Gujarat High Court
Thakorbhai Somabhai Patel vs State Of Gujarat & on 9 May, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/14901/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14901 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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THAKORBHAI SOMABHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RA PATEL, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MAHETA, AGP for the Respondent(s) No. 1
PARTY-IN-PERSON, ADVOCATE for the Respondent(s) No. 2
RULE NOT RECD BACK for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/05/2014
Page 1 of 57
C/SCA/14901/2011 CAV JUDGMENT
CAV JUDGMENT
1. By preferring the present petition, the petitioner has prayed to direct respondent No.1 to handover the possession of the agricultural land bearing Survey No.2415/2, Final Plot No.432, admeasuring 0 Acre and 16 Gunthas of village Anand, District Anand, after evicting respondent No.2 from the disputed land in question and further prayed to restrain respondent No.2 or their servants, agents, attorney from alienating, transferring or in any way putting third party in possession of the said agricultural land, to any other person or persons authority or institution.
2. Brief facts, leading to the filing of the present petition, are as under:-
2.1 It is the case of the petitioner that one Rameshbhai Dahyabhai Patel, heir of Dahyabhai Hathibhai Patel was the owner of the land bearing Survey No.2415/2, of village Anand, District Anand. The said land was cultivated by father of the petitioner viz. Somabhai M.Patel as a tenant Page 2 of 57 C/SCA/14901/2011 CAV JUDGMENT much before 1950, his name was also introduced as a tenant under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 ("the Act" for short). One Ravjibhai Mathurbhai Solanki wrongly held himself as tenant in the year 1980 and Mamltadar and ALT, Anand also issued a certificate of purchase in his name. Said Ravjibhai Mathurbhai Solanki entered into an agreement to sell with two different persons and sold the said land in the year 1982. Accordingly, the said purchasers filed two separate Suits and thereafter, two First Appeals were also filed before this Court, where the petitioner was not party, which came to be disposed of on 04.09.2003. During the pendency of the suit, the petitioner applied for his tenancy rights by filing Tenancy Case No.63 of 1990 under Section 32G of the Act against the original landlord and said Ravjibhai Mathurbhai Solanki. The Mamlatdar & ALT, Anand vide judgment and order dated 30.07.1994 passed in Tenancy Case No.63 of 1990, declared the petitioner as "tenant" of the Page 3 of 57 C/SCA/14901/2011 CAV JUDGMENT disputed land and dismissed the claim of Ravjibhai Mathurbhai Solanki. The Talati accordingly, mutated entry No.50452 on 24.08.1994.
2.2 Said Ravjibhai Mathurbhai Solanki filed Tenancy Appeal No.7 of 1995, which was finally withdrawn on 07.04.1997. As soon as the petitioner came to know about the proceedings before this Court, he had preferred an application being Civil Application No.379 of 1995 for joining party to the said proceedings, which came to be dismissed by an order dated 22.02.1995 holding that the petitioner is not necessary party to the proceedings. 2.3 It is further case of the petitioner that the Panchnama was prepared and possession was handed over to the petitioner in presence of the panchas and Talati and possession receipt was also issued by said Ravjibhai Mathurbhai Solanki and the original landlord on 04.08.1997.
Thereafter, the Mamlatdar & ALT. Anand by order Page 4 of 57 C/SCA/14901/2011 CAV JUDGMENT dated 14.07.1998, passed in Tenancy Case No.99 of 1997, had fixed the purchase price of the disputed land and issued purchase certificate in favour of the petitioner on 11.08.1997 and said entry was mutated in revenue record in the name of petitioner by mutation entry No.57148 on 14.08.1997.
2.4 Before respondent No.2 could receive possession from said Ravjibhai Mathurbhai Solanki, said Ravjibhai Mathurbhai Solanki expired on 20.07.1998 and therefore, the respondents with the help of Talati and with ulterior motive, had applied for entering his name by virtue of 'Will" of said Ravjibhai Mathurbhai Solanki and mutated name in revenue record vide Entry No.60276 on 24.11.1998, where said Ravjibhai Mathurbhai Solanki was not in possession. Thereafter, respondent No.2 applied for possession from the heirs of said Ravjibhai Mathurbhai Solanki by way of execution proceeding before learned Civil Judge, wherein, learned Civil Judge passed an order for possession from Page 5 of 57 C/SCA/14901/2011 CAV JUDGMENT deceased-Ravjibhai Mathurbhai Solanki and not from the petitioner, as the petitioner was not party to the said proceeding. Then, respondent with the help of Village Talati, Anand, obtained possession and mutated his name in revenue record vide entry No.63112 on 03.12.1999. The said exercise was done without deciding the matter by the Mamlatdar, against which, the petitioner raised objections that he has not heard. 2.5 Against the order passed in Tenancy Case No.99 of 1997, the respondent filed Tenancy Appeal No.84 of 1998 before the District Collector, Anand, which was remanded to the Mamlatdar & ALT, Anand by the District Collector, Anand vide order dated 13.10.1998 for fixing the purchase price after hearing both the parties. After remand of the matter, the Mamlatdar & ALT, Anand vide order dated 19.10.2000 passed in Tenancy Case No.99 of 1999, held that as the petitioner is not in possession, the purchase price under Section 32G of the Act cannot be fixed and directed the petitioner to have the Page 6 of 57 C/SCA/14901/2011 CAV JUDGMENT possession under Section 84 of the Act. Accordingly, the petitioner applied for possession by preferring an application under Section 84 of the Act, which was rejected in Case No.TNC/Tenancy Act/Sec.84/Case No.2 of 03/04, vide order dated 29.10.2004 on the ground that the matter is sub-judice.
2.6 Being aggrieved and dissatisfied with the said order of the Deputy Collector, the petitioner preferred Revision Application No.TEN/BA/42/2005 before the Gujarat Revenue Tribunal, which came to be dismissed vide order dated 20.09.2011 without discussing any of the evidence and without giving any reasons. Hence, this petition.
3. Heard learned advocate Mr.R.A.Patel for the petitioner, learned AGP Mr.Manan Maheta for respondent No.1 and respondent No.2 - Ismailbhai Gafurbhai Vohra - Party-in-person.
4. Learned advocate Mr.R.A.Patel for the Page 7 of 57 C/SCA/14901/2011 CAV JUDGMENT petitioner has submitted that Ravjibhai Mathurbhai Solanki has preferred Tenancy Case No.240 of 1981 by his own in which the present petitioner was not party and said Ravjibhai Mathurbhai Solanki has preferred the said Tenancy Case against the original owner i.e. against Dahyabhai Hathibhai Patel and the final order passed in Tenancy Case No.240 of 1981 was challenged by the petitioner herein by preferring Tenancy Appeal No.150 of 1988 and accordingly, the matter was remanded vide order dated 31.7.1989 by the Deputy Collector.
