Gujarat High Court
Vali Ibrahim Bandhukiya & 3 vs Mayurdwajsinh Vijaysinhji Rana & 6 on 29 April, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/CA/1330/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1330 of 2014
In SPECIAL CIVIL APPLICATION NO. 11576 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment?
2 To be referred to the Reporter or not? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
5 Whether it is to be circulated to the civil judge? NO
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VALI IBRAHIM BANDHUKIYA & 3....Applicant(s)
Versus
MAYURDWAJSINH VIJAYSINHJI RANA & 6....Respondent(s)
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Appearance:
MR DHAVAL M BAROT, ADVOCATE for the Applicant(s) No. 1 4
MR YN RAVANI, ADVOCATE for the Respondent(s) No. 1
MR YM THAKKAR, ADVOCATE for the Respondent(s) No. 2
MR BHARAT VYAS, AGP for the Respondent(s) No. 37
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Page 1 of 21
C/CA/1330/2014 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 29/04/2014
CAV JUDGMENT
1. Heard Mr. Dhaval Barot, learned advocate for the applicants, Mr. Y. N. Ravani, learned advocate for the opponent No. 1 herein - original petitioner, Mr. Y. M. Thakkar, learned advocate for the opponent No. 2 herein - original respondent No. 1 and Mr. Bharat Vyas, learned Assistant Government Pleader for opponent Nos. 3 to 7.
2. Rule. Learned advocates for the respective opponents waive service of process of Rule.
3. Present Civil Application has been filed by the applicants praying for to implead them as party respondents in the main matter being Special Civil Application No. 11576 of 2013.
4. It is the case of the applicants that the applicant Nos. 1, 2 and 3 purchased the land bearing survey No. 245, mouje Samiyala, Taluka: Amod, District: Bharuch (hereinafter referred to as 'the land in question'), from the applicant No. 4 herein by way of Page 2 of 21 C/CA/1330/2014 CAV JUDGMENT Registered Sale Deed No. 984 of 2013 dated 12/08/2013 and necessary mutation entry has also been made in the favour of the applicant Nos. 1, 2 and 3 viz. entry No. 2789 dated 12/08/2013 in the Village Form No. 6 at Annexure 'A' to this application. It is further the case of the applicants that the applicant No. 4 had purchased the land in question from the opponent No. 2 herein - Indrakunwarba D/o. Mansinhji Rana - original respondent No. 1, by way of Registered Sale Deed No. 61 of 2013 dated 11/01/2013 and necessary mutation entry was also made in the revenue record viz. entry No. 2724 dated 11/01/2013 in the Village Form No. 6 at Annexure 'B' to this application. The said entry No. 2724 was challenged by the opponent Nos. 1 and 2 herein i.e. original petitioner and original respondent No. 1 respectively before the Mamlatdar, however, later on, the opponent No. 2 herein - original respondent No. 1 withdrew the said objections and agreed to the said mutation entry in favour of the applicant No. 4 herein by submitting the reply, however, as the opponent No. 1 herein
- original petitioner herein objected the said entry, the Mamlatdar cancelled the said entry. Thereafter, pursuant to order dated 09/07/2013, the Deputy Collector certified the entry No. 2724 by entry No. 2785 at Annexure 'D' to this Page 3 of 21 C/CA/1330/2014 CAV JUDGMENT application dated 09/07/2013 in respect of the said Sale Deed and the land in question. The said fact is also known to the opponent Nos. 1 and 2 herein, is the case of the applicants herein.
