Gujarat High Court
Bhavin Mehta vs Paksh Developers Private Limited on 8 September, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/CA/610/2023 ORDER DATED: 08/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 610 of 2023
In
R/FIRST APPEAL NO. 4057 of 2023
With
R/CIVIL APPLICATION NO. 722 of 2023
In
FIRST APPEAL NO. 4058 of 2023
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BHAVIN MEHTA
Versus
PAKSH DEVELOPERS PRIVATE LIMITED
==========================================================
Appearance in Civil Application No.610 of 2023:
MR AS VAKIL(962) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
SERVED BY RPAD (N) for the Respondent(s) No. 2,3
MR SAURABH SOPARKAR, SENIOR ADVOCATE for THAKKAR AND
PAHWA ADVOCATES(1357) for the Respondent(s) No. 6
Appearance in Civil Application No.722 of 2023:
MR PERCY KAVINA, SENIOR ADVOCATE with MR NIRAJ V ASHAR (2562)
for the Applicants
MR SAURABH SOPARKAR, SENIOR ADVOCATE for THAKKAR AND
PAHWA ADVOCATES(1357) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 08/09/2023
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of present applications, leave is sought to challenge the judgment and decree dated 31.3.2023 passed by learned Principal Senior Civil Judge, Kalol in Special Civil Suit No.32 of 2019.
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2. Both these applications for leave to appeal are arising out of same suit proceedings, i.e. Special Civil Suit No.32 of 2019 decided on 31.3.2023, and since common question of law and facts are arising, except land description since everything is similar, with request of learned advocates appearing for the parties, both these applications are taken up for hearing conjointly. For sake of convenience, Civil Application No.610 of 2023 is treated as a lead matter.
3. So far as Civil Application No.610 of 2023 is concerned, facts in nutshell are that applicant is owner of Jaspur lands under various registered sale deeds ranging from 23.7.2020 onwards with respect to Block/ Survey numbers, details whereof are stated in paragraph 2.6, which we deem it proper to quote hereunder:-
"Sale Deeds of Applicant in respect of Jaspur lands:
2.6. The applicant is the owner of Jaspur lands under various registered sale deeds as follows:
Sr. Block/ Date of Registered Sale Name of the Vendor No. Survey Nos. Deed 1 739 23.07.2020 (Copy at Viral Jayeshbhai Shah Annexure-6 hereto) 2 740/A 03.11.2020 (Copy at Jayeshbhai Ramanlal Annexure-7 hereto) Shah Page 2 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined 3 741 03.11.2020 (Copy at Mansiben Jayeshbhai Annexure-8 hereto) Shah 4 742 28.03.2021 (Copy at Jaspur Samudayik Annexure-9 hereto) Sahakari Kheti Mandali Limited 5 736/A 23.07.2020 (Copy at Viral Jayeshbhai Shah Annexure-10 hereto) 6 736/C 28.03.2021 (Copy at Viral Jayeshbhai Shah Annexure-11 hereto) 7 744 23.07.2020 (Copy at Viral Jayeshbhai Shah Annexure-12 hereto)
4. On the basis of the aforesaid registered sale deeds, applicant is owner and occupier of various survey numbers as mentioned of the lands which are situated at Jaspur and according to applicant, same is not being disputed, execution of such registered sale deeds was after publishing public notice and when no objections were received pursuant to such public notices, much less by respondent No.6, who is original plaintiff, applicant became owner and is in physical possession of the land right from that day even till today and upon such lands, over certain portions, even constructions have also been made. These registered sale deeds have also been effected to in the relevant revenue record and revenue entries have also been mutated based upon these transactions.
5. Opponent No.6 herein, i.e. Sterling Greenwood Ltd., had Page 3 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined filed a civil suit somewhere around in March 2019 in the Court of learned Civil Judge (S.D.) Kalol and to substantiate the claim made in paragraph-10, an assertion has been made in paragraph-10 and based the claim on the basis of report dated 31.10.2018 of one Chartered Accountant Mr. Dilip P. Shah. A list of survey numbers and block numbers of the lands situated at Jaspur as well as Bhimasan, Taluka Kalol has been narrated in the suit. The suit was later on tried after framing the issues at Exh.29 and the suit came to be allowed by judgment and order dated 31.3.2023, operative part thereof is reproduced hereunder:-
"2.3 The Trial Court was pleased by the impugned judgement and decree to allow the Suit and ordered as follows:
"1. The present suit of the Plaintiff Company is hereby ordered to be allowed.