4.1 The petitioner herein has then preferred Tenancy Case No.63 of 1990 against legal heirs of Dayhabhai Hathibhai Patel and others and the Mamlatdar and ALT, Anand in Tenancy Case No.63 of 1990, declared the petitioner as the "tenant" of the disputed land and the claim of Ravjibhai Mathurbhai Solanki was dismissed by its judgment and order dated 30.7.1994, copy of the order is at page Nos.141 to 148.
Page 8 of 57 C/SCA/14901/2011 CAV JUDGMENT 4.2 It is pertinent to note at this juncture that as per the submission made by learned advocate for the petitioner, Tenancy Appeal No.7 of 1995 was preferred by Ravjibhai Mathurbhai Solanki and challenged the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 referred above as averred in paragraph No.2.3 of the petition which was finally withdrawn on 7.4.1997. 4.3 Respondent No.2 herein has preferred Tenancy Appeal No.84 of 1998 against the order passed in Tenancy Case No.99 of 1997 which was decided on 14.7.1998. In the said Tenancy Appeal No.84 of 1998, the petitioner herein was also joined as party. Learned advocate Mr.Patel has further submitted that in spite of the fact that the petitioner herein was joined as party, no notice was served on the petitioner and accordingly, the petitioner was not served and the said Tenancy Appeal No.84 of 1998 was decided on 13.10.1998 and it was partly allowed and the order related to fixing of price, more Page 9 of 57 C/SCA/14901/2011 CAV JUDGMENT particularly, Rs.1036/- was set aside but while passing the said order, nothing has been decided so far as the possession of the present petition is concerned which according to the petitioner he has received on 4.8.1997. It is pertinent to note that copy of the order dated 13.10.1998 passed in Tenancy Appeal No.84 of 1998 has not been produced by the petitioner nor any effort has been made by him to show that no notice was served on the petitioner in the said Tenancy Appeal No.84 of 1998. It is also important to note that in paragraph 2.9 of the petition, it is averred that after hearing both the parties, by its order dated 13.10.1998, the District Collector had remanded the matter to Mamlatdar and ALT, Anand. Thereafter, the petitioner herein has preferred Tenancy Case No.99 of 1999 in light of the order dated 13.10.1998 passed in Tenancy Appeal No.84 of 1998 and the same was filed against the heirs of Ravjibhai Mathurbhai as well as original owner and respondent No.2 herein. After the order dated 19.10.2000 passed in Page 10 of 57 C/SCA/14901/2011 CAV JUDGMENT Tenancy Case No.99 of 1999, the petitioner herein has preferred Tenancy Case No.2/03-04 under section 84 of the Tenancy act for seeking possession and vide order dated 30.9.2004, the said application was dismissed. Against that, the petitioner herein has preferred Revision Application No.42 of 2005 before the Gujarat Revenue Tribunal which has been decided on 20.9.2011 against the present petitioner and accordingly, the petitioner herein has preferred the present petition challenging the orders at pages 28 and 35 respectively order dated 29.10.2004 passed by Deputy Collector, Anand and order dated 20.9.2011 passed by the Gujarat Revenue Tribunal, as referred above.
5. On the other-hand, drawing attention of this Court on the prayer 6-B at page 13 of the petition, learned AGP Mr.Manan Maheta raised the question of maintainability of the petition which is admittedly filed under Article 227 of the Constitution of India. He further submitted that Page 11 of 57 C/SCA/14901/2011 CAV JUDGMENT admittedly, the civil suit and other proceedings are pending before the Civil Court and though prayer is made against the State Government to hand over possession of the land, however, before the Tribunal, the State Government was not party. Therefore, in his submission, in view of pendency of the proceedings before the Civil Court, the prayer as sought by the petitioner in the present petition cannot be granted against the State Government. Lastly, he requested to dismiss the petition.
6. Party-in-person - respondent No.2 has drawn attention of this Court on page Nos.42 to 47 which is the copy of the affidavit-in-reply filed by him in this petition and on the documents referred in it and page Nos.55 to 59, copy of affidavit-in-reply filed by him in Civil Application No.379 of 1995 in First Appeal No.889 of 1984 and written legal submissions dated 12.2.2014 filed by him which is at page Nos.159 to 161 as well as the page Nos.99 to 128, copy of Page 12 of 57 C/SCA/14901/2011 CAV JUDGMENT reported decision in the case of Ravjibhai Mathurbhai Solanki (Decd) through his heirs and Lrs Vs. Bijalbhai Devjibhai Prajapati, reported in 2003(3) GLR 2563. I have carefully gone through the same and I will cover the submissions during the course of discussion of the issue involved in this case.
7. I have considered the above referred submissions made by learned advocate for the petitioner, learned AGP for respondent No.1 as well as by Party-in-Person - respondent No.2 in light of the case law on which they have placed reliance. The prayers sought for by the petitioner in paragraph 6 of the petition read as under.
"6. (A) xxxx xxxx xxxx (B) To direct the Respondent-Authority No:1, to hand over possession of the Agricultural land bearing S.No:2415/2;
F.P.No: 432, admeasuring A:0-16:G of Village Anand, Dist : Anand, after Page 13 of 57 C/SCA/14901/2011 CAV JUDGMENT evicting the respondent No:2; from the disputed land, FORTHWITH;
(C) Pending hearing and final disposal of this petition, restrain the respondent or their servants, agents, attorney from alienating, transferring or in any way putting third party in possession of the Agricultural land bearing S.No:2415/2; F.P.No:432, admeasuring A:0-16:G of Village Anand, Dist : Anand, to any other person or persons, authority or institution in any manner what so ever;
(D) xxxx xxxx
xxxx"
8. It has been vehemently submitted by
learned advocate for the petitioner that the
orders passed by the authorities below are
erroneous, null and void inasmuch as the Tenancy Act is a beneficiary legislation and statute for special class of people and therefore, the authority has to pass an order in favour of the tenant and against the landlord or the third party. The object of the Act must be fulfilled Page 14 of 57 C/SCA/14901/2011 CAV JUDGMENT by putting the tenant in possession of the land in question. On this point, learned advocate for the petitioner has placed reliance on the following citations.
(i) "Hathisinh Madhavsinh Vs Amarsinh Parvatsinh, 1994(1) GCD 416 = 1994(2) GLH 417." Paragraph 5 of the said citation reads as under.