5. Mr. Dhaval Barot, learned advocate for the applicants, submitted that by way of preferring the aforesaid Special Civil Application No. 11576 of 2013 the original petitioner - opponent No. 1 herein has challenged the order dated 21/06/2013, passed by the Additional Secretary, Revenue Department (Appeals), whereby, the order of the Collector dated 16/04/2013, quashing and setting aside the order of the Deputy Collector, Jambusar dated 25/10/2012 and confirming the order of the Mamlatdar, Amod dated 24/11/2011 certifying the entry No. 2566 dated 13/10/2010, was quashed and set aside. The learned advocate for the applicants submitted that all these orders relate to the land in question being survey No. 245, mouje Samiyala, Taluka: Amod, District: Bharuch, which is, as per the case of the applicants, is in possession of the applicant Nos. 1, 2 and 3.
5.1 The learned advocate for the applicants further submitted that Page 4 of 21 C/CA/1330/2014 CAV JUDGMENT while admitting the said petition (Special Civil Application No. 11576 of 2013) this Court (Coram: Harsha Devani, J.), by order dated 24/07/2013 was pleased to stay the aforesaid impugned order dated 21/06/2013.
5.2 The learned advocate for the applicants submitted that the applicants are the proper and necessary party for proper adjudication of the petition in question as the applicant Nos. 1, 2 and 3 are the purchasers and possessors of the aforesaid land in question and the applicant No. 4 is the seller of the land in question, from whom the applicant Nos. 1, 2, and 3 have purchased the same, as aforesaid and it is the said land which is the subject matter of the petition in question and accordingly, the applicants become the proper and necessary party to the said proceedings and if they are not joined as party as prayed for, the proper adjudication of the petition is not possible, besides, possibility of serious prejudice that may cause to the applicants herein so also there are immense possibility of multiplicity of the proceedings. Moreover, while preferring this application, it has been alleged by the applicants herein that the opponent No. 1 herein, with ulterior motives and the opponent No. 2 also now seems to have joined hands with him, they are Page 5 of 21 C/CA/1330/2014 CAV JUDGMENT likely to create a situation whereby the valuable rights of the applicants are likely to be affected and as the said allegation levelled in the present application on 10/02/2014 appears to be turned into reality on 01/03/2014, when both of them filed joint declaration and the opponent No. 2 herein - original respondent No. 1 filed the additional affidavit, which is at page Nos. 179 to 180 of the main petition. Hence, the learned advocate for the applicants prays for to allow the present Civil Application and allow the present applicants to be joined as party in Special Civil Application No. 11576 of 2013.
6. On the other hand, Mr. Ravani, the learned advocate for the opponent No. 1 herein - original petitioner has seriously opposed the present Civil Application and submitted that the present applicants are not, in any way, can be said to be the proper and necessary party as before the lower authorities, in the entire revenue proceedings, the opponent No. 1 and opponent No. 2 only were the parties and the present applicants were not the party to the said proceedings and hence, they cannot be allowed to be joined as party in the petition in question, more particularly, when the applicants are not having any lis in the subject matter for deciding the main petition. The Page 6 of 21 C/CA/1330/2014 CAV JUDGMENT learned advocate for the opponent No. 1 herein - original petitioner further submitted that as per the settled legal position, the applicants are neither the necessary nor the proper party and their presence is not required for deciding the cause in the petition.
6.1 In support of his submissions, the learned advocate for the opponent No. 1 has relied upon the decision rendered by the Hon'ble the Apex Court in Kasturi Vs. Iyyamperumal and Others, reported in AIR 2005 SC 2813, more particularly, para 17 and 18, which read as under:
"17. That apart, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litus and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are therefore of the view that respondent Nos. 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party defendants in the pending suit for specific Page 7 of 21 C/CA/1330/2014 CAV JUDGMENT performance of the contract for sale.