2. It is hereby declared that Board Resolution as passed in MoM dated 18.12.2009 by the Board of Directors including the defendant No.2 to 5 and subsequently executed the MoU dated 19.12.2009 regarding two projects/land parcel namely (1) Greenwoods Sarovar City (Village: Vichiya & Kuvar, Taluka Sanand, District Ahmedabad) and (2) Greenwoods Farms Thol (Village Bhimasan Taluka Kalol, District Gandhinagar) in the favour of the defendant No.1 Paksh Developers Pvt. Ltd. owned by the defendant No.5 Mr. Anurag Agarwal as a Director is hereby declared as illegal, null, void ab initio, non est.
3. Defendant No.1 and 5 are hereby directed to hand over the possession of (2) Greenwoods Farms Thol (Village Bhimasan, Taluka Kalol, District Gandhinagar) land parcels consisting and averred in para 10 of the suit:
Page 4 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined 1. JASPUR LAND DETAILS AS SHOWN IN BOOKS Particulars Block/ Area Sq. Meters Area Sq. Yards Survey number 739 8600 10286 740/A 7184 8592 741 8094 9680 742 11938 14278 736/A 4047 4840 736/C 1012 1210 743 1619 1936 756 11635 13915 744 6981 8349 TOTAL 61110 73088 2. BHIMASAN-KALOL LAND DETAILS
4. The Defendant themselves and their agents, power of attorney men, servants, assignees are hereby permanently by way of permanent injunction restrained not to transfer, assign, alienate, create right of any third person, agent, servants, men, power of attorney in the suit property more particularly property as averred in para 10 of the suit which is as:
1. JASPUR LAND DETAILS AS SHOWN IN BOOKS.
Particulars Block/ Area Sq. Meters Area Sq. Yards
Survey number
739 8600 10286
740/A 7184 8592
741 8094 9680
742 11938 14278
736/A 4047 4840
736/C 1012 1210
743 1619 1936
756 11635 13915
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NEUTRAL CITATION
C/CA/610/2023 ORDER DATED: 08/09/2023
undefined
744 6981 8349
TOTAL 61110 73088
2. BHIMASAN-KALOL LAND DETAILS
5. Defendants shall bear the cost of the plaintiff suit as well as their own cost of the suit.
6. Decree be drawn accordingly."
6. It the case of applicant that based upon this judgment and decree dated 31.3.2023, original plaintiff, i.e. opponent No.6 herein, applied before revenue authority for mutating the entry of said judgment and decree and on 10.5.2023, said application was submitted, on the basis of which mutation entry No.831 dated 1.6.2023 was made in respect of lands which are situated at village Bhimasan. This revenue entry, according to applicant, also includes the lands which are situated at Jaspur belonging to the present applicant. Certified copy of the judgment and decree was applied on 3.6.2023, which was received on 7.6.2023, and upon perusal of said judgment and decree, it has been clearly found that applicant would be directly and prejucially affected by the outcome of said judgment and order to which applicants were not joined as party and hence, since direct bearing upon the legitimate rights of applicant with Page 6 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined respect to lands belonging to him, and being a person aggrieved, has brought the present application for the reliefs which are set out in paragraph-5 of the application. The application is submitted along with memo of substantive appeal.
7. Upon perusal of the averments which are made in the application, the Court issued notice vide order dated 21.7.2023 and later on, has come up for consideration before this Court for hearing. In the meantime, revenue entry which was made at the instance of the original plaintiff though requested not to precipitate any action for its certification, said entry got certified and hence, a serious apprehension is voiced out by learned counsel appearing for applicant that if this is taking place during pendency of present proceedings, applicant is also apprehending that under the garb of impugned judgment and decree, the opponent- original plaintiff may disturb even the possession and as such requested for peremptory hearing. Based upon such prevailing situation, at the request and with consent of learned advocates appearing on behalf of respective sides, matter is taken upon for hearing by this Court.