"5. It is a settled principle of law that no party can be penalised by inaction or omission or default on the part of any authority or governmental machinery. The Mamlatdar at Waghodia was certainly a governmental authority. He ought to have transmitted the undertaking at Annexure-A to this petition to his counterpart at Dabhoi for the latter's necessary action. If the Mamlatdar at Waghodia was at a loss to understand why the undertaking at Annexure-A was filed it before him, he ought to have summoned the petitioner and to have ascertained from him the purpose of filing it before him. Nothing of the sort appears to have been done. The Mamlatdar at Waghodia appears to have kept the undertaking at Annexure-A Page 15 of 57 C/SCA/14901/2011 CAV JUDGMENT to this petition as a mere piece of paper presumably worth nothing. This approach and attitude on the part of the said governmental authority has resulted in adding to the present petitioner's miseries and woes. The first authority presumably remained ignorant of the filing of the affidavit at Annexure-A to this petition. As transpiring from the order at Annexure-B to this petition, a reminder to the petitioner appears to have been conveyed through the Mamlatdar at Waghodia regarding filing of the necessary undertaking. In fact, that reminder ought to have stirred the Mamlatdar at Waghodia to action with respect to the undertaking at Annexure-A to this petition. It appears that he remained unmoved even at that stage. I have no words to condemn such inaction or omission on the part of that authority. The unfortunate sufferer thereof and thereby is the present petitioner."
(ii) "Babu Parasu Kaikadi (Dead) By L.Rs. Vs Babu (Dead) by L.Rs., 2003 AIR SCW 6923." Paragraph 7 of the said citation reads as under.
Page 16 of 57 C/SCA/14901/2011 CAV JUDGMENT
"7. Section 29 of the Act, as noticed hereinbefore, postulates taking over of possession by the landlord from the tenant only in accordance with procedure prescribed therefor. In the event, the surrender made by the predecessor-in- interest of the appellant in favour of the respondent is found to be invalid; the possession thereof obtained by the later pursuant to or in furtherance thereof shall also be invalid. In such an event, although the landlord takes a physical possession of the land, the right to possess the same remains with the tenant. He could recover possession of the said land in accordance with law. The said Act is a beneficent statute. It should be construed in favour of the tenant and against the landlord. The protection given to the tenant in terms of the said Act must be given full effect. So construed, the expression 'possession' would also include right of possession. The view which we have taken is fortified by the decisions of this Court in Ramchandra Keshav Adke (dead) by Lrs. and others v. Govind Joti Chavare and others ((1975) 1 SCC 559), Bhagwant Pundalik and another v. Kishan Page 17 of 57 C/SCA/14901/2011 CAV JUDGMENT Ganpat Bharaskal and others ((1971) 1 SCC 15) and in Abdul Ajij Shaikh Jumma and another v. Dashrath Indas Nhavi and others (AIR 1987 SC 1626) and this the consistent view had been that the surrender by the tenant for being legal must be in conformity with the provisions contained in Sections 15 and 29 of the Act."
8.1 Learned advocate for the petitioner has then submitted that learned Tribunal fails in its duty to find out as to how the tenant lost possession though once the tenant was in possession. It is pertinent to note at this juncture that one Ravjibhai Mathurbhai Solanki has preferred Tenancy Case No.240 of 1981 by his own in which the petitioner herein was not the party and said Ravjibhai Mathurbhai Solanki had preferred the said case against the original owner i.e. against Dahyabhai Hathibhai Patel and the final order dated 5.5.1981 passed in the said Tenancy case No.240 of 1981 was challenged by the petitioner by preferring Tenancy Appeal No.150 of 1988 and accordingly, the said appeal was partly Page 18 of 57 C/SCA/14901/2011 CAV JUDGMENT allowed and it was remanded vide order dated 31.7.1989 passed by the Deputy Collector. It is pertinent to note that the said order dated 5.5.1981 passed in Tenancy Case No.240 of 1981 has not been forthcoming on record. Referring to the copy of the order dated 30.7.1994 passed by the Mamlatdar and ALT in Tenancy Case No.63 of 1990 at page Nos.141 to 148, it appears that on one side, tenants i.e. (1) present heir of deceased Mohanbhai Nathabhai - Ravjibhai Mathurbhai Solanki and (2) Heir of Somabhai Mangalbhai - Thakorbhai Somabhai are shown and on the other-side, i.e. versus landlord - heir of Dahyabhai Hathibhai - Rameshbhai Dahyabhai is shown and it was initiated under section 32-G of the Tenancy Act. It is also observed that in column of second rights, name of Mohan Natha was there and in his place, name of his widow Bai Mangu was inserted and also observed that original landlord Dahyabhai had sold the land in question to the President of Ramkrishna Cooperative Society and as landlord, the name of Page 19 of 57 C/SCA/14901/2011 CAV JUDGMENT Ramkrishna Cooperative Society was inserted and as heir or Bai Mangu, name of Ravjibhai Mathurbhai was inserted as tenant. Under the circumstances, the name of Somabhai Mangalbhai which was there as general tenant in column of second rights, the Mamlatdar and ALT has not considered the same and in Tenancy Case No.240 of 1981, the purchase price of the land in question in favour of Ravjibhai Mathurbhai was fixed. Ultimately, vide order dated 30.7.1994 referred hereinabove passed in Tenancy Case No.63 of 1990, the Mamlatdar and ALT had declared the petitioner as tenant of the land in question. Before proceeding further, it is pertinent to note that this Ravjibhai Mathurbhai Solanki and Gaguji Mathurbhai Solanki who were brothers had negotiated with respondent No.2 and others for the sale of land in question as well as other land as mentioned in above referred reported decision in the case of Ravjibhai Mathurbhai Solanki (Decd) through his heirs & Lrs (supra) executed agreement to sell on 24.3.1980 in the Page 20 of 57 C/SCA/14901/2011 CAV JUDGMENT capacity of tenant / landlord of the land in question for which respondent No.2 and others later on filed Special Civil Suit No.15 of 1982 which was allowed and decree of specific performance was passed against Ravjibhai and others in which the petitioner herein was not the party naturally because he has challenged the tenancy proceedings i.e. Tenancy Case No.240 of 1981 which was granted in favour of Ravjibhai in the year 1988 preferring Tenancy Appeal No.150 of 1988 as referred above. It is also important to note at this juncture that First Appeal No.889 of 1984 preferred by Ravjibhai Mathurbhai Solanki through his heirs and legal representatives was dismissed by this Court, the decision which has been reported in the case of Ravjibhai Mathurbhai Solanki (Decd) through his heirs & Lrs (supra) as referred above. It is also to be noted that learned advocate Mr.R.A.Patel for the petitioner herein was also the advocate of Shri Ravjibhai Mathurbhai Solanki who had preferred First Appeal No.889 of 1984, as referred above. The judgment Page 21 of 57 C/SCA/14901/2011 CAV JUDGMENT and order passed in said First Appeal and other proceedings vide order dated 4.9.2003 was challenged by Bhupendrabhai Jashbhai Patel and others by preferring Special Leave to Appeal (Civil) No.20962 - 20963 of 2003 and upon hearing counsel said, SLPs were dismissed vide order dated 21.11.2003. Thus, the decree passed in favour of respondent No.2 in Special Civil Suit No.15 of 1982 had attained finality and it is not in dispute that vide order dated 13.8.2010 in Special Civil Application No.8935 of 2010 as well as vide 'Kabja Pavti' dated 29.8.2010 at page 130, the possession of the land in question has been received by respondent No.2 herein through the Court Commissioner, Anand.
