvan vs Arunkumar Jagdishchandra Joshi on 13 June, 2025
NEUTRAL CITATION
C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7239 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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LHRS OF DECD. AHER BABU BHAGVAN & ORS.
Versus
ARUNKUMAR JAGDISHCHANDRA JOSHI
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Appearance:
MR. ZALAK B PIPALIA(6161) for the Petitioner(s) No.
1,1.1,1.10,1.10.1,1.10.2,1.10.3,1.10.4,1.10.5,1.10.6,1.10.7,1.2,1.3,1.4,1.5,1.6,
1.7,1.8,1.9,2
NOTICE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/06/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr.Zalak B. Pipalia for the petitioners. Though served, none appeared for respondent.
2. The present application is filed under Article 227 of the Constitution of India, seeking the following relief:-
(A) YOUR LORDSHIPS may be pleased to admit and allow this petition;
(B) YOUR LORDSHIPS may be pleased to issue a Writ of Certiorari or Writ in Nature of Certiorari or any other appropriate Writ, Order or Direction, quashing and setting aside the impugned order dated 29.04.2025 at Annexure-A passed by the Ld. Principal Senior Civil Judge, Veraval and thereby allow the objections at Page 1 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined Exh.10 filed by the petitioners in the interest of justice;
(C) Pending admission, final hearing and disposal of the petition, YOUR LORDSHIPS may be pleased to stay further proceedings of the Special Civil Execution No.2 of 2022 in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to pass such other order as may be deemed just and proper in the circumstances of the case.
3. The Short Facts of the Case:-
3.1. One Bhagvan Raja was having various parcels of land in Village Amrapur, Taluka Viraval, District Gir Somnath. The plaintiff of the suit, i.e., Aher Ram @ Sidi Bhagvan, was the son of Bhagvan Raja from his first wife, and original Defendant Nos. 2 and 3, namely, Babubhai Bhagvanbhai and Mensibhai Bhagvanbhai respectively, are the sons of the second wife of the said Bhagvanbhai Raja.
3.2. It appears that during the lifetime of the said Bhagvanbhai, his son from his first wife, namely, Aher Ram @Sidi Bhagvan, instituted the suit for partition, being Special Civil Suit No.41 of 1989, claiming his share from the undivided property belonging to his father, Bhagvanbhai Raja.
3.3. The said suit was heard and decided by the Trial Court, and at the first instance, a preliminary decree in favour Page 2 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined of plaintiff was passed on 12.09.1990. The said preliminary decree was subjected to First Appeal No. 2390 of 1993, filed at the instance of the defendants before this Court.
3.4. It appears that during the pendency of the aforesaid first appeal, the original plaintiff, namely, Aher Ram @Sidi Bhagvan, died, and by virtue of his Will dated 07.11.1992 executed in favour of his legal representatives, namely, Aher Dana Pitha, Aher Punja Pitha, Aher Naran Pitha and Aher Parbat, who happen to be his maternal cousins, as well as one Mr. Joshi Arunkumar Jagdishchandra, joined in the aforesaid first appeal on 21.04.1995, though objected by appellants-
defendants (petitioners).
3.5. After hearing the parties, the Division Bench of this Court, vide its judgment and order dated 20th January, 2001, dismissed the aforesaid appeal. Consequently, the preliminary decree passed by the Trial Court was confirmed. 3.6. After completion of the process, finally, the Trial Court passed the final decree vide its judgment and order dated 13 th February 2020, wherein all legal contentions so raised by the Page 3 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined petitioners herein, objecting to the grant of any relief in favor of the newly added party, i.e., the legal representatives of the deceased plaintiff, were turned down. The petitioners have not questioned such final judgment and decree dated 13 th February, 2020 passed by the Trial Court; thereby, it has become final. 3.7. It is apposite to record that as per the preliminary decree passed in the year, 1990, so far as the partition of agricultural lands are concerned and such portion of implementation / division of agricultural lands is concerned, the decree was already sent to the Revenue Authority, i.e., the Collector for its partition in metes and bound. 3.8. So far as another facet of the final decree is concerned, i.e., mesne profit, at the given point of time, the Court Commissioner was appointed, and he had submitted a report in the year 1992, whereby, the mesne profit was already decided, which was never questioned by the petitioners-defendants. So, the plaintiff is entitled to receive Rs.2,74,810.25/- annually as a mesne profit from the defendants till they receive possession of the suit lands as per Page 4 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined decree.