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8. Learned advocate Mr. A.S. Vakil appearing on behalf of the applicant has vehemently contended that applicant is a registered owner of the lands in question as narrated in the application, precisely lands named as "Jaspur land", and by virtue of this impugned judgment and order, applicant is directly and substantially affected and though he is a lawful owner of the land in question through registered sale transactions took place after following procedure and is in physical possession as on date as well, there is likelihood of clear prejudice to the applicant if this impugned judgment and order is not allowed to be challenged. Further, it has been mentioned that these sale transactions by virtue of which applicant is owner of the land and is in physical possession and by virtue of direction which has been contained, more particularly paragraph-3 of the operative part of the order, and if no interim measure is provided to protect the possession of applicant similar in the manner in which revenue entries have been effected at the instance of original plaintiff, possession is also likely to be interfered with and as such keeping in view the overall circumstances, it is desirable that leave deserves to be Page 8 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined granted in the interest of justice. Additionally, to support his submission, learned advocate Mr. Vakil has drawn our attention to one of the decisions delivered by Division Bench of this Court in Civil Applications, led by Civil Application No.1345 of 2020, decided on 5.10.2021, almost on similar line and after drawing attention to the broad proposition laid down by the Division Bench of this Court, has submitted that the case of applicant is squarely falling within such parameters which deserve leave to be granted in this peculiar background of facts.
9. Further, it has been submitted that entire case of the original plaintiff is based upon report of a Chartered Accountant which cannot in any way confer right or ownership in the property, however same is the subject matter of merit of the main appeal. Without much dwelling into it, Mr. Vakil has submitted that this is a fit case in which leave deserves to be granted. Further, it has been contended that here is a case in which resolution appears to have been passed in the name of 'Draft Resolution for Transferring the Business', same is dated 10.12.2019. Whereas, claim which is now tried to be generated is by submitting the civil suit based upon the opinion of Page 9 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined Chartered Accountant. So, practically, right from 2009 to 2018, nothing further has precipitated and suddenly, suit is brought before the Court and according to Mr. Vakil, in a hot hurried manner, proceedings of the suit have been finally dealt with. Hence, in view of the fact that applicant is seriously prejudiced, directly affected and his rights are clearly entangled in the present proceedings which relates to judgment and decree impugned, leave deserves to be granted in the interest of justice to prefer an appeal.
10. Insofar as Civil Application No.722 of 2023 filed by one Mr. Hem Jayendrakumar Patel and Shaishavi Pradipkumar Patel is concerned, applicants are owners and occupiers of land bearing Block No.69 (Block No.90) of village Bhimasan, Taluka Kalol, District Gandhinagar, admeasuring 8422 Sq. Mtrs. and they have purchased from original owners through registered sale transaction on 11.10.2021, bearing Registration No.14065 of 2021 and this sale transaction, according to the applicants, has been mutated in the revenue record vide entry No.746 dated 3.12.2021 which also came to be certified on 23.2.2022. It has come to the notice of applicants that with respect to several Page 10 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined survey numbers of village Jaspur and village Bhimasan, respondent No.1- original plaintiff had filed Special Civil Suit No.32 of 2019 before learned Principal Senior Civil Judge at Kalol for seeking declaration and permanent injunction and properties which were described in paragraphs 10 and 11 also include the property of applicants though they are lawful owners and occupiers and are in physical possession of the land in question, as indicated above, and revenue entries are also certified in their names. Said civil suit based upon some opinion of the Chartered Accountant on the basis of which original plaintiff is claiming to be the owner and said suit in a hot- hurried manner came to be disposed of without joining the present applicants though they are directly and substantially affected with the outcome of said suit.
11. According to applicants, after framing of the issues within a very short span, entire adjudication is concluded and judgment and decree came to be passed on 31.3.2023 and suit came to be allowed and it is declared that Board Resolutions as passed in MoM dated 18.12.2009 by the Board of Directors including defendant Nos.2 to 5 and subsequently executed the Page 11 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined MoU on 19.12.2009 relating two projects/ land which are stated in the memo of plaint, is declared to be illegal, non est and thereby consequently directed the original defendant Nos.1 and 5 to handover possession of 'Greenwoods Farm Thol (Village- Bhimasan, Taluka Kalol) and also lands of village Jaspur. Resultantly, applicants though directly and substantially interested and though are directly and prejudicially affected with the outcome of the disposal of the civil suit and though entries were reflecting their names, not being joined in the suit proceedings and got decree against the legitimate interest of applicants, by way of this application, applicants have sought leave to prefer an appeal challenging the impugned judgment and decree.
12. This application is also taken up conjointly with lead application in which substantially, the submissions made by learned advocate Mr. A.S. Vakil are reiterated, but additionally, it has been contended by learned senior counsel Mr. Percy Kavina that it is surprising to note that suit has been filed not on the basis of any legitimate document in support of the plaintiff's title but it is based upon a mere opinion of one private Page 12 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined Chartered Accountant as named in the judgment and very surprisingly, though there is no substantive piece of evidence in favour of the original plaintiff, suit came to be allowed to the detriment of interest of present applicant and as such, leave deserves to be granted to challenge such unsustainable judgment and decree.