8.2 As referred above, vide order dated 30.7.1994 passed in Tenancy Case No.63 of 1990, the Mamlatdar and ALT had declared the petitioner as tenant of the land in question. It is the case of the petitioner that Talati accordingly mutated entry No.50542 dated 24.8.1994 about the Page 22 of 57 C/SCA/14901/2011 CAV JUDGMENT said order, copy of which is at page 15. Nothing has been submitted by learned advocate for the petitioner whether the said entry No.50542 was certified at any point of time and if yes, on which date. Referring to copy of entry No.50542 at page 15, the relevant last column appears blank. It is also the case of the petitioner which learned advocate for the petitioner has vehemently submitted that the order dated 30.7.1994 passed by Mamlatdar and ALT in Tenancy Case No.63 of 1990 was challenged by said Ravjibhai Mathurbhai Solanki by preferring Appeal No.7 of 1995 which was finally withdrawn on 7.4.1997. Drawing attention of this Court to page Nos.16 and 17, learned advocate for the petitioner has submitted that panchnama was prepared and possession was handed over to the petitioner in the presence of panchas and Talati and possession receipt was also issued by said Ravjibhai Mathurbhai Solanki and the original landlord on 4.8.1997. It has also been submitted by learned advocate for the petitioner, as Page 23 of 57 C/SCA/14901/2011 CAV JUDGMENT referred hereinabove, that the Mamlatdar and ALT, Anand vide order dated 14.7.1998 passed in Tenancy Case No.99 of 1997 had fixed the purchase price of the disputed land and issued purchase certificate in favour of the petitioner on 11.8.1997 and said entry was mutated in the revenue record in the name of the petitioner by mutation entry No.57148 on 14.8.1997. By making the above referred submissions, learned advocate for the petitioner has argued that orders passed by the authorities below are erroneous, null and void inasmuch as the Tribunal has failed in its duty to find out as to how the tenant lost possession though once the tenant was in possession. Learned advocate for the petitioner has then submitted that when it is the case of the petitioner - tenant that respondent No.2 is in unauthorized possession of the land, it is the duty of the authority to find out as to how the tenant was dispossessed and how respondent No.2 entered in possession and it cannot be suffice to say that some proceedings are pending in some Page 24 of 57 C/SCA/14901/2011 CAV JUDGMENT Courts and therefore, the matter is sub-judice. Lastly, on this point, learned advocate for the petitioner has vehemently submitted that it is the duty of the concerned authority to find out as to whether the tenant - petitioner herein involved in the said civil proceeding or that any order has been passed against the tenant - petitioner herein handing over possession of the land and if there is no such order or any observation in any order, the tenant ought to have put to possession for which the present petition has been filed. Before discussing the above point which according to learned advocate for the petitioner is very vital, certain important facts related to said point deserves consideration for proper adjudication of the said points raised by learned advocate for the petitioner, as referred above.
8.3 Considering the above submissions, first of all, how the tenant - petitioner herein had alleged to have acquired possession of land in Page 25 of 57 C/SCA/14901/2011 CAV JUDGMENT question is required to be considered in light of the documents forthcoming on record. As referred above, according to the submissions made by learned advocate for the petitioner, Ravjibhai Mathurbhai Solanki had filed Tenancy Appeal No.7 of 1995 which was finally withdrawn by him on 7.4.1997 and so the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 had attained finality and as discussed above, Ravjibhai Mathurbhai and landlord had handed over possession vide 'Kabja Pavti' at page 16 and vide panchnama at page 17 both dated 4.8.1997. During the course of his submissions, when this Court has tried to enter into the averments of 'Kabja Pavti' dated 4.8.1997 at page 16, learned advocate for the petitioner has categorically submitted that while drawing attention of the court on said 'Kabja Pavti' he wants to show that the petitioner was put in possession of the land in question but so far as the rest of the averments of said 'Kabja Pavti' are concerned, he is not putting much reliance on the same, but Page 26 of 57 C/SCA/14901/2011 CAV JUDGMENT mainly he wants to show that the petitioner was in possession of the disputed land by way of Court's order. In light of the above submission, if we perused notice dated 20.12.1999 issued by advocate Mr.Rasiklal A.Patel, under instructions of present petitioner, addressed to the Mamlatdar, Anand, copy of which has been forwarded to the District Collector as well as the Secretary, Revenue Department, it is specifically averred as under.
"....That the original tenant of the disputed land was one Somabhai Mangalbhai Patel of Anand and therefore a proceeding under 32-G was started wherein the Mamlatdar and ALT, Anand has declared Heirs of Somabhai M.Patel as tenant and set aside the order passed in favour of Ravajibhai M.Solanki who was previously held to be the tenant of the land. The said order was again challenged by said Ravjibhai M.Solanki before the Dy.Collector, by way of an appeal, which was also dismissed and the original Tenant, Somabhai was finally held to be the tenant - purchaser of the Page 27 of 57 C/SCA/14901/2011 CAV JUDGMENT land." (Emphasis supplied).