3.9. It further appears that out of the five legal representatives of the original plaintiff, one representative, namely, Mr. Joshi Arunkumar Jagdishchandra, instituted Special Execution Application No.2 of 2022, claiming such mesne profit from the defendants. The petitioners herein appear to have submitted their detailed objection at Exhibit 10. 3.10. After hearing the parties concerned, the Executing Court, vide its order dated 29th April, 2025, rejected the objections of the petitioners herein.
4. Being aggrieved and dissatisfied with the impugned order passed by the Executing Court, the present writ application is filed at the instance of the petitioners-judgment debtors.
5. SUBMISSION OF THE PETITIONERS-JUDGEMENT DEBTORS-DEFENDANTS 5.1. Learned Advocate Mr. Pipalia would submit that the execution petition at the instance of the respondent, who happens to be one of the legal representatives of the deceased plaintiff, is not maintainable inasmuch as the decree is not Page 5 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined executable in accordance with law. So, the Executing Court has committed a serious error of law by not accepting the objections so raised by the petitioners vide Exhibit 10 in the execution proceedings.
5.2. Learned Advocate Mr. Pipalia would further submit that the respondent is not claiming any possession of the agricultural suit lands, which are agricultural lands, knowing fully well that he is not an agriculturist and not entitled to get an agricultural land either by way of Will or through a decree; then, the respondent cannot get any mesne profit. 5.3. Learned Advocate Mr. Pipalia would submit that when the principal relief, i.e., getting possession of the agricultural land, is not executable through execution of the decree, the consequential relief, i.e., mesne profit, cannot be granted in favor of the respondent by granting such relief through execution.
5.4. Learned Advocate Mr. Pipalia would further submit that as per Section 54 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949, (herein Page 6 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined after referred as Gharkhed Ordinance) which is pari materia with Section 43 read with Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, (herein after referred as Tenancy Act) which bars a non-agriculturist from receiving an agricultural land in any form, like execution of a Will and/or decree in his favor.
5.5. In support of his submission, he would rely upon the decision of the Full Bench of the Hon'ble Supreme Court of India in the case of Vinodchandra Sakarlal Kapadia vs. State of Gujarat and others, reported in (2020) 18 SCC 144. 5.6. Learned Advocate Mr. Pipalia would further submit that the respondent is unable to show that written permission was obtained by him from the Collector whereby he can get possession of the agricultural land, i.e., the suit lands, as per the decree.
5.7. Learned Advocate Mr. Pipalia would further submit that merely because the contentions/objections raised by the petitioners before the Trial Court, which were similar to the objections raised in the execution, were so turned down by the Page 7 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined Trial Court while passing the final decree, would not disentitle the petitioners to raise such objections again while defending the execution. According to learned Advocate Mr. Pipalia, due to an error of law and/or not citing the decision of the Hon'ble Supreme Court of India while passing the final decree, it would not bar the petitioners from raising said legal contentions again in execution.
5.8. Lastly, learned Advocate Mr. Pipalia would submit that the Executing Court is required to consider all objections raised by the petitioner, having the power to decide such objections as per Section 47 of the Civil Procedure Code, 1908 (For short "CPC, 1908"), and when it was pointed out to the Executing Court that the decree in question is not executable in light of the aforesaid provisions of law as well as the law laid down by the Supreme Court of India in the case of Kapadia (supra), the Executing Court could not have rejected the petitioners' objections.