13. Learned senior counsel Mr. Kavina has also drawn attention of the Court to Section 135 of the Bombay Land Revenue Code to contend that suit ought to have been with support of such requirement but plaint as a whole if to be looked into, such support is not available to the plaintiff nor reflecting in the pleadings and as such also, decree itself is not sustainable and since it is directly affecting the legitimate right of ownership of present applicants, application deserves to be allowed.
14. Learned senior counsel Mr. Kavina has submitted that there are lot of issues touching to the merit but since present application is merely for the purpose of seeking leave to prefer an appeal, said issues are not being submitted at length but it Page 13 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined has been submitted emphatically that in the suit, issues have been framed in the month of February 2023, whereas judgment and decree has been passed immediately in March 2023. Speed in which adjudication is concluded, according to Mr. Kavina, speaks volume about it. However, be that as it may, reserving liberty to comment upon the merit of judgment in a substantive First Appeal, Mr. Kavina has submitted that this is a fit case in which leave deserves to be granted. Mr. Kavina is also relying upon the decision delivered by Division Bench of this Court which has been cited by learned advocate Mr. A.S. Vakil for the applicant and has contended that parameters which are prescribed in broad for the purpose of granting leave, present set of application is perfectly fit in such proposition whereby leave deserves to be granted, hence requested to allow the application.
15. As against this, learned senior advocate Mr. Saurabh Soparkar appearing on behalf of the contesting opponent, i.e. original plaintiff, has submitted that applicant is neither affected nor prejudiced by judgment and decree and what has been granted by the Court below is the decree against the original Page 14 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined defendants and no relief is asked against the applicants nor any direction is given which may affect the applicants. Hence, that be so, no leave deserves to be granted.
16. It has been further submitted by learned senior counsel Mr. Soparkar that for the moment, question before the Court is relating to an issue as to whether leave deserves to be granted or not and as such Mr. Soparkar desists himself from expressing anything on merit of the main judgment and decree which is sought to be challenged, but has emphatically tried to make out a case that no leave be granted. Simply because revenue entries have been effected pursuant to judgment and decree, that would not give any leverage to the applicants to straightway challenge the judgment and decree which is otherwise not touching to the rights of the applicants. For substantiating his submission, Mr. Soparkar has drawn attention to some of the averments and the prayer clause made in the applications and later on by drawing attention to operative part of the judgment and decree has submitted that what has been directed is upon original defendant Nos.1 and 5. So, when judgment and decree does not relate to the rights of the applicants and the suit is not filed for Page 15 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined seeking any declaration against the present applicants, it is not understandable as to how the applicants are affected by the outcome of the case. It is a settled proposition of law that entry made in the revenue record is merely for fiscal purpose and would not confer any right, title or interest and has submitted that if ultimately, applicants are finding that there is likelihood to have any prejudice or effect, then to establish their rights over the suit lands in question, independent proceedings can be initiated and not to file application for seeking leave to appeal to challenge the judgment and decree for which they were not party.
17. Learned senior counsel Mr. Soparkar for the purpose of strengthening his submission has made a reference to the decision delivered by the Hon'ble Apex Court in the case of V.N. Krishna Murthy and Another v. Ravikumar and others reported in (2020) 9 SCC 501, and has submitted that almost in a similar situation, the Hon'ble Apex Court has also not granted leave to prefer an appeal in that peculiar background which background is almost similar and has submitted that at the best, applicants can initiate independent proceedings and cannot challenge the Page 16 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined judgment and decree for which they are not affected.
18. In rejoinder to this submission of Mr. Saurabh Soparkar, learned advocate Mr. A.S. Vakil has submitted that it is ill- founded to contend that applicant is not in any way affected or any prejudice is caused. In fact, operative part of the decree is clearly indicating that rights of the applicant are being prejudicially affected and has seriously pointed out that manner in which at the instance of original plaintiff, revenue entries have been made and certified in the same manner, they would like to usurp the possession from applicant and that itself is a serious prejudice and direct effect on the legitimate right of the applicant. Mr. Vakil has submitted that if learned senior counsel Mr. Soparkar on instruction indicates that this portion of land which the applicant is holding is not likely to be affected nor any action to be precipitated, then he may be justified, but there is no such gesture being shown and as such applicant may not be allowed to be adversely affected by the manner in which judgment and decree is passed. According to Mr. Vakil, revenue entries have been effected based upon impugned judgment and decree and though there were specific objections before the Page 17 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined revenue authority, such objections have not been dealt with and entries have been certified. So, there are all chances that legitimate rights of the applicant may be jeopardized and this is a fit case in which leave deserves to be granted.