It is pertinent to note that as per the oral submissions made by learned advocate for the petitioner, Ravjibhai Mathurbhai Solanki has filed Tenancy Appeal No.7 of 1995 which was finally withdrawn by him on 7.4.1997 and accordingly, the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 by which the petitioner was declared tenant has attained finality. From the above referred averments of the notice dated 20.12.1999, the petitioner and his advocate both have put different story so far as the appeal which was filed before the Deputy Collector is concerned. In the said notice, both have averred that the appeal filed by Ravjibhai M.Solanki was also dismissed and the petitioner was finally held to be the tenant - purchaser of the land for the reasons best known to him. This action of preferring the appeal taken by Ravjibhai Mathurbhai Solanki is also required to be perused further in light of the documents related to the same forthcoming on record of this Page 28 of 57 C/SCA/14901/2011 CAV JUDGMENT petition. During the course of submissions, learned advocate for the petitioner has, all the times, submitted that judgment and order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 by the Mamlatdar and ALT, Anand by which the petitioner has been declared tenant of the land in question dismissing the claim of Ravjibhai Mathurbhai Solanki and the said judgment and order was challenged by Ravjibhai Mathurbhai Solanki by preferring Tenancy Appeal No.7 of 1995 which was finally withdrawn on 7.4.1997. Simple typed copy of the said order produced by the petitioner is at pages 149 and 150 appears the order passed by the Deputy Collector (Land Reforms) Appeals, Kheda. Referring to the title of the said withdrawal order of the appeal alleged to have been filed by Ravjibhai Mathurbhai Solanki, it appears that Tenancy Appeal No.7 of 1995 was, in fact, filed by Muljibhai Khodabhai Parmar, resident of Dabhasi, Taluka Borsad, District Kheda as power of attorney holder of Solanki Ravjibhai Mathurbhai - Page 29 of 57 C/SCA/14901/2011 CAV JUDGMENT present heir of deceased Mohanbhai Nathabhai Versus Mamlatdar and ALT and the petitioner herein and also against the original landlord. It further appears that another Tenancy Appeal No.17 of 1995 was also filed by Dahyabhai Shankerbhai Solanki, resident of Balupura, Juna Rasta, Anand, Taluka - District Anand as power of attorney holder of Solanki Ravjibhai Mathurbhai against the present petitioner as well as heir of original landlord of the land in question. Both the above referred appeals appears to have been filed challenging the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 by the Mamlatdar and ALT, Anand. Referring to the said order, it further appears that both the above referred appeals were filed against one order i.e. order dated 30.7.1994 passed in Tenancy Case No.63 of 1990, referred above, for the reasons best known to both the power of attorney holders as well as for the reasons best known to the person who has issued two power of attorneys viz., Ravjibhai Mathurbhai Solanki. Referring to Page 30 of 57 C/SCA/14901/2011 CAV JUDGMENT the said order, it further appears that the record of the lower Court was called for by the concerned Deputy Collector which was received by him and in the meantime, respondent No.2/1 of Tenancy Appeal No.7 of 1995 i.e. Thakorbhai Somabhai, who is the petitioner of this petition, has given the application for expediting the hearing of the appeal. It is also mentioned that as the original appellant i.e. Ravjibhai Mathurbhai Solanki gave application on 11.12.1996 to withdraw both the Tenancy Appeals filed in the said Court, the hearing was kept on 30.1.1997 to hear power of attorney holder of the appellant of the said case and advocate of the appellant on the basis of the vakilpatra submitted by them in the appeal. It is further observed that acknowledgment has been received that the advocate for the appellant was informed about hearing, but advocate for the appellant was not present. The application for adjournment was submitted by Muljibhai Khodabhai Parmar - power of attorney holder of the appellant of Tenancy Page 31 of 57 C/SCA/14901/2011 CAV JUDGMENT Appeal No.7 of 1995 which was rejected and the case was kept for judgment. It is then observed that Ravjibhai Mathurbhai Solanki has given purshis to withdraw both the appeals. It is also observed that though the appeals have been filed by power of attorney holders of Ravjibhai Mathurbhai Solanki, but as the appellant himself i.e. Ravjibhai Mathurbhai Solanki wants to withdraw the appeals, there is no bar, more particularly, when said Ravjibhai Mathurbhai Solanki has stated in the purshis of withdrawal of both the appeals that he has relieved power of attorney. One advocate Mr.M.S.Patel made his signature on the said withdrawal purshis before the said Court regarding identity of the said person who has presented the said purshis. It is also observed that the said purshis was placed at page 71 of the record of Tenancy Appeal No.7 of 1995. Finally, it is mentioned in the said order that as the original appellant himself i.e. Ravjibhai Mathurbhai Solanki wants to withdraw the appeals by relieving power of attorney, Page 32 of 57 C/SCA/14901/2011 CAV JUDGMENT permission is granted to withdraw the appeals unconditionally considering the same as dismissed. It is pertinent to note at this juncture that said Ravjibhai Mathurbhai Solanki who alleged to have filed withdrawal purshis for withdrawal of both the appeals as referred hereinabove and the order dated 7.4.1997 which was passed by the Deputy Collector has passed away on 20.7.1998. It is not satisfactorily explained by any one that as to why Ravjibhai Mathurbhai Solanki has initially issued two power of attorney by which two different persons have challenged one order i.e. order passed in Tenancy Case No.63 of 1990 as referred hereinabove and after filing of two appeals in 1995, for which reason, said Ravjibhai Mathurbhai Solanki has himself side-tracking both the power of attorney withdrawn the said appeals by tendering withdrawal purshis as referred hereinabove. This conduct of Ravjibhai Mathurbhai Solanki appears very strange and this Court will discuss the said aspect later on but at this stage, it is Page 33 of 57 C/SCA/14901/2011 CAV JUDGMENT pertinent to note that after withdrawal of the above referred both the appeals on 7.4.1997, it is alleged by the petitioner that on 4.8.1997 vide 'Kabja Pavti' at page 16 and vide panchkyas at page 17, both dated 4.8.1997, the possession of the land in question has been handed over by Ravjibhai Mathurbhai Solanki and by landlord to the petitioner herein for the reasons best known to them. Though learned advocate for the petitioner has restrained himself while referring 'Kabja Pavti' at page 16 submitting that out of the said 'Kabja Pavti', he only wants to show that the possession of the land in question was handed over by Ravjibhai Mathurbhai Solanki as well as by the landlord and the petitioner herein was put in possession of the land in question vide said 'Kabja Pavti' at page 16 and panchkyas at page 17 which in my view deserves to be considered going through the said document.
Referring to page 16, it appears to be simple typed copy of 'Kabja Pavti' referred Page 34 of 57 C/SCA/14901/2011 CAV JUDGMENT hereinabove by the petitioner which is dated 4.8.1997 appears to have been singed by Ravjibhai Mathurbhai Solanki and the petitioner herein. The age of said Ravjibhai Mathurbhai Solanki mentioned in it is 72 years and it is not under dispute that said Ravjibhai Mathurbhai Solanki has passed away on 20.7.1998. In paragraph 2.5 of the petition, the averments have been made so far as 'Kabja Pavti' at page 16 and panchkyas at page 17 dated 4.8.1997 are concerned which reads as under.