5.9. In support of his submissions, he is also relying upon the following decisions:-
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(i) Pradeep Mehra Vs. Harijivan J. Jethwa (since deceased trhough Lrs.) and others, reported in (2023) (14) SCALE 887; 2023 (0) AIJEL-SC 72721;
(ii) Sunder Dass Vs. Ram Prakash reported in (1977) 1 SCC 662; 1977 (0) AIJEL-SC 30841.
6. No other and further submissions are being made.
7. Point for Determination
(i) Whether, in the facts and circumstances of the case, any illegality, irregularity, and/or any gross error of law was committed by the Executing Court while passing the impugned order, whereby it rejected the objections filed by the petitioners below Exhibit 10 in Special Execution Application No.2 of 2022, or not?
(ii) Whether, in the facts and circumstances of the case, final decree in question is not executable one as prayed by petitioners?
8. ANALYSIS
9. At the outset, it is required to be considered that the present writ application is filed under Article 227 of the Constitution of India, assailing the order impugned in the writ application passed by the Executing Court, whereby it rejected the objections raised by the petitioner. By now, it is a well- settled legal position of law that has been clarified by the Page 9 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined Hon'ble Supreme Court in an umpteen number of its decisions, whereby the scope and ambit of interference by this Court while exercising its power under Article 227 of the Constitution of India is fairly defined. So , I would like to remind myself such scope and power available to this Court while exercising its power under Article 227 of the Constitution of India which is succinctly discussed in following two decisions of Honourable Supreme Court of India.
10. First one in a case of Sameer Suresh Gupta TR PA Holder vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC 374, the relevant observation of the aforesaid judgment reads as under:-
"[6] In our view, the impugned order is liable to be set aside because while deciding the writ petition filed by the respondent the learned Single Judge ignored the limitations of the High Court's jurisdiction under Article 227 of the Constitution. The parameters for exercise of power by the High Court under that Article were considered by the two Judge Bench of this Court in Surya Dev Rai v. Ram Chander Rai and Ors., 2003 6 SCC 675. After considering various facets of the issue, the two Judge Bench culled out the following principles:
(1) Amendment by Act No. 46 of 1999 with effect from 01-07-
2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the Courts subordinate to the High Court, against which remedy of revision has been excluded by the Code of Civil Procedure Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and Page 10 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e. when a subordinate Court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
(ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) A patent error is an error which is self-evident, i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take one view, the error cannot be called gross or patent.
(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Page 11 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate Court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. ( (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
(9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English Courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate Courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate Court as the Court should have made in the facts and circumstances of the case.
7. The same question was considered by another Bench in Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was held: (SCC pp. 347-49, para 49) Page 12 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined "(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by the High Court under these two articles is also different.
(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of superintendence on the High Courts under Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of the Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.
(d) The parameters of interference by High Courts in exercise of their power of superintendence have been repeatedly laid down by this Court. In this regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] and the principles in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh [Waryam Singh v. Amarnath, AIR 1954 SC 215] , followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.
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(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
(i) The High Court's power of superintendence under Article 227 cannot be curtailed by any statute. It has been declared a part of the basic structure of the Constitution by the Constitution Bench of this Court in L. Chandra Kumar v. Union of India [(1997) 3 SCC 261 : 1997 SCC (L&S) 577] and therefore abridgment by a constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised on equitable principle. In an appropriate case, the power can be exercised suo motu.
(l) On a proper appreciation of the wide and unfettered power of the High Court under Article 227, it transpires that the main object of this article is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a Page 14 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined way as it does not bring it into any disrepute. The power of interference under this article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to the High Court.
(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.
(o) An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality."