19. It is also surprising, according to learned advocate Mr. Vakil, that how without any title of the property, title can be inferred or assumed by learned Court below on the basis of report of some private Chartered Accountant. These are the circumstances which indicate that apprehension voiced out by the applicant is genuine and impugned judgment and decree may be allowed to be challenged.
20. Simultaneously, learned advocate Mr. Vakil has further submitted that substantive First Appeal is also to be dealt with by the Court at the instance of other defendants in which notices have also been given and as such there is no prejudice to the opponent in any manner if leave is granted to the applicant. Further, by reiterating the observations contained in the decision of Division Bench of this Court, as indicated above, learned advocate Mr. Vakil has submitted that application Page 18 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined deserves to be allowed.
21. Having heard learned advocates appearing for the parties and having gone through the material on record, before dealing with the submissions, few circumstances deserve to be considered.
22. A perusal of the plaint would substantially indicate what is the base of the plaint put forth by the original plaintiff in the suit. So, along with other averments contained in paragraphs 5, 7, 8, 9, paragraph 10 appears to be relevant and as such some of the gist of paragraphs 9 and 10 deserves to be quoted hereunder:-
"9. The Plaintiff thereafter once again wrote to the then directors of the Plaintiff including the Defendant Nos. 3, 4 and 5 as also to the Defendant No. 5. The Plaintiff however did not receive any reply / satisfactory reply from them. Accordingly, the Plaintiff appointed Mr. Dilip P Shah, Chartered Accountant and proprietor of M/s D. Shah & Associates, as the independent Professional) to provide his report on the following questions:
1. Whether the properties referred in the letters of anonymous sender belonged to the Plaintiff?
2. Whether the transactions as alleged by the anonymous sender of the letter had taken place?
3. If the reply to the above reference at Sr. 2 s in affirmative, whether carrying out such transactions were in compliance with the provisions of the then applicable Companies Act, Page 19 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined 1956 and the Rules made under SEBI Act and the Stock Exchange requirements under listing Agreement and related enactments or attract breach of the provisions of applicable enactments?
10. Mr. Dilip P shah, thereafter submitted his report dated October 31, 2018. In the said report, he concluded that the properties which were subject matter of the anonymous letter were in fact of the Plaintiff and that the transactions alleged in the said letter were actually took place between the Plaintiff and the Defendant No. 1. In the said report, Mr. Shah also concluded that there were violation of the provisions of the Companies Act, 1956 and disclosure obligations under the listing agreement. In the report, it was also noted that the Defendant No. 1 not only got the said lands but also failed to pay an amount of Rs. 296.04 lacs to the Plaintiff. The List of lands/ projects that were transferred to the Defendant No. 1 and are within the jurisdiction of this Hon'ble Court are as below....."
23. The lands which are mentioned in the chart contained in paragraph 10 indicates that applicant is holder of the lands of Jaspur of Block / Survey numbers, except two survey numbers, as indicated Mr. Vakil and said lands are held by applicant through registered sale transactions which took place after proper formality and is in physical possession right now.
24. Further, a perusal of the operative part of the judgment and decree indicates that in paragraph-3, a direction in specific form is given to defendant Nos.1 to 5 to handover possession of scheduled lands which are mentioned in the said paragraph, which some of portion is belonging to the applicant as lawful Page 20 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined owner and simultaneously in paragraph-4, a permanent injunction is also granted.
25. In addition to it, based upon report of Chartered Accountant Mr. Dilip P. Shah dated 31.10.2018, it has been concluded that lands in question were in fact of plaintiff company and defendant of that suit has not challenged the report of said Chartered Accountant. So, in substance, the conclusion which has been arrived at that land is of the plaintiff is centering around the report of the Chartered Accountant and there appears to be no other cogent material. However, be that as it may, said issue is the subject matter of main First Appeal, but facts reveal that lands in question, some of which are belonging to the applicants and applicants have purchased the same through registered sale transactions after following proper procedure and same were given effect in the revenue record and in addition thereto, applicants are in physical possession of the lands at present also and as such, in sum and substance, applicants are directly being affected and are prejudicially affected if decree is allowed to be implemented. Hence, a case is made out by the applicants about prejudice Page 21 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined which is likely to be caused to them by virtue of the impugned judgment and order.