"2.5 The petitioner states the Panchnama prepared and possession handed over to the petitioner in presence of Panchas and Talati. The possession receipt was also issued by the said Ravjibhai Solanki and the original landlord on 4/08/1997. The copies of the said possession receipt and the panchnama are annexed herewith and marked as ANNEXURE :B:." (Emphasis supplied). In light of the above referred averments, if we peruse 'Kabja Pavti' i.e. possession receipt Page 35 of 57 C/SCA/14901/2011 CAV JUDGMENT dated 4.8.1997 at page 16, it appears that only Ravjibhai Mathurbhai Solanki and the petitioner alleged to have signed the same in the presence of Talati-cum-Mantri, Anand. Nodoubt, the original of this document is though not on record, but true copy which has been signed by the advocate produced at page 16 referred hereinabove if perused carefully, it appears that the original landlord has not put his signature in spite of the fact that the petitioner has averred in the petition that possession receipt was also issued by said Ravjibhai Mathurbhai Solanki and the original landlord on 4.8.1997 which is totally incorrect and, as such, it is nothing but an attempt to misguide the Court. At this juncture, it is important to note that the petitioner has filed two Civil Applications i.e. Civil Application No.379 of 1995 in First Appeal No.889 of 1984, copy of which is at page 48 and Civil Application No.380 of 1995 in First Appeal No.1118 of 1984, copy of which is at page 60 for joining him as a party in the aforesaid First Page 36 of 57 C/SCA/14901/2011 CAV JUDGMENT Appeals on the grounds, more particularly, narrated in it and both the Civil Applications were dismissed vide order dated 22.2.1995 on the ground that in a suit for specific performance, a tenant is neither necessary nor proper party. Both the above referred Civil Applications were filed by learned advocate Mr.R.A.Patel on behalf of the petitioner herein in the year 1995. It is important to note that said learned advocate Mr.R.A.Patel has also preferred First Appeal No.889 of 1984 on behalf of above referred Ravjibhai Mathurbhai Solanki who alleged to have withdrawn Tenancy Appeal No.7 of 1995 and Tenancy Appeal No.17 of 1995 filed by the power of attorneys holder of said Ravjibhai Mathurbhai Solanki challenging the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 and which was withdrawn by himself as discussed hereinabove and thereafter, at the feg end of his life, Ravjibhai Mathurbhai Solanki alleged to have transferred possession of the land in question on 4.8.1997 vide 'Kabja Pavti' at page 16. It is Page 37 of 57 C/SCA/14901/2011 CAV JUDGMENT important to note at this juncture that though the petitioner herein has made an attempt to join him in First Appeal No.889 of 1984 and First Appeal No.1118 of 1984 as party, as referred hereinabove, the decree passed in favour of respondent No.2 herein has never been challenged nor at any point of time, he has challenged the order dated 22.2.1995 passed in Civil Application No.379 of 1995 and Civil Application No.380 of 1995. Moreover, referring to possession receipt / Kabja Pavti dated 4.8.1997 referred above at page 16, it is mentioned in it that as per the order No.T.N.C./Vashi/1654 dated 29.7.1997 of the Mamlatdar (Tenancy), we have returned the possession of the said land to Thakorbhai Somabhai, Surajben wd/o Shri Somabhai Mangalbhai Patel, Madhuben d/o Somabhai Mangalbhai, the heirs of deceased Mr.Somabhai Mangalbhai Patel and now there is no controversy / dispute regarding this land and accordingly signed the said Kabja Pavti after reading and understanding it. So far as above referred order TNC/Vashi/1654 Page 38 of 57 C/SCA/14901/2011 CAV JUDGMENT dated 29.7.1997 of Mamlatdar (Tenancy) on the basis of which the possession was alleged to have returned, the same appears not on record. The petition is silent regarding the same. The note related to description of proceedings prepared by the petitioner at pages 156 to 158 also silent on the said order. I have tried to find out the said document i.e. order dated 29.7.1997 but I could not lay my hand on it. As referred above, learned advocate for the petitioner has shown his unwillingness to refer the said document except submitting that by referring the said document, he wants to show that possession was handed over to the petitioner by Ravjibhai Mathurbhai Solanki and by the landlord. As such, I have failed to understand that how an advocate makes submission on the document produced by him putting part reliance on it and not to refer further. In short, the order dated 29.7.1997 referred above by which possession of the land in question alleged to have been handed over on 4.8.1997 is not on record for the reasons best known to the Page 39 of 57 C/SCA/14901/2011 CAV JUDGMENT petitioner. It is pertinent to note at this juncture that it is also the case of the petitioner that vide order dated 11.8.1997 passed in Tenancy Case No.99 of 1997, purchase price Rs.1036/- was fixed. The said order is also not forthcoming on the record of this petition for the reasons best known to the petitioner. Though, it has been mentioned by the persons who have signed the said 'Kabja Pavti' at page 16 dated 4.8.1997 that now there is no controversy / dispute regarding this land, more particularly, when both were within the knowledge that First Appeal Nos.889 and 1118 of 1984 were pending before the High Court in which the petitioner had tried to join himself as party, as referred above and in spite of it, it is mentioned in the panchkyas dated 4.8.1997 that on the said land, no claim of other party appears to have been pending. It is also pertinent to note that in the panchkyas dated 4.8.1997 at page 17 though it is mentioned that Ravjibhai Mathurbhai Solanki and land owner Rameshbhai Dahyabhai Patel, both Page 40 of 57 C/SCA/14901/2011 CAV JUDGMENT have handed over physical possession of land in question on 4.8.1997 at 14.00 hours before City Talati, Anand, the said persons have not signed the said panchkyas nor City Talati, Anand had thought it fit to direct them to put their signatures in the said panchkyas. In the panchkyas except City Talati, Anand and panchas, no other signatures are there who have alleged to have handed over physical possession and who have accepted the said possession of land in question. Under the circumstances, the said both documents prima facie appear concocted one which have been prepared in collusion by the petitioner taking help of Ravjibhai Mathurbhai Solanki at the fag end of Ravjibhai's life who has passed away on 20.7.1998 is the submission made by party-in- person - respondent No.2 and I find myself in agreement with the same.