(Emphasis supplied)
11. The second decision in a case of Garment Craft v. Prakash Chand Goel, reported in (2022) 4 SCC 181, wherein the Hon'ble Supreme Court of India has held as under:-
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a Court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior Court or tribunal. [Celina Coelho Pereira v. Ulhas Page 15 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the Court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior Courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or tribunals. Exercise of this power and interfering with the orders of the Courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate Court or substitute its own judgment in place of that of the subordinate Court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the Court or tribunal has come to."
(Emphasis supplied)
12. Now, keeping in mind the aforesaid limitation to interfere Page 16 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined with the impugned order, the submissions made by learned Advocate Mr. Pipalia are answered and dealt with as follows:
12.1. It remains undisputed that during the lifetime of the original plaintiff, a preliminary decree was passed on 12 th September, 1990, which was challenged by the petitioners herein, but they failed in their attempt as the Division Bench of this Court, vide its judgment and decree dated 20 th January 2001, confirmed the said preliminary decree.
12.2. As per the preliminary decree, which is made available, having been annexed with the present application, indicates that the original plaintiff was entitled to have a ¼ share from the suit properties, i.e., Agricultural lands. It has been further observed in the preliminary decree that as the suit properties are agricultural lands, it is necessary to direct the Collector, Junagadh, to partition the suit properties, i.e., agricultural land, and accordingly, the Revenue Authority, i.e., the Collector, was directed to effect partition in metes and bound. This was done way back in year 1990 and ought to have been observed after dismissal of aforesaid first appeal in Page 17 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined year 2001.
12.3. At this stage, it would be appropriate to refer Section 54 read with Order 20, Rule 18 of the CPC, 1908, which reads as under:-
SECTION 54 OF CPC, 1908
54. Partition of estate or separation of share.--Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.
ORDER 20 RULE 18 OF CPC, 1908
18. Decree in suit for partition of property or separate possession of a share therein.--Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,--
(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.
12.4. In view of the aforesaid provisions of law, once a Page 18 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined preliminary decree is passed by a Trial Court in relation to agricultural land, the actual partition of the agricultural land by metes and bounds and for separate possession of the share in favor of the decree-holder would be undertaken by a Revenue Officer, i.e., the Collector or his appointee, as the case may be, in accordance with law for time being in force. 12.5. The Co-ordinate bench of this Court has also taken view in case of Dinbandhu Dinanath Prajapati Versus Devenbhai Mafatlal Patel reported in 2024 (4) GLR 3074 having so held that the Court having become functus officio cannot entertain any further application against the preliminary decree and set the clock back prior to the preliminary decree. The relevant paragraphs are as under:-
"20. Another issue arises is that can a civil court entertain any such application after sending the preliminary decree for partition of the agricultural land assessed for Land Revenue under Section 54 read with O.20 R.18 of the CPC to the Collector. Section 54 of the CPC reads thus:
54. Partition of estate or separation of share .-
Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in Page 19 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates.
21. Section 54 is parimateria or a reproduction of section 265 of the Code of Civil Procedure, 1882 with a verbal alterations. Where a decree has been passed for partition or for of a share of an estate of the description mentioned in this section, the proper authority to effect partition or to deliver the possession of the share is the Collector. The Court passing preliminary decree in a subject matter which is assessed for payment of land revenue become functus officio. Section 54 does not talk about a final decree. All that is required of a civil court in a case for partition or to deliver possession case for partition of an undivided estate assessed to payment of land revenue of government or for the separate possession of a share in such an estate is to pass a preliminary decree and to declare a right of the party and to give direction for such partition or separation to be made by the collector. Thereafter, the execution is to be effected by the Collector. The civil court, after passing such decree for partition, becomes functus officio and has no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in passing such accordance with preliminary decree but the partition intended to be left to the Collector has some impact upon the revenue and the revenue records.