18. The learned counsel appearing for the respondent Nos. 1 and 4 to 11, however, contended that since the respondent Nos. 1 and 4 to 11 claimed to be in possession of the suit property on the basis of their independent title to the same, and as the appellant had also claimed the relief of possession in the plaint, the issue with regard to possession is common to the parties including respondent Nos. 1 and 4 to 11, therefore, the same can be settled in the present suit itself. Accordingly, it was submitted that the presence of respondent Nos. 1 and 4 to 11 would be necessary for proper adjudication of such dispute. This argument which also weighed with the two courts below although at the first blush appeared to be of substance but on careful consideration of all the aspects as indicated hereinearlier, including the scope of the suit, we are of the view that it lacks merit. Merely, in order to find out who is in possession of the contracted property, a third party or a stranger to the contract cannot be added in a suit for specific performance of the contract for sale because the respondent Nos. 1 and 4 to 11 are not necessary parties as there was no semblance of right to some relief against the respondent No.3 to the contract. In our view, the third party to the agreement for sale without Page 8 of 21 C/CA/1330/2014 CAV JUDGMENT challenging the title of the respondent No.3, even assuming they are in possession of the contracted property, cannot protect their possession without filing a separate suit for title and possession against the vendor. It is well settled that in a suit for specific performance of a contract for sale the lis between the appellant and the respondent Nos. 2 and 3 shall only be gone into and it is also not open to the Court to decide whether the respondent Nos. 1 and 4 to 11 have acquired any title and possession of the contracted property as that would not be germane for decision in the suit for specific performance of the contract for sale, that is to say in a suit for specific performance of the contract for sale the controversy to be decided raised by the appellant against respondent Nos. 2 and 3 can only be adjudicated upon, and in such a lis the Court cannot decide the question of title and possession of the respondent Nos. 1 and 4 to 11 relating to the contracted property."
6.2 The learned advocate for the opponent No. 1 further relied upon a decision of this Court in Babubhai Laxmanbhai and Others Vs. Patel Naranbhai Thakersibhai and Others, reported in 1995 (2) GLH 788, wherein it is held that, 'Secondly, the general rule is that the plaintiff is the master of the Page 9 of 21 C/CA/1330/2014 CAV JUDGMENT situation and it is he who has to decide and choose with whom he has to fight with and what reliefs he has to ask for from whom. The principle of dominus litis ordinarily is required to be followed. Unless and until an exceptional case made out falling within the ambit of O. 1 R. 10, request for addition of parties by a stranger and outsider in a suit should not be allowed just like seeking permission to travel in a running train without fare. Obviously, the court has to address itself in such a situation to the following questions: (1) Whether the applicants could file a separate suit against the impugned judgment and decree? (2) Can the case be not disposed of without the presence of the applicants?" Last but not the least, the learned advocate for the opponent No. 1 has submitted that as the aforesaid, the present applicants being not proper or necessary party, present Civil Application deserves to be dismissed.
7. Mr. Y. M. Thakkar, the learned advocate for the opponent No. 2 herein - original respondent No. 1 has submitted that, as such, on 11/01/2013, as alleged by the applicants herein that the opponent No. 2 herein - original respondent No. 1 has transferred the land in question to applicant No. 4 herein and Page 10 of 21 C/CA/1330/2014 CAV JUDGMENT on the said dated i.e. 11/01/2013, she was not having any title over the property because the Civil Court has already passed the order in favour of the opponent No. 1 herein - original petitioner and mutation entry No. 2566 was certified on 02/12/2011 and hence, as such, the applicants herein have no right over the land in question and if at all the applicants herein have any grievance, they can file separate proceedings in accordance with law but in this petition, they are not required to be joined for the reason that they have no concern with the revenue proceedings which have commenced and which are under consideration of this Court.