8.4 As per the case of the petitioner, Ravjibhai Mathurbhai Solanki was not tenant of the land in question as held by Tenancy Court, in Page 41 of 57 C/SCA/14901/2011 CAV JUDGMENT spite of that said Ravjibhai Mathurbhai Solanki in collusion with respondent No.2 had entered into sale transaction related to the land in question and which is against the law and the same is not binding to the petitioner. The conduct of Ravjibhai Mathurbhai Solanki which has come on record is also worth noting for proper adjudication of the issue involved in this petition. It appears that prior to mutation entry No.6284 in 1954 on which the petitioner has placed reliance, mutation entry No.5637 of December 1949, Mohanbhai was shown tenant in revenue record. On the death of Mohanbhai his widow Mangu's name was entered and then it is alleged that name of Ravjibhai Mathurbhai Solanki was entered. Somabhai Mangalbhai expired in 1977. The land in question was owned by Dahyabhai Hathibhai who had sold the same to Ramkrishna Society. In Tenancy Case No.240 of 1981, the purchase price of land in question in favour of Ravjibhai Mathurbhai Solanki was fixed vide order dated 5.5.1981. Then, by virtue of the provisions Page 42 of 57 C/SCA/14901/2011 CAV JUDGMENT of the Tenancy Act, Ravjibhai Mathurbhai Solanki had become the owner of land in question after paying the amount determined by the Tenancy Court to the original owner of land and the name was accordingly entered in the revenue record. It is also the fact that a document of agreement to sell was executed by and between Ravjibhai Mathurbhai Solanki and respondent No.2 herein. Special Civil Suit No.15 of 1982 filed by respondent No.2 and others was decreed vide order dated 27.3.1984 which was challenged by said Ravjibhai Mathurbhai Solanki by filing First Appeal Nos.889 and 1118 of 1984 as discussed hereinabove. It is also the fact that respondent No.2 who was the plaintiff of Civil Suit No.314 of 1981 has tried to obtain permanent injunction against Ravjibhai Mathurbhai Solanki and others restraining them from transferring the suit land to third party and also prayed for temporary injunction which was rejected by the Court and hence, the said plaintiff had preferred the appeal in the District Court at Nadiad where he Page 43 of 57 C/SCA/14901/2011 CAV JUDGMENT had been able to obtain the order regarding maintenance of status quo on 11.1.1982. It appears that despite prohibitory order operating against Ravjibhai Mathurbhai Solanki and others, they had actually sold the land admeasuring 4 gunthas forming part of Final Plot No.432 by registered sale deed dated 15.1.1982 and further entered into contract for the sale of the suit land with others, as mentioned in the reported case of Ravjibhai Mathurbhai Solanki, deceased through his heirs and Lrs (supra). Referring to page 20, it appears that on 8.5.1997 the above referred Ravjibhai Mathurbhai Solanki has executed Will in favour of (i) Salimkhan Babubkhan Pathan and (ii) Nazirbhai Husainbhai Malek and the land in question was transferred by way of Will. Copy of the order dated 30.7.1994 passed in Tenancy Case No.63 of 1990 is at page Nos.141 to 148. Referring to the cause title of the said order, it can be said that Ravjibhai Mathurbhai Solanki was joined or shown as tenant No.1. As observed in it in the further deposition Page 44 of 57 C/SCA/14901/2011 CAV JUDGMENT dated 4.2.1993, said Ravjibhai has deposed that land owner of land in question was Somabhai Mangalbhai i.e. father of the petitioner herein and has not stated that Dahyabhai Hajabhai was the owner of land in question. It is to be clarified that just to show conduct of Ravjibhai Mathurbhai Solanki, I have referred the above fact related to him. Moreover, said Ravjibhai Mathurbhai Solanki has also withdrawn Tenancy Appeal Nos.7 and 17 of 1995 preferred by him through power of attorney holders challenging one order, as discussed hereinabove against the petitioner and in spite of the fact that First Appeal Nos.889 and 1118 of 1984 though were pending before the High Court which have been preferred by said Ravjibhai Mathurbhai Solanki, he had withdrawn the above referred Tenancy Appeal Nos.7 and 17 of 1995 for the reasons best known to him, as discussed hereinabove. Moreover, in spite of the fact that above referred two First Appeal Nos.889 and 1118 of 1984 have been decided on 4.9.2003, said Page 45 of 57 C/SCA/14901/2011 CAV JUDGMENT Ravjibhai Mathurbhai Solanki alleged to have handed over the land in question by executed alleged possession receipt / Kabja Pavti dated 4.8.1997 in favour of the petitioner herein. 8.5 In light of the above discussion, it is also important to note that in the order dated 29.10.2004 passed by the Deputy Collector, Anand in T.N.C./G.DHA.K.84/Case No.2/03-04 the petitioner has joined legal heirs of Ravjibhai Mathurbhai Solanki as well as respondent No.2 herein. It further appears that one Ramilaben w/o Naranbhai Jesangbhai Prajapati is joined as third party. The said order dated 29.10.2004 appears to have been challenged before the Tribunal by the petitioner herein by preferring Revision Application No.42 of 2005, copy of which is at pages 35 to 39 and which appears to have been disposed of on 20.9.2011. Referring to the cause title of said Revision Application No.42 of 2005, it appears that though heirs of Ravjibhai Mathurbhai Solanki have been joined being opponent Nos.1, 2, 2.1, 2.2 and 2.3, they have Page 46 of 57 C/SCA/14901/2011 CAV JUDGMENT been deleted during the course of pendency of the said appeal for the reasons best known to the petitioner. After the order dated 20.9.2011, the petitioner has preferred this petition, but referring to the prayers sought for by the petitioner in paragraph 6-A, B, C and D, it appears that above referred both the orders have not been challenged by seeking any relief for setting aside the said orders, referred above, passed by the competent authorities and in this petition, the petitioner has joined the State of Gujarat and also omitted to join legal heirs of Ravjibhai Mathurbhai Solanki and in the present petition, he has sought prayers seeking direction against respondent No.1 to hand over possession of the land in question after evicting respondent No.2. Thus, the parties who were before the competent authority at one point of time i.e. heirs of Ravjibhai Mathurbhai Solanki have been joined and deleted and ultimately omitted and the State of Gujarat who was not joined as party at all has been joined seeking relief for getting Page 47 of 57 C/SCA/14901/2011 CAV JUDGMENT possession of the land in question, as referred hereinabove. The objection to this effect has been raised by learned AGP and no satisfactory explanation has been forthcoming by learned advocate for the petitioner.