22. The court after drawing the preliminary decree becomes functus officio in relation to the decree for partition passed by it and all further proceedings for execution of such decree have to be carried out by the concerned revenue officer. The court is prevented fromacting as an executing court for the purpose of execution of decree for partition. Not only, once the preliminary decree is drawn, the rights of the parties are settled, it cannot be unsettled by the same court, allowing the recall application on record. Once becomes functus officio at the most, the civil court can direct the Collector to execute the decree and to make partition if the revenue officer are not proceeding further. The civil court can also act if the petitioner do not want to reopen the decree; but they are expecting the decree as it is and they only want to equity to be settled in their favour.
25. What appears in the present case is that respondent who is non-party to the suit or not a party to the suit, preferred the recall application to the civil court which has passed the preliminary decree with a prayer to recall the preliminary decree. As stated herein above, the civil court after passing the preliminary decree in RCS No.210 of 2012 and sent it for Page 20 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined partition to the Collector in view of Section 54 read with O.20 R.18 of the CPC becomes functus officio, to entertain the application. The trial court has committed serious error not only in entertaining the recall application; but passing status quo order staying its own preliminary decree from the execution which is serious jurisdictional error committed by the court below. The court having become functus officio cannot entertain any further application against the preliminary decree and set the clock back prior to the preliminary decree. Hence, the petition deserves merits."
(emphasis supplied)
13. It would also be apt to refer recent past decision of Honourable Supreme Court in a case of Abdul Rejak Laskar Versus Mafizur Rahman and Others reported in 2024 SCC OnLine SC 3845 wherein held thus:-
"47. In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with Section 54 of CPC. If the Collector takes action in the decree appropriately, the matter will not come back to the court and the court will not have to interfere in the partition, except attending any complaint of an affected third party. While making the partition the Collector is bound by declaration of the rights of the parties in the preliminary decree. But the Court has no power to fetter the discretion of the Collector conferred under the law. However, in regard to any issue on which the Collector is not competent to decide, the civil court will have the power to dispose of. If the Collector disregards the terms of the decree, the Court is entitled to refer the case back to the Collector to re-partition the property. The Collector must actually divide the estate in the manner he thinks best keeping in mind the nature of the land as revenue paying entity and the stipulations of the decree. The object of this provision is two-fold:Page 21 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025
NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined a. First, the revenue authorities are more conversant and better equipped to deal with such matters than a civil court, and;
b. Secondly, the interest of the government in regard to the revenue paying estate would be better safeguarded by the Collector than by the civil court.
51. In the aforesaid context, we looked into one very lucid decision of the High Court of Karnataka in the case of Ramagouda Rudregouda Patil v. Lagmavva,1984 SCCOnline(Kar) 192 explaining the true purport and scope of Section 54 of the CPC read with Order XX Rule 18 of the CPC. We may quote the relevant observations:
"7. It is now a well settled principle of law that in the case of the execution of the decrees pertaining to partition and separate possession of agricultural lands assessed to Revenue, the Civil Court only declares the shares of the parties and the authority concerned has to effect partition or division by metes and bounds, as envisaged by Section 54 of C.P.C. Collector is the authority concerned to effect partition. Once the papers were sent to the collector, the Civil Court has no control over the proceedings taken by the Collector. The Civil Court cannot direct the Collector to effect partition in a particular manner after the papers were sent to him.
Therefore, Section 54 C.P.C. makes it absolutely clear that the execution is not at all contemplated in the case of decrees for partition and division of agricultural lands. What the Civil Court has to do is to transmit the papers to the Collector for actual partition and possession. Therefore, all Execution Petitions are to be filed in the Civil Courts requesting the Court to transmit the papers to the Collector for partition and possession of agricultural lands. They are not, in any sense of the term, execution petitions. They are only in the form of a request to the Court to do its duty as enjoined on it by Section 54 C.P.C. Therefore, the lower Appellate Court rightly held that the execution petitions filed in such cases are only requests or Page 22 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined reminders to the Court to send the papers to the Collector to effect the partition.