26. At this stage, learned advocates appearing for the applicants have relied upon the decision delivered by Coordinate Bench of this Court dated 5.10.2021, reflecting on page 441 of Civil Application No.610 of 2023 and the Division Bench based upon series of decisions delivered by Hon'ble the Apex Court has laid down a broad proposition which we deem it proper to quote hereunder:-
16. The principles governing grant of leave to appeal may be summarised as under :
(i) Sections 96 and 100 of the CPC provide for preferring an appeal from an original decree or decree in appeal respectively;
(ii) the said provisions do not enumerate the categories of persons who can file an appeal;
(iii) however it a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the Court that he falls within the category of aggrieved person;
(iv) it is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the Court;
(v) a person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned;
(vi) the expression person aggrieved does not include a person who suffers from a psychological or an imaginary injury;Page 22 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023
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(vii) it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and
(viii) ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.
87. Having regard to the materials on record, we are of the view that the applicants have been able to make out more than a prima facie case for grant of leave to appeal. The applicants could be said to be prima facie prejudicially affected by the consent decrees. Prima facie, the applicants have been able to demonstrate that the consent decrees affect their legal rights and would have adverse effect when carried out. The applicants could be said to be falling within the ambit of the expression 'person aggrieved' entitling them to maintain appeal against the impugned consent decrees.
88. We would like to clarify that our findings are confined only to the extent of grant of leave to appeal. The final rights of the parties shall be determined upon the adjudication of the Appeals on merits.
89. Having regard to the aforesaid, all the four Civil Applications seeking Leave to Appeal succeed and are hereby allowed. Leave as prayed for is granted in all the Civil Applications.
90. The Appeals are ordered to be admitted. The interim order earlier granted to continue in all the four Appeals till the final disposal of the Appeals.
27. In view of the aforesaid observations which are made by the Division Bench of this Court, if we peruse the facts on hand, we are of the opinion that a case is made out by applicants to seek leave to prefer appeal against judgment and order. Clause Nos.(iii), (iv), (v) and (viii) of said paragraph 16 of the aforesaid Page 23 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined decision are clinching the issue and as such, apprehension of the applicants about being aggrieved is not based upon any psychological or imaginary injury and as such we are of the clear opinion that leave as prayed for deserves to be granted in the interest of justice.
28. Further, we have also noticed in the present proceedings that right from the day one, learned advocates for the applicants were apprehending that despite pendency of these applications and despite oral assurance given not to undertake any process, at the plaintiff's instance, revenue entry was effected on the basis of judgment and decree and despite objections raised by present applicants not to certify the same, revenue authorities have also certified the entry, which entire process according to learned advocates for the applicants has been undertaken at the instance of application of original plaintiff. Hence, we are of the clearly opinion that possible injury is not imaginary nor psychological. On the contrary, legitimate right of the applicants being lawful owners and their possessory title would be affected by virtue of impugned judgment and order. Hence, on consideration of overall material on record, we are of the Page 24 of 26 Downloaded on : Sat Sep 16 16:26:17 IST 2023 NEUTRAL CITATION C/CA/610/2023 ORDER DATED: 08/09/2023 undefined opinion that case is made out for granting present applications.
29. In the context of the aforesaid situation, judgment which has been relied upon by learned senior counsel Mr. Saurabh Soparkar reported in (2020) 9 SCC 501, if perusal of facts to be taken note of, no-doubt, to some extent, factual scenario might be looking similar but that was the case where person could not demonstrate effect of decree upon his legal rights how and in what manner adversely affected. However, in the instant case, it has been clearly demonstrated before us that applicants are likely to be affected by virtue of the directions contained in the impugned judgment and order and in the manner in which revenue proceedings are carried out. Hence, we are of the opinion that in the facts of the present case on hand, the ratio laid down and relied upon may not have any direct bearing to be followed as a straitjacket formula. Facts mentioned in paragraphs 21 and 22 are also indicative of the fact that background of present facts on hand are distinct. Hence we are of the opinion that said judgment is of no assistance to learned senior counsel Mr. Soparkar representing the original plaintiff.
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30. At this stage, we may point out that law on the issue of precedential value is quite clear and as held by the Hon'ble Apex Court that if facts are different, one additional fact would make a world of difference in applying the principle. Hence, considering the said proposition also in mind, we are of clear opinion that present applications deserve to be allowed.
31. We would make it clear that our findings of this decision are confined only in respect of the issue related to grant of leave to appeal and final rights of the parties shall be determined upon adjudication of the appeals on merits. Accordingly, applications for leave stand ALLOWED. Registry shall give regular number to the main appeals.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
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