8. I have considered the abovereferred rival submissions made by the learned advocates for the parties in light of the facts of the case and perused the papers available on record. It is pertinent to note that by way of the petition in question, the original petitioner - opponent No. 1 herein has challenged the order dated 21/06/2013, passed by the Additional Secretary, Revenue Department (Appeals), whereby, the order of the Collector dated 16/04/2013, quashing and setting aside the order of the Deputy Collector, Jambusar dated 25/10/2012 and confirming the order of the Mamlatdar, Amod dated 24/11/2011 certifying Page 11 of 21 C/CA/1330/2014 CAV JUDGMENT the entry No. 2566 dated 13/10/2010, was quashed and set aside. The entry No. 2566 dated 13/10/2010 02/12/2011 was passed in favour of the opponent No. 1 herein - original petitioner and by virtue of order impugned in the petition in question dated 21/06/2013, the said entry No. 2566 dated 13/10/2010 02/12/2011 stands cancelled. So, to revive the said position, it appears that the opponent No. 1 - original petitioner has moved this Court by way of the petition in question. Moreover, it is not in dispute that, in all that proceedings, the present applicants were never a party and it is only in the year 2013 that the applicants herein came into picture, when, as per the case of the applicants herein, they purchased the land in question and which, prima facie, appears from the copies of the documents produced at Annexure 'A', 'B' and 'C' to this Civil Application. Be that as it may. This Court is not to decide here the issue of title or the possession. The main issue, which is to be decided is, whether the applicants are so necessary and proper party that the petition in question could not be decided without their presence. Prima facie, the answer to the question appears 'No', because, the original petitioner has, in the petition in question, challenged the order dated 21/06/2013 passed by the revisional authority, the repercussion Page 12 of 21 C/CA/1330/2014 CAV JUDGMENT of which is cancellation of entry No. 2566 dated 13/10/2010 02/12/2011, which was made in favour of the original petitioner, and at that point of time, the applicants were neither the party nor have they, as alleged, purchased the land in question from opponent No. 2 - original respondent No. 1. But before coming to the final conclusion on the said query, certain glaring and important facts, which have come on the petition, are required to be perused and also required to be considered while deciding the issue involved in the present Civil Application. It is not in dispute that the opponent No. 1 herein
- original petitioner had preferred the Special Civil Suit No. 12 of 1986 before the Court of learned Civil Judge, Senior Division against Harishkunwarba, Indrakunwarba, the opponent No. 2 herein - original respondent No. 1 and other three persons, as is reflected in the decree passed in the aforesaid Special Civil Suit No. 12 of 1986, copy of which is produced at page No. 83. The said decree was challenged by the opponent No. 2 herein - original respondent No. 1 by way of First Appeal No. 1521 of 1995 and it is also not in dispute that during the pendency of the said First Appeal, the parties had arrived at a settlement outside the Court and therefore, the opponent No. 2 herein - original respondent No. 1 had withdrawn the said First Appeal. Page 13 of 21 C/CA/1330/2014 CAV JUDGMENT
It is also important to note at this juncture that as per the submission of the learned advocate for the opponent No. 1 herein - original petitioner, after the abovereferred settlement, when the aforesaid First Appeal No. 1521 of 1995 had been withdrawn by the opponent No. 2 herein - original respondent No. 1, in that circumstance, the judgment and decree, passed by the trial Court stands substituted by the terms of compromise arrived at between the parties and as per the Compromise Deed, it was permissible for the opponent No. 1 herein - original petitioner to get his name entered into the revenue record and accordingly, care has been taken by the revenue authorities. It is the fact that the aforesaid First Appeal No. 1521 of 1995 was withdrawn on 29/11/2007. The Undertaking dated 29/09/2011 was also executed by the opponent No. 2 herein - original respondent No. 1 is produced vide page Nos. 118 to 121 to the petition.