xxx xxx xxx
10. Under Section 54 and Order 20 Rule 18 C.P.C. the only duty of the Collector, now called as the Deputy Commissioner, is to effect partition or division by metes and bounds in accordance with law if any for the time being in force, relating to partition or separate possession of shares of such estate. The word 'partition' used in Section 54 or Order 20 Rule 18, in my opinion, means that the partition is not confined to mere division of the lands concerned into the requisite parts, but also includes the delivery of shares to the respective allottees. To elaborate further, the word 'partition' means actual division or partition by metes and bounds and handing over possession of the shares to the parties.
xxx xxx xxx
15. Sri Ujjannavar then urged that a decree passed in a partition suit was not a preliminary decree and it amounts to saying that the decree has become final. It is no doubt true that it has been held by this Court in the decision in Ganapatrao Raojirao Desai v. Balvant Krishnaji Desai,1965 2 MysLJ 768 that:
"A decree passed under R. 18(1) of Or. XX directing partition by the Collector cannot be said to be a preliminary decree. So far as the Civil Courts are concerned it is final for all purposes, though the partition of the property may remain to be effected by the Collector. Sub-rule (1) of Rule 18 does not contemplate any application to be filed by the parties for sending the papers to the Collector."
The purport of the said expression used by this Court is that though it cannot be said to be a preliminary decree, it became final for all purposes so far as the Civil Courts are concerned. Once a Page 23 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined decree declaring the shares of the parties is passed by the Civil Court, it has nothing more to do. It means that the case has come to an end in the Civil Court and it does not amount a final decree. Therefore, it cannot be considered to be a final decree as understood in the Civil Procedure Code. Therefore, the argument of Learned Counsel Sri Ujjannavar that in the case of a final decree the limitation would begin to run, holds no substance and it is rejected."
(Emphasis supplied) 13.1. Thus, in view of the aforesaid clear pronouncement, once a preliminary decree in relation to an agricultural land is passed by the Trial Court, it becomes functus officio, more so when it has been final having confirmed in first appeal being dismissed by division bench of this Court. 13.2. This Court, during the course of argument, put a query to learned Advocate Mr. Pipalia as to what was the position of law that stood when the preliminary decree was passed and confirmed by the Division Bench of this Court while dismissing the appeal of the petitioners on 20 th January 2001, so far as receiving an agricultural land by legal representatives of a deceased, who are not agriculturists, having received the benefit under the Will of a deceased Page 24 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined agriculturist.
13.3. Learned Advocate Mr. Pipalia fairly conceded and submitted that when the Division Bench of this Court confirmed the preliminary decree in the year 2001, as per a judgment of this Court reported in Ghanshyambhai Nabheram Vs. State Of Gujarat, reported in 1999 (2) GLR 1061, a non- agriculturist, who happens to be a legal representative by virtue of the Will of a deceased agriculturist, could receive an agricultural land.
13.4. It is not in dispute that the respondent herein was joined in the appeal proceedings and the law stood, as on the date of the passing of the judgment whereby the preliminary decree was confirmed by the Division Bench of this Court, that benefit derived from the decree was made available to the legal representatives of the deceased plaintiff, including the respondent herein.
13.5. Having so observed the said facts and the position of law that stood as on the date of confirmation of the preliminary decree, the legal representatives of the deceased- Page 25 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025
NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined plaintiff were entitled to receive the benefits flowing from the preliminary decree, i.e., a ¼ share in the suit lands, i.e., agricultural land. Furthermore, close reading of S. 54 of CPC would also obligate revenue authority to obey such preliminary decree which was passed in accordance with law for time being in force.
14. Thus, the submissions made by learned Counsel Mr. Pipalia, by placing reliance upon the Full Bench decision of the Hon'ble Supreme Court in the case of Kapadia (supra), are turned down, as such said decision came two decades later in point of time after confirming preliminary decree by the Division Bench of this Court in year 2001.
15. It is a well-settled legal position of law that when an issue, once decided between the parties and the decree having been confirmed in appeal, attains its finality, such issue cannot be reopened by a party due to any change of a subsequent judgment of the Hon'ble Apex Court explaining the position of law.