9. During the course of submissions, learned advocate for the petitioner has referred the order dated 29.10.2004 passed in T.N.C./G.DHA.K.84/Case No.2/03-04 by the Deputy Collector, Anand, copy of which is at pages 28 to
32. On page 31, internal page 4 of the said order, it is observed by the Deputy Collector that as submitted by opponent No.3 therein - respondent No.2 herein, Thakorbhai Somabhai Patel
- petitioner herein has challenged the order dated 19.10.2000 passed in Tenancy Case No.99 of 1999 by the Mamlatdar and ALT, Anand by filing Tenancy Appeal No.5 of 2001 before the Deputy Collector and the order was passed in favour of opponent No.3 therein - respondent No.2 herein. The Deputy Collector has observed in his finding Page 48 of 57 C/SCA/14901/2011 CAV JUDGMENT that document related to Tenancy Appeal No.5 of 2001, as submitted by opponent No.3 therein - respondent No.2 herein, has not been produced nor the petitioner has also produced the same related to said Tenancy Appeal No.5 of 2001. Learned advocate for the petitioner has submitted that he is also not in knowledge of the proceedings mentioned as Tenancy Appeal No.5 of 2001 and hence shown ignorance regarding the same. After 29.10.2004, in my view, the petitioner got enough time to make search regarding said Tenancy Appeal No.5 of 2001 for his satisfaction also, but for the reasons best known to the petitioner, he has shown his ignorance regarding the said order. At this juncture, I am of the view that the petitioner herein has not come with clean hands and appears to have played game of hide and seek for no reason. As discussed hereinabove, the main submission of the petitioner is that as Tenancy Appeal Nos.7 and 17 of 1995 were withdrawn by Ravjibhai Mathurbhai Solanki, the order passed in Tenancy Case No.63 of 1990 has attained finality Page 49 of 57 C/SCA/14901/2011 CAV JUDGMENT and he was declared tenant and hence, now he is entitled to get possession from respondent No.2 herein as prayed for though the decree has been passed in favour of respondent No.2. 9.1 Learned advocate for the petitioner has also placed reliance on the decision in the case reported in 1998(1) Mh.L.J. 614, Anna Banu Sul and another Vs Laxman Pandurang Tiwatne (since deceased through Lrs.) and others and submitted that as mentioned therein, though the sale deed has been executed, the same deserves to be ignored when the order under section 32-G of the Tenancy Act has been passed in favour of the tenant. I have perused the above referred citation and it appears that when the proceedings under section 32-G of the Tenancy Act were initiated in favour of the tenant, the tenant was in possession of the land and the landlord has executed the sale deed in respect of the land during the pendency of the said proceedings and the contention was raised by the purchasers that Page 50 of 57 C/SCA/14901/2011 CAV JUDGMENT by virtue of the sale deed, they came to be in possession of the land and, therefore, without invoking section 29 of the Act, the tenant who has been dispossessed cannot get the land restored more particularly when in the sale deed it has been shown that the tenant was actually dispossessed and accordingly, the Court has held that dispossession was during the pendency of the proceedings and hence, further held that the sale deed has to be, therefore, ignored. In the case on hand, when Ravjibhai Mathurbhai Solanki has entered into the agreement to sell, he was declared tenant of the land in question and thereafter, after 8 years without joining respondent No.2 herein, proceedings appear to have been initiated by the petitioner, as discussed hereinabove, against Ravjibhai Mathurbhai Solanki and landlord and later on, he appears to have been colluded with Ravjibhai Mathurbhai Solanki who has withdrawn Appeal Nos.7 and 17 of 1995 and alleged to have handed over possession of the land in question on 4.8.1997, Page 51 of 57 C/SCA/14901/2011 CAV JUDGMENT as discussed hereinabove. The said action of the petitioner herein shows that the petitioner has tried to show that on the basis of the order passed in Tenancy Case No.63 of 1990, he was in possession on 4.8.1997 and hence, the said possession deserves to be restored, in my view, the petitioner appears to have indirectly purchased the said transaction because referring to the documents at page Nos.129 and 130 referred hereinabove, the heir of Ravjibhai Mathurbhai Solanki i.e. Rameshbhai Ravjibhai Solanki has handed over possession of the land in question in the year 2010 by Court's order.
9.2 Learned advocate for the petitioner has placed reliance on the decision reported in 2000(1) GLH 580, Saburbhai Hemabhai Chauhan Vs State of Gujarat and others, Head note of which reads as under.
"Bombay Tenancy and Agricultural Lands Act, 1948 - S.84-C -Sale transaction found void -It could be so declared at Page 52 of 57 C/SCA/14901/2011 CAV JUDGMENT any time - Mere lapse of time would not make the action of authorities invalid -
Any action, transaction, decision or
order which is illegal and void ab
initio to be treated as non est -
Validity of such an illegal non est
order could be questioned in any
proceedings at any stage by any body - Non est order does not create any right, title or interest - It confers neither any status nor any right - Such non est or illegal order, decision, transaction or action would be for all purpose ineffective and of no consequence in the eye of law - Sale deed which is void ab initio cannot be legalised simply because delayed action was taken."
In the above citation, it is observed that non est or illegal order, decision, transaction or action would be for all purposes ineffective and of no consequence in the eye of law. So far as respondent No.2 herein is concerned, learned advocate for the petitioner has failed to point out that how the decree obtained by him is illegal, void ab initio which is required to be treated as non est. As Page 53 of 57 C/SCA/14901/2011 CAV JUDGMENT discussed hereinabove at length, on the basis of the withdrawal of Tenancy Appeal Nos.7 and 17 of 1995, it is the case of the petitioner that order which has been passed in Tenancy Case No.63 of 1990 has attained finality but the fact remains that in spite of having knowledge of all concerned, more particularly, petitioner herein and Ravjibhai Mathurbhai Solanki regarding pendency of First Appeal Nos.889 and 1118 of 1984 in which the petitioner has made an half-hearted attempt to join himself as party. Then Ravjibhai Mathurbhai Solanki has shown his willingness to withdraw the appeals and also alleged to have handed over paper possession of the land in question on 4.8.1997 when as such the decree related to the land in question was already passed on 27.3.1984 in favour of respondent No.2 herein and others and further the question was related to the said land in question was pending before the High Court, the said action of withdrawal of appeals and handing over of paper possession has been made to the petitioner by Page 54 of 57 C/SCA/14901/2011 CAV JUDGMENT Ravjibhai Mathurbhai Solanki is as such a transaction or their said action can be said for all the purposes ineffective and of no consequence in eye of law when the better title has already been passed in accordance with law in favour of respondent No.2 herein and others which has not been challenged and hence in my view this citation appears to be helpful to respondent No.2 herein rather than the petitioner herein. 9.3 The petitioner has also put reliance on further citations which are as under:
(i) 1993(2) GLR 1455
(ii) 1993(2) GLR 1496
(iii) 2000(1) GCD 793
(iv) (1999) 1 SCC 69
(v) AIR 1992 SC 1093
(vi) AIR 1956 SC 593
I have carefully gone through the ratio laid down in the above referred citations by the concerned Court. For the peculiar facts and findings of this Court which has been discussed Page 55 of 57 C/SCA/14901/2011 CAV JUDGMENT hereinabove, now with a view not to burden this case, I do not enter into discussion with the above referred citations because in my view the petitioner herein has, as such, not come with clean hands and appears to have suppressed the real facts by not tendering the relevant document which has entered into between the parties as discussed hereinabove and under the circumstances, the ratio laid down in the above referred citations, in my view, is not applicable to the facts of the present case considering the peculiar conduct of the petitioner and Ravjibhai Mathurbhai Solanki, as discussed at length and hence I have not entered into elaborate discussion regarding the said citations.
10. In view of the above referred circumstances, this petition, seeking the direction against respondent no.1 to handover the possession of the agricultural land bearing Survey No.2415/2, Final Plot No.432, admeasuring 0 Acre and 16 Gunthas of village Anand, District Page 56 of 57 C/SCA/14901/2011 CAV JUDGMENT Anand, after evicting respondent No.2 from the disputed land in question, deserves to be dismissed. Accordingly, this petition is hereby dismissed. Rule is discharged. Considering the fact that the petitioner has not come with clean hands as discussed hereinabove and appears to have suppressed certain important and relevant facts as discussed hereinabove, in my view, the order awarding cost to respondent no.2 would serve the purpose. Hence, the petitioner is directed to pay the cost of this litigation within 3 months to respondent No.2 which is quantified at Rs.25,000/-.
(G.B.SHAH, J.) pathan Page 57 of 57