8.1 Before proceeding with the main issue involved in this application, certain revenue proceedings, which have commenced related to the land in question and which are the subject matter of the main petition, are required to be looked into and accordingly, referring to the Annexure 'I', page Page 14 of 21 C/CA/1330/2014 CAV JUDGMENT No. 123 to the petition, it appears that one Mr. Shirajhusen @ Sunilsinh Vijaysinh Rana had preferred case No. 25 of 2010 against the opponent No. 1 herein - original petitioner lodging the objections against mutation entry No. 2566 dated 13/10/2010 before the Court of Mamlatdar, Amod and the order has been passed by the Mamlatdar, Amod on 24/11/2011. Though, this Court is aware of the fact that so far as the present Civil Application is concerned, this Court is not to enter into the merits of the main matter but referring to the abovereferred order dated 24/11/2011, more particularly, page No. 124, it has been observed by the concerned Mamlatdar at the relevant point of time that the land in question is in the name of daughter of Indrakunwarba Mansinhji Bha Saheb in the Village Form No. 7/12. It is further observed in the said order that the said land had been sold by executing the Registered Sale Deed No. 1170 dated 30/08/2010 by the grand daughter of Indrakunwarba Mansinhji Bha Saheb to i) Mustufa Ismail Khoda, ii) Siraj Ahmad Kantiwala and iii) Saeed Ismail Yusuf, all resident of Tankariya and the mutation entry to that effect was also carried out vide entry No. 2561 dated 07/09/2010. Moreover, the present opponent No. 2 - original respondent No. 1 had also preferred the Case No. 35 of 2012, under Section Page 15 of 21 C/CA/1330/2014 CAV JUDGMENT 108(5) of the Bombay Land Revenue Code before the Deputy Collector and the order dated 25/10/2012 appears to have been passed in favour of the applicant and the entry No. 2566 was cancelled. The said order was challenged by the opponent No. 1 - original petitioner before the Collector and the case was registered as appeal No. 2 of 2013 and the Collector has allowed the said appeal vide order dated 16/04/2013. The said order was challenged by the opponent No. 2 herein - original respondent No. 1 i.e. Indrakunwarba before the SSRD and vide order dated 21/06/2013, Additional Secretary, Revenue Department (Appeal), Ahmedabad allowed the application. It is this order, which is impugned order in the main petition being Special Civil Application No. 11576 of 2013, preferred by the opponent No. 1 herein - original petitioner. Referring to the copy of Undertaking dated 29/09/2011, produced at page No. 118 to the petition, which has been executed by the opponent No. 2 herein - original respondent No. 1 in which, she has confirmed the decree passed in Special Civil Suit No. 12 of 1986 and further mentioned that due to misunderstanding, she had sold the property of Mayurdwajsinh Vijaysinhji Rana i.e. opponent No. 1 herein - original petitioner. From the above documents, it is clear that up to the impugned order dated Page 16 of 21 C/CA/1330/2014 CAV JUDGMENT 21/06/2013, the opponent No. 2 - original respondent No. 1 has heavily contested for the land in question and it is alleged that on 11/01/2013, vide Registered Sale Deed No. 61 of 2013, she has sold the land in question to the applicant No. 4 herein and in turn the applicant No. 4 has sold the land in question to the applicant Nos. 1, 2 and 3 herein. Thus, it can be said that when the impugned order dated 21/06/2013 was passed, prior to that, as per the case of the applicants, the opponent No. 2 - original respondent No. 1 had sold the land in question to the applicants as referred hereinabove. It is pertinent to note that the above allegations regarding the land in question alleged to have been sold by the opponent No. 2 herein - original respondent No. 1, has not controverted by filing the affidavit in reply in the present application, nor anything substantial has been argued by the learned advocate for the opponent No. 2 on the said point.