16. It is settled legal position of law that any subsequent Page 26 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined pronouncement of law by Hon'ble Supreme Court would not ipso facto apply between the parties if their disputes have been already decided by the higher court prior to such pronouncement of law. It would be apt to refer and rely upon a decision of Hono'ble Supreme Court of India in a case of Rangarao V/S Kamlakant reported in 1995 Supp (1) SCC 271 wherein held thus:
"[2] The date of the decree is 3/1/1985. Thereafter, what had happened is a notification exempting certain categories of buildings from the purview of C. P. and Berar Letting of Houses and Rent Control Order, 1949 issued under clause 30 of the said order came to be struck down on the ground that it was violative of Article 14 of the Constitution. This decision was rendered on 9/6/1985. When the decree was sought to be executed, the tenant albeit the compromise raised an objection that the decree became unexecutable since the civil court had lost jurisdiction to pass an order of eviction in view of the decision. That objection was overruled by the court of first instance and the court of appeal. Thereafter, when the matter went up to the High court, this objection of the judgment-debtor was sustained. Hence, the Civil Appeal.
[5] On our careful consideration, we find that the appellant is entitled to succeed. It is undeniable that on the date when the compromise memo fruitioned into a decree on 3/1/1985, the civil court had every jurisdiction to pass such a decree. It is true the notification issued under clause 30 of C. P. and Berar Letting of Houses and Rent Control Order, 1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19-6-1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3/1/1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (Legislature as well). The courts do not have such power. If that be so, the High court had clearly gone wrong in holding that the decree on the date of Page 27 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined execution is a nullity. As correctly contended by Mr Sanghi, learned counsel for the appellant, the jurisdiction will have to be decided on the date of the decree namely, 3/1/1985. On that date undoubtedly it had every jurisdiction. Therefore, we hold that the High court fell into an error in upsetting the concurrent findings of the courts below. Accordingly, we set aside the judgment of the High court and allow the Civil. There shall be no order as to costs."
(emphasis supplied)
17. Furthermore, the present execution is filed by the respondent seeking only mesne profit and not execution for any possession of the suit land, i.e., an agricultural land and or direction to be issued to Collector for affect actual partition, as by way of the preliminary decree, the partition of the agricultural land would have to be undertaken by the Revenue Authority. Now, as per the aforesaid position of law, and once the Trial Court has become functus officio in that regard, such objections about a non-executable decree in relation to agricultural land are not only misconceived but also dilatory tactics on the part of the judgment-debtors to avoid the legitimate claim to be received by the judgment-creditor to get the fruits of the decree. More so, when such decree becomes final and having raised such objection prior to passing final decree was also turn down.
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NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined
18. The Executing Court, while passing the impugned order, has considered and as such reproduced the order dated 30 th January, 2020 passed by the Trial Court passed below Exhibit 181 in Special Civil Suit no.41 of 1989, whereby the objections which are so raised below Exhibit 10 (impugned one) in the execution application were already raised albeit, turned down and rejected by Trial Court while passing final decree. The Executing Court, in para-3 of the impugned order, has in fact reproduced the relevant portion of the aforesaid order dated 30th January 2020 passed below Exhibit-181 in the aforesaid suit.
19. It appears from the bare reading of the portion of said order dated 30th January, 2020 (although not made available to this Court but reproduced in impugned order), which would suggest that the objections, which are so raised below Exhibit 10 in the execution application by the petitioners, were already raised before the Trial Court prior to the passing of the final decree, and after the hearing of all the parties, such objections were turned down, whereby the Trial Court rejected the Page 29 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined application of the petitioners filed below Exhibit 181 in the aforesaid suit.