8.2 In light of the above position, if we refer to the additional affidavit in reply filed by the opponent No. 2 - original respondent No. 1, more particularly page No. 180 to the petition, as well as the Declaration filed by the opponent Nos. 1 and 2 respectively original petitioner and original respondent No. 1 at page Nos. 182 to 186 to the petition, it appears that, Page 17 of 21 C/CA/1330/2014 CAV JUDGMENT now the opponent No. 2 - original respondent No. 1 wants to relinquish her all right, title, interest and possession of the land, so far as land in question is concerned, in favour of Mayurdwajsinh Vijaysinh Rana, opponent No. 1 herein original petitioner and hence, as such, prima facie, there appears substance in the submission made by the learned advocate for the applicants that during the pendency of the proceedings before the SSRD, the land in question was alleged to have been sold by the opponent No. 2 herein - original respondent No. 1 to the applicants, as referred hereinabove and in the main petition, they appear to have again arrive at the settlement, as referred hereinabove. In light of the above factual aspect, now the ratio laid down by the Hon'ble the Apex Court in the case of Thomson Press (India) Limited Vs. Nanak Builders and Investors Private Limited and others, reported in (2013) 5 SCC 397 is required to be considered. In Para 30 of the said judgment, the general principles related to O. 1 R. 10 of the Civil Procedure Code, 1908 (for short, 'CPC') and the settled principles on the doctrine of lis pendens, appear to have been examined. O. 1 R. 10 of the CPC empowers the Court to add any person as a party at any stage of the proceedings if the Page 18 of 21 C/CA/1330/2014 CAV JUDGMENT person, whose presence before the Court is necessary or proper for effective adjudication of the issue involved in the suit. It is clear that though the presence of the present applicants is not directly required for deciding the issue involved in the petition but as discussed hereinabove, during the pendency of the proceedings, it is alleged that the opponent No. 2 - original respondent No. 1 has transferred the land in question to the applicant No. 4 herein and in turn the applicant No. 4 has transferred the said land to applicant Nos. 1, 2 and 3 and now, the opponent No. 2 - original respondent No. 1, who has fought a long battle for the land in question, as it appears from the impugned order, now, after receiving the alleged handsome amount by executing a Registered Sale Deed in favour of the applicant No. 4 herein, by way of filing the additional affidavit inreply and also by executing the declaration, as referred hereinabove, wants to relinquish her right, title and interest in the land in question i.e. Block No. 245 of Village: Samiyala, that too in favour of the opponent No. 1 herein - original petitioner. Hence, the said conduct of the opponent No. 2 herein - original respondent No. 1 constrained this Court to allow this application, as prayed for, with a view to avoid multiplicity of proceedings between the parties and also with a view to see that Page 19 of 21 C/CA/1330/2014 CAV JUDGMENT no person can get benefit out of his own wrong. In this line, if we consider the transaction entered into between the applicant No. 4 herein and opponent No. 2 herein - original respondent No. 1, as referred hereinabove, it can be said to be the clandestine transaction, as submitted by the learned advocate for the opponent No. 1 - original petitioner. In the facts of the case of Thomson Press (India) Limited (supra) before the Hon'ble the Apex Court ultimately, the Hon'ble the Apex Court has carved out the ratio of the judgment in Para 57 of the said judgment and so far as the case on hand is concerned, Para 57.3 and 57.4 of the said judgment are, in my view, applicable more particularly when the entire Block No. 245, which is under dispute in the impugned order, has alleged to have been transferred to the applicants as referred hereinabove and the opponent No. 2 herein - original respondent No. 1 appears to have lost interest in this litigation as it appears from the aforesaid discussion. The said Para 57.3 and 57.4 read as under:
"57.3 Since the appellant has purchased the entire estate that forms the subjectmatter of the suit, the appellant is entitled to be added as a Page 20 of 21 C/CA/1330/2014 CAV JUDGMENT partydefendant to the suit.
57.4 The appellant shall as a result of his addition raise and pursue only such defences as were available and taken by the original defendants and none other."
9. In the above backdrop, in my view, present Civil Application deserves to be allowed and is accordingly allowed, as prayed for in Para 7(A) of the present Civil Application. The applicants herein are permitted to be joined as party respondent Nos. 7, 8, 9 and 10 in Special Civil Application No. 11576 of 2013, with a specific direction that the applicants herein can only raise and pursue only such defences as were available and taken by the original opponent No. 2 herein - original respondent No. 1 and none other. Rule is made absolute to the aforesaid extent. No costs.
[ G. B. Shah, J. ] hiren Page 21 of 21