20. Even though having lost in their objections raised during the pendency of the suit, not questioning the final decree passed by the Trial Court in appeal, and also having filed Special Civil Suit No.19 of 2022 whereby the Will of the deceased-plaintiff is now challenged, for the first time, they tried to raise such objections again, whereby an attempt was made by the petitioners to derail the execution further and an attempt was made to deprive the judgment-creditor from realizing the fruits of the decree by raising the impugned objections below Exhibit 10 in the execution.
21. When the Executing Court, taking note of the aforesaid facts and circumstances of the case and having notice that the mesne profit was already decided as per the Court Commissioner's report of the year 1992, which was never questioned by the petitioners, the Executing Court felt itself having bound by the final decree which is required to be executed so far as the mesne profit is concerned, then turned Page 30 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined down the objections of the petitioners. In light of aforesaid, I am of the view that no illegality, irregularity, and/or any gross error of law was committed by Executing Court while rejecting objections of petitioners.
22. There is no cavil that the Executing Court under Section 47 of the CPC has power to decide objections, but at the same time, it is well settled that it cannot travel beyond the decree. As pointed out hereinbefore, when the preliminary decree was passed and confirmed, there was no illegality in passing such a decree, as the position of law that stood as on that day allowed a non-agriculturist to receive a benefit under Will or the decree as the case may be whereby an agricultural land may be received by him, though legal representative of the decree-holder may be a non-agriculturist.
23. So, in view of aforesaid, submissions made by learned advocate Mr. Pipaliya are not acceptable but requires outright rejection whereby, it is held that final decree, so far as granting mesne profit is concerned, is executable one.
24. In light of the aforesaid facts and circumstances of the Page 31 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined case and having not found any gross illegality, irregularity, perversity, and/or any erroneous reasoning on the part of the Trial Court while passing the impugned order, and applying the ratio of the decisions of the Hon'ble Supreme Court and so also of this Court in above referred cases including of Sameer Suresh Gupta (supra) and Garment Craft (supra) to the facts of the present case, I am of the view that no interference is required by this Court while exercising its jurisdiction under Article 227 of the Constitution of India.
25. As this Court has not found any merits in the application, but rather feels that the petitioners have tried to derail the execution by not allowing the judgment-creditor to realize the fruits of the decree, by not only consuming the time of the Trial Court before the passing of the decree but also of the Executing Court by again raising similar objections and so also of this Court, the present writ application requires to be dismissed with costs.
CONCLUSION
26. The upshot of the aforesaid observations, discussions, and Page 32 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined reasons, would lead to only one conclusion that present writ application, lacking merits, requires to be rejected.
27. The order impugned in present writ application is neither suffers from any illegality, irregularity nor erroneous nor perverse and not even found to be passed contrary to any provisions of law.
28. Further, final decree passed by Trial Court sought to be executed by way of execution at instance of respondent is executable one in accordance with law.
29. Consequently, present writ application is hereby REJECTED with costs of Rs.50,000/-. Notice is discharged.
30. The petitioners herein are hereby directed to deposit costs of Rs.50,000/- with the District Legal Services Authority, Veraval, District Gir Somnath, within a period of two weeks from the date of receipt of the copy of this order.
31. The Executing Court is requested to see the compliance of the costs to be deposited by the petitioners-opponents- objectors to the execution petition.
32. At last, Executing Court is also advice to adjudicate and Page 33 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025 NEUTRAL CITATION C/SCA/7239/2025 JUDGMENT DATED: 13/06/2025 undefined dispose of execution at earliest preferably within 3 months from date of receipt of copy of this order as filed in year 2022. [See - Rahul S. Shah V/s Jinendra Kumar Gandhi (2021) 6 SCC 418 and Periyammal (dead) through LRS V/s Rajamni reported in 2025 SCC Online SC 507] (MAULIK J.SHELAT,J) MOHD MONIS Page 34 of 34 Uploaded by MOHD MONIS(HC01900) on Wed Jun 18 2025 Downloaded on : Wed Jun 18 21:32:17 IST 2025